PalUp Business Master Service Agreement

This Business Master Services Agreement (this “Agreement”) describes your rights and responsibilities as a customer of PalUp for Business, including the PalUp application programming interfaces (“APIs”) and other services for businesses. This Agreement is between you and Playsee Pte. Ltd and/or any of its affiliates, operating services under the brand PalUp (“PalUp”, “we” or “us”).  “You” or “Customer” means the entity you represent in accepting this Agreement or, if that does not apply, you individually.

If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree to this Agreement on behalf of the party that you represent. If you don’t have the legal authority to bind your employer or the applicable entity, please do not click the “Sign Up” (or similar button or checkbox) that is presented to you. 

PLEASE NOTE THAT IF YOU SIGN UP FOR PALUP ENTERPRISE EDITION USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU WILL BE DEEMED TO REPRESENT SUCH PARTY, (B) YOUR CLICK TO SIGN UP WILL BIND YOUR EMPLOYER OR THAT ENTITY TO THIS AGREEMENT, AND (C) THE WORD “YOU” OR “CUSTOMER” IN THIS AGREEMENT WILL REFER TO YOUR EMPLOYER OR THAT ENTITY. This Agreement is effective as of the date you first click “Sign Up” (or similar button or checkbox) or use or access PalUp for Business, whichever is earlier (the “Effective Date”). This Agreement does not have to be signed in order to be binding. You indicate your assent to this Agreement by clicking “Sign Up” (or similar button or checkbox) at the time you register for PalUp for Business, create a PalUp Enterprise Account, or place an ordering document through PalUp webpage that you use to purchase the Services (“Order Form”). 

1. Definitions

“Account(s)” means an account enabling a User to access and use PalUp for Business through User login credentials.

“Administrator User” means an individual, other than a User, who Customer has named to manage, access and use the Services on Customer’s behalf under the rights granted to Customer pursuant to this Agreement.

“Affiliate” of a Party means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. For purposes of this definition, the “control” of an entity means the direct or indirect ownership or control of more than 50% of the voting interests of such entity.

“Background IP” means any intellectual property, materials and other content that PalUp provides to Customer in connection with its performance of Professional Services that (i) was in existence prior to performance of PalUp’s Professional Services obligations set forth in the applicable Order Form, (ii) is conceived or developed at any time wholly independently of such Professional Services or (iii) was otherwise not specifically created for Customer.  

“Beta Services” means the features and/or functionality of the Solution that may be made available to Customer to try at its option at no additional charge and which are clearly designated as beta, pilot, limited release, non-production, early access, evaluation, labs or by a similar description. 

“Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential at the time of disclosure to the Receiving Party, or that a reasonable person should consider confidential or proprietary given the nature of the information and the circumstances under which it is disclosed. PalUp’s Confidential Information shall include the PalUp Property and the terms of this Agreement and all Order Forms.  Notwithstanding the foregoing, Confidential Information shall not include any information that the Receiving Party can show: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party (excluding patentable subject matter which is not subject to this exclusion); or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

“Customer Data” has the meaning set forth in Section 5(a) of this Agreement.

“Customer Property” means any content (including text, images, illustrations, charts, tables and other materials) supplied by Customer to PalUp, either directly or indirectly (for example, through integration with a Third Party Product), and including Customer Data.

“Documentation” means all documentation and other instructional material made available by PalUp regarding the use of the Solution.

“Order Form” means an ordering document for Services purchased from PalUp that has been executed hereunder by the Parties (or, in the case of an online transaction, which has been electronically accepted by Customer).

“Personal Data” means any information relating to an identified or identifiable natural person (‘data subject’) where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person.

“PalUp Property” means (i) the Solution, (ii) the Documentation, (iii) Background IP, (iv) PalUp Intellectual Property Rights, and (v) all content and other materials and software supplied by PalUp in connection with, or used by PalUp in providing, any Services.

“Intellectual Property Rights” means any right or interest in and to any current or future patent, copyright, trademark, trade secret, or service mark including moral rights, know-how, mask works, and any other work that may be the subject matter of intellectual property or industrial property rights protection of any state, country or jurisdiction, whether registrable or not.

“Professional Services” means fee-based setup, implementation, configuration, consulting, training, content development and other services (other than the Solution) that PalUp provides pursuant to an Order Form and which is detailed in an attached statement of work.

“Services” means the Solution and Professional Services, but in all cases excluding Beta Services.

