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Terms

This Use Agreement (the “Agreement”) constitutes a binding contract between ShopUpz LTD (“we”, “us”, or “ShopUpz”) and you (the “Customer” or "you"). This Agreement governs the Customer’s use of ShopUpz, a software that allows you to manage inventory between your ecommerce platforms and or any other platforms that the client will choose to promote this product (the "Service" or the "Software").

BY ACCEPTING THIS AGREEMENT, THROUGH THE EXECUTION OF ONE OR MOE ORDER FORMS  THAT INCORPORATE THIS AGREEMENT (EACH, AN “ORDER FORM”), THE CUSTOMER IDENTIFIED IN THE ORDER FORM (THE “CUSTOMER”) AGREES TO ENTER INTO THIS AGREEMENT WITH SHOPUPZ (“CYARX”) AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.  

 

  1. DEFINITIONS

    1. ”Fees” means the fees, charges and payments set forth in the applicable Order Form executed between you and the Company;

    2. “Website” means the Customer’s e-commerce website (and any part thereof) or any other platform in which the Customer choose to promote his products;

    3. “Inventory” means Customer's commercial listings, orders, stock and additional relevant information;

    4. “Inventory management and integrations ” means listings and orders that allows users to view and/or purchase Customer's products from within the commerce platform or any other platform;

    5. “Marks” means trademarks, trade names, domain names and logos, whether registered or not.

    6. “Confidential Information” means any information, however disclosed by one party to the other party in connection with this Agreement, which is marked as confidential (or words of similar import), or is of a confidential or proprietary nature, or is disclosed in such a manner as to indicate to a reasonable person that the information is confidential or proprietary. 

The term "Confidential Information” does not include any information as to which the receiving party is able to demonstrate: (a) is, or after the date of disclosure under this Agreement becomes, generally available to the public other than as a result breach of this Agreement by the receiving party; (b) was already known by the receiving party prior to the time of disclosure under this Agreement, with no obligations of confidentiality; (c) was disclosed to the receiving party on a non-confidential basis by a third party that did not owe an obligation of confidentiality to the Disclosing Party; or (d) is developed by the receiving party independently.

  1. INSTALLATION

    1. ShopUpz may provide installation and implementation information with respect to the Software. 

    2. Upon installation of the Service, The Customer assumes sole and exclusive responsibility for any errors, omissions, bugs, viruses, or any other fault that may arise to the Inventory or the Inventory management and integrations or any other solution provider . The Customer will bear all risk of loss or damage to, the Inventory or the Inventory management and integrations. In no event we will be liable for any claim, loss or damage whatsoever or other direct, indirect, special, incidental, consequential loss or damage of any kind or nature arising out of the use of or inability to use the Service, even if we have been advised of the possibility of such damages. 

  2. USE OF SERVICE

    1. Subject to the terms of this Agreement we grant you a limited, non-exclusive, revocable, non-transferable, and non-sub licensable right, during the term of this Agreement, to use the Software, for the purpose of evaluation of the Service. 

    2. We may, upon our sole discretion, at any time, modify, replace or change the Service. Without limiting the foregoing, the Customer agrees that it will not use the Service other than in accordance with this Agreement. 

    3. Customer acknowledges that all technical and non-technical information and materials regarding the Service, its functionality, capabilities, structure, design and all other details related thereto, as well the details of this engagement and its performance, all constitute proprietary Confidential Information of ShopUpz. You will treat all such information as confidential in a manner no less protective than you use to protect your own similar assets, but in no event less than reasonable care. The Customer will not without the express prior written authorization of ShopUpz:

      1. Disclose such Confidential Information, or have them disclosed, directly or indirectly to any third party; or

      2. Demonstrate or copy the Service; or 

      3. Publish or otherwise disclose the Information to any third party; or 

      4. Modify, reuse, disassemble, decompile, reverse engineer or otherwise translate Service or any portion thereof. 

    4. When using the Service, you represent and warrant to us that you are the rightful owner of all rights in and to the Inventory, or are lawfully licensed by all the rightful owners to use, edit,  publish, disseminate or otherwise make available the inventory through the Website.

    5. You further represent and warrant that all Inventory and Inventory management and integrations
      , their distribution and dissemination do not violate or breach any licensing terms governing use of any third-party platforms on which the Inventory and the Inventory management and integrations
      are presented (including Facebook and YouTube, Google , if applicable). 

    6. Breach of this section ‎3 constitutes a material breach of the Agreement.

  3. FEEDBACK

    1.  You agree to provide us with information about use of the Service as requested by us, including all pertinent information at your disposal concerning bugs, errors and malfunctions in the Service, performance of the Service, its compatibility and interoperability as may be in your possession (collectively “Feedback”). From time to time we may ask you to ask your customers to fill out questionnaires about their use of the Service, and in such case, the answer to such questionnaires will also be considered Feedback hereunder. 

    2. You hereby assign all rights to the Feedback to us, including all intellectual property rights thereto, for any purpose the Company deems appropriate. You will not be entitled to any remuneration from us for such assignment or for our use of the Feedback. Any and all changes or amendments to the Service based on the Feedback will belong exclusively to us.

    3. Customer represents and warrants that it has obtained all permissions and consents, as may be necessary under any agreement or applicable law or, in order to allow us to use the Feedback in the manners specified above.