“Solution” means the platform or software services provided by PalUp, including (i) APIs, API Key, and response to API calls, (ii) the web and other user interfaces, applications, and software provided to Users, and (iii) any modifications, updates, derivative works, optional modules, custom or standard enhancements, updates, and upgrades to or of any of the foregoing.

“Subscription Term” means the subscription period set forth in the applicable Order Form during which PalUp agrees to provide the Solution to Customer.

“Third Party Products” means certain third-party applications, integrations, systems, or services used by Customer, but not supplied by PalUp, that are designed to interoperate with the Solution.

“Users” means all users that are authorized to access Customer’s account on the Solution.

2. Services

1. Solution

(i) Provision of Solution. Subject to the payment of all applicable Fees and for the applicable Subscription Term, PalUp hereby grants to Customer a limited, revocable, non-sublicensable, non-transferable, non-exclusive right to access and use the Solution in accordance with the terms and conditions of this Agreement and all Order Forms. PalUp may, in its sole discretion, permit use of the Services by an Affiliate of Customer, but in each such case, an Affiliate will be required to execute a separate Order Form with PalUp that references this Agreement.

(ii) Order Forms. Each Order Form for Solution will describe additional mutually agreed-upon limitations on use of the Services, including, to the extent applicable, Fees, the Subscription Term, the number of and/or class of permitted Users and the permitted scope of use of the Solution. To the extent an Order Form provides for a Subscription Term that automatically renews or provides Customer with pricing for Subscription Upgrades (as defined below), the Parties may confirm, thereby creating a binding obligation with respect to, such renewal or Subscription Upgrade via email without the need for an additional Order Form executed by the Parties. 

(iii) Free Trials. If Customer registers for a free trial for the Solution or a Subscription Upgrade (“Free Trial”), PalUp will make the Solution or Subscription Upgrade available to Customer and its Users on a trial basis free of charge until the earlier of (A) the end of the Free Trial period; (B) the date upon which Customer’s and its Users’ aggregate use of the Free Trial exceeds any usage or quantity limitations imposed thereon; (C) the start date of any Subscription Term purchased by Customer; or (D) termination of the Free Trial by PalUp in its sole discretion. Additional trial terms and conditions may appear on the Free Trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. ANY CUSTOMER PROPERTY CUSTOMER SUBMITS TO THE SOLUTION, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE TO THE SOLUTION OR SUBSCRIPTION UPGRADES BY OR FOR CUSTOMER DURING THE FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES THE SAME SOLUTION AS COVERED BY THE FREE TRIAL OR CUSTOMER EXPORTS SUCH CUSTOMER PROPERTY BEFORE THE END OF THE FREE TRIAL PERIOD.

(iv) Third Party Products. Customer or its Users may choose to use the Solution with certain Third Party Products. Use of Third Party Products is subject to Customer’s agreement with the relevant provider of such Third Party Products and are not governed by, or subject to, the terms and conditions in this Agreement. PalUp will have no liability for Customer’s or its Users’ use of Third Party Products, including their security, functionality, operation, availability, or interoperability or how the Third Party Products or their providers use Customer Property (including Personal Data). By enabling or otherwise using a Third Party Product with the Services, Customer hereby authorizes PalUp to access and exchange Customer Property with the Third Party Product on Customer’s behalf, and to use any anonymized output generated or returned by such Third Party Product to develop and improve the Services. To the fullest extent permitted by applicable law, PalUp is not responsible for any Third Party Products or their provider’s use of any exported information (including Customer Property). In particular, in the event that Customer or its Users choose to utilize elements of the Solution that leverage artificial intelligence and machine learning capabilities, Customer agrees to the terms of the Generative AI Acknowledgement located here [LINK TO APPENDIX A].

2. Professional Services

   (i) Scope. PalUp will perform the Professional Services set forth in an Order Form executed by the Parties or signing up online, which shall include and/or specify a description of the Professional Services to be provided to Customer and the applicable Fees and payment terms. If either Customer or PalUp request a change in the scope of Professional Services, any agreed-upon changes, including changes in Fees and expenses, will not be binding against either Party unless set forth in a writing executed by the Parties (each, a “Change Order”). 

   (ii) Background IP.  PalUp hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive license to access and use the Background IP, if any, that is included in a Professional Services deliverable (“Professional Services Deliverable”) solely as necessary for Customer to use that Professional Services Deliverable; it being understood that the foregoing license does not permit Customer to exploit any Background IP apart from the specific Professional Services Deliverable in which it is included.

   (iii) Customer Cooperation. Customer acknowledges that PalUp’s ability to timely deliver the Services is dependent upon Customer’s ongoing cooperation and assistance. Accordingly, Customer will supply to PalUp, on a timely basis, all information, materials, and assistance reasonably necessary for PalUp to perform the Services, including the Customer Property, User lists, and any additional information, material, or assistance identified in an Order Form.  Customer will also appoint and actively manage the key roles identified in the statement of work relating to such Order Form. PalUp’s period of performance shall be equitably extended to account for any delays resulting from Customer’s failure to fully comply with the foregoing.  

   (iv) Staffing. PalUp shall be responsible for staffing decisions with respect to employees or contractors utilized in the performance of any Service under this Agreement, and shall have the right at any time to delegate, subcontract, remove or replace any of its personnel or contractors assigned to perform any Services under this Agreement. PalUp will be responsible for the acts or omissions of its employees and contractor personnel and any delays caused by the reassignment or replacement thereof.

   (v) Expense Reimbursements. Customer will reimburse PalUp for reasonable travel and other expenses incurred in connection with performing the Professional Services, provided that Customer approves such expenses before they are incurred.

3. Fees and Payment Terms

1. Fees. Customer will pay PalUp all fees specified in or otherwise incurred pursuant to an Order Form (“Fees”) in accordance with this Section 3 and the applicable Order Form. If Customer adds additional Solution or otherwise upgrades its tier of Solution during a Subscription Term (a “Subscription Upgrade”), any incremental Fees associated with such Subscription Upgrade will be prorated over the remaining period of the then-current Subscription Term and charged to Customer and due and payable in accordance with Section 3(b). In addition, unless otherwise set forth in an Order Form, Customer will be deemed to have executed a Subscription Upgrade with PalUp if its usage of the Solution exceeds the previously purchased usage levels. No refunds or credits will be provided for partial months of the service, any decrease in the number of users, or for months unused on a subscription.  If Customer decreases the number of users in its Subscription, Customer will be charged at the new rate beginning with the next billing cycle.  In any renewal Subscription Term of such Order Form, the Fees will reflect any such Subscription Upgrades. Fees are quoted and payable in United States dollars. Payment obligations are non-cancellable and Fees paid are non-refundable, except as otherwise expressly set forth in this Agreement.
2. Invoices and Payment. By providing a credit card or other payment method accepted by PalUp (“Payment Method”) for the Services, Customer agrees that PalUp is authorized to charge to the elected Payment Method all applicable Fees when due, and any other charges Customer may incur in connection with Customer’s use of the Services. For all purchased Services, the Payment Method will be charged on a monthly basis or at the interval indicated in the applicable Order Form. If PalUp does not collect a Payment Method from Customer at the time of purchase, PalUp will invoice Customer for the charges at the email address on file with PalUp. Customer will pay all invoiced amounts within thirty (30) calendar days of the invoice date.  Unless otherwise specified in an Order Form, Customer will pay all Fees on an annual, prepaid basis. Overdue invoices are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all expenses of collection.
3. Taxes. Customer is solely responsible for the payment of all taxes, assessments, tariffs, duties, or other fees imposed, assessed, or collected by or under the authority of any governmental body arising from PalUp’s provision of the Services hereunder (collectively, “Taxes”), except any taxes assessed upon PalUp’s net income. If PalUp is required to directly pay Taxes related to Customer’s use or receipt of any Services, Customer agrees to promptly reimburse PalUp for any amounts paid by PalUp.
4. Free Trials. If Customer provides billing information when signing up for the Free Trial, Customer will not be charged by PalUp until the Free Trial has expired.  Upon the expiration of the Free Trial period, unless Customer previously canceled its Services by contacting PalUp at support@palup.ai. PalUp reserves the right to automatically charge Customer Fees applicable to the type and quantity of Services provided to Customer during the Free Trial, at PalUp’s then-applicable rates.

4. Access and Use

1. Access. During the Term of this Agreement, and subject to the terms and conditions of this Agreement, PalUp hereby grants to Customer the right to access and use the Solutions as provided by PalUp from PalUp’s hosted network for Customer’s own internal business purposes (which may include allowing access to the Solutions by Customer’s customers and prospective customers (“End Users”) to facilitate interactions with such individuals). For the avoidance of doubt, nothing in this Agreement is intended to grant Customer any right, title, or interest in or to any intellectual property, nor any Intellectual Property Rights in, nor access to, any code (including in object code, source code, or any other format), databases, or other underlying components of the Services. Once Customer enters into this Agreement, PalUp will provide Customer with an API Key. Customer shall set-up and use the API Key in compliance with the associated Documentation to be able to use the API. 

2. Obligations. Customer shall: 

   (i) Identify the Administrator Users that Customer wants to grant access and use of the Services at the initial set-up stage. Thereafter, Customer is responsible for establishing individual user accounts and account login credentials for each of Customer’s subsequent Users. Customer may only make employees, consultants, contractors, or agents Administrator Users. Customer is responsible for providing accurate and up-to-date Account information for Administrator Users and Users.

   (ii) Require Administrator Users maintain the confidentiality of their account login credentials and not share their account login credentials with any other individual.

   (iii) Be responsible for its Administrator Users and Users for any noncompliance with the terms of this Agreement and any and all applicable laws of any and all applicable jurisdictions.

   (iv) Remain responsible for all use of the Services through Customer’s account, including any fees associated, regardless of whether such use or user was specifically authorized by Customer.

   (v) Not make Account access credentials available to third parties, share individual login credentials between multiple Users on an account, or resell or lease access to the Account. Customer will promptly notify PalUp if it becomes aware of any unauthorized access to or use of the Account or the Services.

   (vi) Not share the API Key with any third party without PalUp’s prior written consent, and at the expiration of this Agreement for any reason whatsoever, delete the API Key. Any unauthorized disclosure of the API Key by Customer will constitute a material breach of this Agreement.

   (v) At all times use the Services in compliance with PalUp’s User Rule, available at PalUp Rules, which is incorporated into these terms by this reference.

3. Integrated Services. Customer acknowledges that the Solution operate on, are integrated with, or are provided using APIs and other services. PalUp’s provision of any Solution is subject to all limitations identified as applicable to the Solution (ex: API call limitations or session length limitations), and Customer will comply with all such limitations. Where an API or other service integration is provided by companies that are not affiliated with PalUp, Customer acknowledges that Customer may be required to install certain software applications and agree to additional terms and conditions set forth by the companies providing the integrated services in order to access the Solution. Where Customer engages with its own integrator, Customer will require such integrator to implement the appropriate endpoints to track Usage Data correctly. NOTWITHSTANDING ANY APPROVAL OF A THIRD-PARTY PRODUCTS IMPLEMENTATION, CUSTOMER UNDERSTANDS THAT PALUP DOES NOT WARRANT OR GUARANTEE THESE THIRD-PARTY PRODUCTS NOR THAT THE THIRD-PARTY PRODUCT WILL PROPERLY INTERACT WITH THE SOLUTION.

4. Content. Users and End Users may provide input to the Solution (“Input”), and receive output from the Solution based on the Input (“Output”). As between Customer and PalUp, and to the extent permitted by applicable law, Customer retains all ownership rights in Input. PalUp hereby assign to Customer all our rights, title, and interest, if any, in and to Output. PalUp shall process and store Input and Output in accordance with Customer’s instructions and as necessary to provide Customer with the Services, comply with applicable law, and enforce this Agreement. Customers are responsible for all Input and represent and warrant that it has all rights, licenses, and permissions required to provide Input to the Services. Customers are solely responsible for all use of the Outputs and evaluating the Output for accuracy and appropriateness for particular use cases, including by utilizing human review as appropriate. Customer acknowledge, and must notify its Users and End Users that factual assertions in Outputs should not be relied upon without independently checking their accuracy, as they may be false, incomplete, misleading or not reflective of recent events or information. Customer further acknowledge that Outputs may contain content inconsistent with PalUp’s views. Customers acknowledge that due to the nature of PalUp Services and artificial intelligence generally, Output may not be unique and other users may receive similar content from our Services. Responses that are requested by and generated for other users are not considered Customer’s Output. PalUp’s assignment of Output above does not extend to other users’ output or any content delivered as part of a Third Party Products.

5. Proprietary Rights

1. Customer Property. You represent and warrant that you have all rights, interest, ownership, licenses, consents, permissions, power and/or authority necessary to grant the rights and license granted in these Terms for your User Content. You agree that such User Content will be, as applicable, truthful, substantiated, lawful, and non-misleading and will not contain material subject to copyright or other proprietary rights. At any time and without notice, PalUp has absolute discretion to access, review, edit, screen, and delete any User Content at any time and for any reason, including to provide and develop the Services or to investigate any suspected violation of these Terms or applicable law; however, PalUp has no obligation or duty to do so. You alone remain responsible for your User Content and for ensuring that your User Content fully complies with applicable laws, rules, and regulations.
2. PalUp Property. As between PalUp and Customer, PalUp retains all right, title, and interest in and to the PalUp Property, including all patent, copyright, trade secret, trademark or other intellectual property rights embodied in or related to the PalUp Property. Except as expressly set out in this Agreement, no right, title, or license under any PalUp Property is granted to Customer or implied hereby, and for any PalUp Property that is licensed to Customer, no title or ownership rights are transferred to Customer with such license. 

3. Licenses to PalUp. Customer hereby grants PalUp a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), and royalty-free license to access and use the Customer Property made available to PalUp or any of its Affiliates, solely as necessary for PalUp to provide the Services to Customer pursuant to this Agreement. Additionally, Customer grants PalUp a non-exclusive, revocable license to use Customer’s trademarks and logos to identify Customer as a subscriber of the Services; provided that, Customer may revoke such consent at any time in its sole discretion.  By submitting to PalUp any unsolicited suggestions, enhancement requests, comments, feedback or other input relating to the Services (“Feedback”), Customer and (as applicable) its Users grant to PalUp a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate such Feedback into the Services in any manner.

4. Usage Data. Usage Data is any performance data, statistics, and other data related to the use of the Solution, and any information derived from the implementation of or input into or use of the Solution, such as any synonyms, jargon, or other natural language processing feedback learned by the Services. All title to and interest in Usage Data and associated Intellectual Property Rights are the exclusive property of PalUp and, as applicable, its licensors. Customer acknowledges that PalUp may use and reproduce Usage Data for any purposes. To the extent such Usage Data is disclosed, it will only be disclosed in a generic, anonymized, or aggregated manner that does not identify any entity or any individual. PalUp shall implement reasonable technical safeguards that prevent reversal of such Usage Data and implement reasonable business processes to prevent inadvertent release of Confidential Information. Usage Data will not include any Personal Data.

5. Generative AI Services. Customer acknowledges that during the provision of the generative artificial intelligence (“GAI”) Services, Customer is directing PalUp to share data with PalUp’s then existing large language model (“LLM”) provider(s) and that if required under applicable law, Customer may have an obligation to notify its Users and End Users of the use of generative artificial intelligence tools, and that it is sharing data with PalUp and the LLM provider(s). Customer is solely responsible for making all such required disclosures to Users and End Users, and that if required under applicable law, obtaining Users’ and End Users’ consent.

6. Data Privacy and Security

The Data Processing Agreement with PalUp (“DPA”) is located here:[URL], and its Privacy Policy. The DPA and the privacy policy are incorporated by reference herein and is part of this Agreement.

7. Confidentiality

1. Customer Property. You represent and warrant that you have all rights, interest, ownership, licenses, consents, permissions, power and/or authority necessary to grant the rights and license granted in these Terms for your User Content. You agree that such User Content will be, as applicable, truthful, substantiated, lawful, and non-misleading and will not contain material subject to copyright or other proprietary rights. At any time and without notice, PalUp has absolute discretion to access, review, edit, screen, and delete any User Content at any time and for any reason, including to provide and develop the Services or to investigate any suspected violation of these Terms or applicable law; however, PalUp has no obligation or duty to do so. You alone remain responsible for your User Content and for ensuring that your User Content fully complies with applicable laws, rules, and regulations.
2. PalUp Property. As between PalUp and Customer, PalUp retains all right, title, and interest in and to the PalUp Property, including all patent, copyright, trade secret, trademark or other intellectual property rights embodied in or related to the PalUp Property. Except as expressly set out in this Agreement, no right, title, or license under any PalUp Property is granted to Customer or implied hereby, and for any PalUp Property that is licensed to Customer, no title or ownership rights are transferred to Customer with such license. 

3. Return of Confidential Information. At any time upon the request of the Disclosing Party, the Receiving Party will destroy all Confidential Information of the Disclosing Party, including all copies thereof and notes and other materials incorporating such Confidential Information, whether in physical or electronic f

4. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 7, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.

8. Warranties; Disclaimers

1. Mutual Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.

2. PalUp Warranties. PalUp warrants to Customer that the Professional Services shall be performed by PalUp in a professional and workmanlike manner, and the Solution purchased by Customer will, in all material respects, perform in accordance with the applicable portions of the Documentation. This warranty shall not apply to non-conformities, errors, or problems caused by acts within the control of Customer or any of its Users, or arising from Customer’s negligence or improper use of the Solution, from unauthorized modifications made to the Solution, from use of the Solution in an unsupported operating environment or manner, or that arises from Customer’s or any third party’s software or systems (including Third Party Products).  

3. Customer Warranties. Customer warrants that (i) it will not use the Solution for unlawful purposes or in a manner that infringes or otherwise violates the rights of any third party,(ii) it will, and will require that its Users, use the Services in compliance with applicable laws, and (iii) it will grant the rights and licenses needed by PalUp to perform under this Agreement and such grant will not violate or breach any third party terms or conditions.

4. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BUT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (1) THE SERVICES ARE PROVIDED “AS-IS”; (2) NEITHER PARTY MAKES ANY ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY KIND TO THE OTHER PARTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, (3) EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING, WITHOUT LIMITATION, ANY WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND (4) PALUP’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE SERVICES AGAIN. PALUP EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF ITS CUSTOMER’S OR USERS’ USE OF THE SERVICES.

5. Beta Services. PalUp may make Beta Services available to Customer at no charge, and Customer may choose to try such Beta Services in its sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms that will be presented to Customer. Beta Services are not considered the “Solution” under this Agreement for purposes of Section 8 (Warranties; Disclaimer) and Sections 8(a) (Indemnification by PalUp); however, all restrictions, PalUp’s reservation of rights and Customer’s obligations concerning the Services, and use of any Third Party Products shall apply equally to Customer’s use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date otherwise specified in writing by PalUp. PalUp may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Beta Services are provided “AS IS” with no express or implied warranty and are outside the scope of PalUp’s indemnification obligations.

6. GAI Services Disclaimer. Due to the probabilistic nature of artificial intelligence and machine learning, PalUp cannot and does not guarantee that any GAI generated responses will be 100% accurate. Customer acknowledges that GAI uses experimental technology and may sometimes provide inaccurate content, and that Customer should use discretion before relying on content provided by the GAI-powered Services. It is Customer’s responsibility to review all the source links provided along with any response generated by the GAI-powered Services, and advise Users and End Users to do the same. Notwithstanding any other language in this Agreement, PalUp will not be liable in any way for any damages resulting from the purchase or use of the GAI-powered Services, including but not limited to any lack of availability, delays, or errors caused or related to PalUp’s then existing LLM provider(s). PalUp shall implement reasonable technical and organizational measures to keep Customer’s API keys secure, but cannot guarantee the security of such keys from theft or authorized access or other misuse. Upon Customer’s written request, PalUp shall rotate Customer’s LLM’s API keys within five (5) business days of such request.

9. Indemnification

1. Indemnification by PalUp. PalUp will defend and pay Customer, its employees, directors and officers (the “Customer Indemnified Parties”) from and against any and all costs, damages and expenses (collectively, “Losses”), suffered or incurred by any Customer Indemnified Party, as a result of any claim brought by a third party (“Third Party Claim”) against a Customer Indemnified Party alleging that the use of the Solution in accordance with the terms and conditions of this Agreement infringes any patent, copyright, trademark or trade secret right of such third party (an “Infringement Claim”). Without limiting the foregoing, in the event that any portion of the Solution is likely to, in PalUp’s sole opinion, or does become the subject of an Infringement Claim, PalUp may, at its option and expense: (i) procure for Customer the right to continue using the allegedly infringing item, (ii) substitute a functionally equivalent non-infringing replacement for such item, or (iii) modify such item to make it non-infringing and functionally equivalent, or (iv) terminate the Agreement and any outstanding Order Forms and refund to customer prepaid unused Fees for the infringing items. PalUp shall have no liability for any Infringement Claim to the extent arising from (1) Customer’s use or supply to PalUp of any Customer Property; (2) use of the Solution in combination with any software, hardware, network or system not supplied by PalUp if the alleged infringement relates to such combination; (3) any modification or alteration of the Solution (other than by PalUp); or (4) Customer’s violation of applicable law or third party rights.

2. Indemnification by Customer. Customer will defend and pay PalUp, its employees, directors and officers (the “PalUp Indemnified Parties”) from and against any and all Losses, suffered or incurred by any PalUp Indemnified Party, arising from any Third Party Claim against a PalUp Indemnified Party alleging that any Customer Property or Customer’s use of the Services beyond the license granted in this Agreement infringes, violates or misappropriates any patent, copyright, trademark or trade secret right of any third party.

3. Indemnification Conditions. The Parties’ obligations under this Section 9 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim subject to indemnification under this Section 9, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party without the prior express written consent of the indemnified party, which shall not be unreasonably withheld. The rights and remedies set forth in this Section 9 are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable Third Party Claim.

10. Limitation of Liability

1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

2. Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE OR INCONVENIENCE SUFFERED BY THE OTHER PARTY OR BY ANY THIRD PERSON, TO THE EXTENT THAT SUCH LOSS, DAMAGE OR INCONVENIENCE IS CAUSED BY THE FAILURE OF THE OTHER PARTY TO COMPLY WITH ITS OBLIGATIONS UNDER THIS AGREEMENT.

11. Term and Termination

1. Term of Agreement. This Agreement commences on the Effective Date and shall remain in effect until terminated in accordance with Section 11(c).

2. Term of Subscriptions. Customer’s access to the purchased Solution shall commence on the start date specified in the relevant Order Form and continue for the Subscription Term specified on such Order Form.  At the expiration of each Subscription Term, the Subscription Term for all purchased Solution will automatically renew for the same period as the renewing Subscription Term, unless either Party elects to not renew by notifying the other Party in writing at least 30 days before such renewal (or at anytime before the renewal date, if the expiring Order Form provides for a month-to-month subscription). PalUp may increase Fees at renewal by providing Customer with prior written notice of such increase. Any introductory or temporary discount offered in a previous Subscription Term is one-time only and does not apply for a renewal Subscription Term. For clarity, pricing for a renewal Subscription Term will be based on PalUp’s pricing in effect at the time of the applicable renewal. 

3. Termination. Either Party may terminate this Agreement and/or any Order Form by providing written notice to the other Party in the event the other Party materially breaches any of its duties, obligations or responsibilities under this Agreement and fails to: (i) cure such breach within thirty (30) days after receipt by the breaching Party of written notice specifying the breach, or (ii) if the breaching Party is incapable of curing such breach within thirty (30) days, provide the other Party with an acceptable plan for curing such breach within ten (10) days after receipt of such notice and thereafter curing such breach in accordance with such plan. In addition, a Party may terminate this Agreement by providing written notice to the other Party if there are no Order Forms in effect for more than thirty (30) days, continuously. 

4. Effect of Termination. Expiration or termination of one Order Form shall not affect any other Order Forms. In the event of termination of this Agreement, upon Customer’s written request made within thirty (30) days after the effective date of termination, Customer shall be entitled to export the Customer Property for up to ninety (90) days from the date such written request is received. After such ninety (90) day period, PalUp shall have no obligation to maintain or provide any Customer Property and may thereafter unless legally prohibited, delete all Customer Property in its possession.

5. Surviving Provisions. The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 1, 3, 5, 7, 8(d), 9, 10, 11(d), and 12. Termination or expiration of this Agreement shall not affect any obligation accrued or arising prior to such termination or expiration.

12. Miscellaneous Provisions

1. Relationship. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties, and PalUp will be considered an independent contractor when performing any Services hereunder.

2. Customer Affiliates. An Affiliate of Customer may purchase Services subject to the terms of this Agreement by executing Order Forms with PalUp hereunder. By entering into an Order Form hereunder, the Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.  

3. Acquired and Divested Businesses.  If Customer has purchased Solution under an Order Form for an unlimited number of Users within the Customer’s enterprise, a particular business unit or division or otherwise (an “ELA”), any entity or business unit acquired by Customer after the applicable Order Form date (an “Acquired Business”), including its employees, shall not be entitled to any Solution provided under such Order Form.  In the event an Acquired Business had previously entered into an agreement with PalUp (a “Prior Agreement”), its new status as a Customer Affiliate shall not create (i) any entitlement on the part of Customer to terminate a Prior Agreement or any Order Forms, (ii) any obligation of PalUp to refund or waive monies paid or payable under either the Prior Agreement or any Order Form, or (iii) any obligation for PalUp to extend or apply any favorable pricing in such Prior Agreements to purchases made under any Order Forms or to subsequent purchases made under the Prior Agreement.  If an entity or business unit ceases to be owned by Customer during the Subscription Term of any ELA (a “Divested Entity”), the Divested Entity shall not be entitled to any Services provided under such Order Form after the date on which it ceases to be owned or controlled by Customer without PalUp’s prior written consent, which shall not be unreasonably withheld.

4. Entire Understanding. This Agreement (including the DPA (if applicable) and all Exhibits and Order Forms, which are incorporated herein by reference) constitutes the entire agreement between the Parties as to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Customer purchase order or in any other ordering documentation (excluding Order Forms) are hereby rejected. Such terms will not be deemed incorporated into or form any part of this Agreement, and all such terms or conditions are null and void.  

5. Modification; Waiver. Except for PalUp’s modification or update of the Documentation or the Solution, or any policies as necessary to comply with applicable law, rules, regulations, no modification of this Agreement, and no waiver of any breach of this Agreement or right under this Agreement, is legally binding against the other Party unless in writing and signed or electronically accepted by both Parties. 

6. Governing Law; Venue. This Agreement shall be governed by the laws of Singapore, and the competent courts residing in Singapore shall have exclusive jurisdiction to hear any disputes arising hereunder.  Notwithstanding the foregoing, either party may seek an injunction or other equitable relief in any court of competent jurisdiction in order to prevent a breach or threatened breach of this Agreement.

7. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party; provided, however, a Party may assign this Agreement in its entirety, together with all rights and obligations hereunder, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this Agreement. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

8. Notices. All notices under this Agreement to Customer shall be in writing and shall be delivered to the addresses first set forth in the Order Form(s). Notices to PalUp shall be addressed to support@palup.ai. Either Party may change its address for notice by giving notice of such address change in the manner provided herein. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.

9. Anti-Corruption. Customer acknowledges and agrees that it has not received or been offered any illegal bribe, kickback, payment, gift or thing of value from any PalUp employees, agent or representative in connection with this Agreement, other than reasonable gifts and entertainment provided in the ordinary course of business. Customer will promptly notify PalUp if it offers or receives any such improper payment or transfer in connection with this Agreement.

10. Force Majeure. Except for performance of a payment obligation, neither Party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, epidemics, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control. In the event any of the foregoing events results in PalUp not being able to provide the Solution for a period of more than thirty (30) days, then either Party may terminate the Agreement upon written notice to the other Party.

11. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

Appendix A: Generative AI Acknowledgement 

As noted throughout our website, PalUp’s services use artificial intelligence (“AI”) and machine learning. By agreeing to use such services and any services that link to this page (collectively, “AI Services”), you agree to this Generative AI Acknowledgement.

1. Accuracy

   We are constantly working to improve the AI Services to make them more accurate, reliable, safe and beneficial. While we have made every effort to provide the most accurate information possible, we cannot guarantee that AI-generated responses will be 100% accurate due to the probabilistic nature of AI and machine learning. 

   You understand the AI Services use experimental technology and may sometimes provide inaccurate content. You also understand that you should use discretion before relying on content provided by the Services, and that you should read all the source links provided along with any response generated by the AI Services.

2. Disclaimer

   THE AI SERVICES ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES AND LICENSORS MAKE NO WARRANTIES (EXPRESS, IMPLIED, STATUTORY OR OTHERWISE) WITH RESPECT TO THE SERVICES, AND DISCLAIM ALL WARRANTIES INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR TRADE USAGE. WE DO NOT WARRANT THAT THE AI SERVICES WILL BE UNINTERRUPTED, ACCURATE OR ERROR FREE, OR THAT ANY CONTENT WILL BE SECURE OR NOT LOST OR ALTERED.

3. Limitation of Liability

   YOU AGREE THAT TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL WE, OUR PROVIDERS, OR OUR OR THEIR RESPECTIVE AFFILIATES, INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS (COLLECTIVELY, THE “PALUP PARTIES”), BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR OTHER DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES, THE SUGGESTIONS, OR THESE TERMS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHER THEORY, EVEN IF ANY SWIMM PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, AND EVEN IF THE DAMAGES ARE FORESEEABLE.

   YOU AGREE THAT TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE SWIMM PARTIES’ TOTAL AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES, THE SUGGESTIONS, OR THESE TERMS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE GREATER OF THE AMOUNT YOU PAID TO US FOR ACCESS TO OR USE OF THE  AI SERVICES (IF ANY) IN THE SIX MONTHS PRECEDING THE DATE SUCH DAMAGES, LOSSES, AND CAUSES OF ACTION FIRST AROSE AND $100. THE FOREGOING LIMITATIONS ARE ESSENTIAL TO THESE TERMS AND WE WOULD NOT OFFER THE SERVICES TO YOU UNDER THESE TERMS WITHOUT THESE LIMITATIONS.

   THE LAWS OF SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES OR CERTAIN TYPES OF DAMAGES, SO SOME OR ALL OF THE DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THESE TERMS MAY NOT APPLY TO YOU.

4. Severability 

   If any provision of this Acknowledgement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision will be eliminated or limited to the minimum extent necessary to comply with applicable law, such that the remaining provisions of this Acknowledgement will continue in full force and effect.