  4. RESTRICTIONS

    1. Except as expressly provided in subsection ‎‎3.1 above, you may not use, or have others use, or provide to third parties, the Service or any part thereof including by reselling, licensing, renting, leasing, transferring, lending, timesharing, assigning or redistributing the Service or any part thereof. 

    2. You may not use the Service in order to develop, or create, or permit others to develop or create, a similar or competitive product or software.

    3. You may not perform or attempt to perform any of the following: (i) breaching the security of the Service, or identifying any security vulnerabilities thereof; (ii) interfering with, circumventing, manipulating, impairing or disrupting the operation, or the functionality of the Service; (iii) working around or circumventing any technical limitations in the Service; or (iv) using any tool to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Service.

    4. YOU MAY NOT USE THE SERVICE FOR ANY ACTIVITY THAT CONSTITUTES, OR ENCOURAGES CONDUCT THAT WOULD CONSTITUTE, A CRIMINAL OFFENSE, GIVE RISE TO CIVIL LIABILITY OR OTHERWISE VIOLATE ANY APPLICABLE LAW. 

  5. FEES

    1. In consideration for the rights granted to you under this Agreement, you may be required to pay us, all applicable Fees, in accordance with the schemes, amounts, periods and payment terms set forth in this Agreement and the applicable Order Forms. All Fees are quoted in U.S Dollars, unless expressly stated otherwise.

    2. Payment will be affected by wire transfer to our bank account, according to the details we convey to you or by any other means of payment we determine from time to time.

    3. All amounts payable to ShopUpz, pursuant to this Agreement and the applicable Order Forms, are exclusive of any excise, sales tax, VAT, withholding tax or other governmental charges or transaction charges. The Customer is responsible for the payment of all such applicable taxes or charges and will remit grossed-up payments, to ShopUpz, to include all such taxes and transaction charges, except for any taxes based solely on ShopUpz’s net income.

    4. All Fees paid by the Customer are non-refundable. The Customer is responsible for paying all applicable Fees, whether or not it has actively used the Service.

    5. Without derogating from any other rights and remedies available to us under the applicable law, overdue fees will accrue interest at the rate of 0.75% per month or part thereof, cumulative monthly on the linked capital from the due date until the date of actual payment. The Customer agrees to reimburse us for all legal costs and attorney fees we incur in the course of collecting its overdue fees.

    6. Failure to settle any overdue fee within thirty (30) calendar days of its original due date will constitute a material breach of the Agreement.

  6. TERM AND TERMINATION

    1. This Agreement commences upon the earlier of: (a) signature by both parties’ hereto, and (b) first installation or use by you of the Service. This Agreement will continue until terminated by either party, with no less than forty eight (48) hours prior, written notice, to the other party (the “Term”).

    2. Notwithstanding the aforesaid, either party may terminate this Agreement immediately upon notice in the event of a material breach of this Agreement by the other Party.

    3. Upon termination of this Agreement for any reason, you must (a) cease any and all use of the Service; and (b) permanently uninstall the Software from all servers and other devices in its possession or control; and (c) permanently delete all other copies of the Software or its components in its possession or control.

    4. All parts of this Agreement which would ordinarily be deemed to survive termination hereof will so survive, including but not limited to the following sections ‎3.3, ‎9, ‎11, ‎12 and ‎13

  7. SERVICE QUALITY, SECURITY AND AVAILABILITY

    1. We will use reasonable efforts to have the Service operate properly. However, at this stage – and as a Service that relies on third party Websites - we do not guarantee that the Service will operate in an uninterrupted or error-free manner, or that it will always be available, free from errors or omissions, malfunctions, bugs or failures, including, but not limited to, hardware failures, software failures and communication failures. If we receive notice of any failure or malfunction, or if we identify them by ourselves, we will endeavor to regain the Service’s full availability as soon as practicable. However, such incidents will not be considered a breach of this Agreement.

    2. You acknowledge that we may, at our sole discretion, suspend the operation of the Service, for periodic maintenance purposes and/or limit the scope of the services rendered by the Service to any particular features of the Service.

  8. INTELLECTUAL PROPERTY

    1. All rights, title and interest, including patents, industrial designs, copyrights, trademarks, trade names, trade secrets, domain names and other intellectual property rights, and any goodwill associated therewith, in and to the Service and any part thereof, including computer code, graphic design, layout and the user interfaces of the Service, and all derivatives, improvements and variations thereof, are and will remain at all times, owned by us (or our licensors, if applicable). Other than the limited use rights expressly granted by this Agreement, this Agreement does not grant, sell, transfer, or assign any right, title or interest in or to patents, copyrights, trademarks (whether registered or unregistered), trade names, trade secrets, domain names or any other rights, functions, licenses, or content with respect to, or in connection with, the Service.

    2. You grant us permission to use your Marks on our website and in our marketing materials and marketing communications, to indicate that you are/were our customer.

  9. DISCLAIMER OF WARRANTY 

YOU ACKNOWLEDGES THAT THESERVICE IS PRERELEASE CODE AND IS NOT AT THE LEVEL OF PERFORMANCE AND COMPATIBILITY OF A FINAL, GENERALLY AVAILABLE PRODUCT OFFERING. THE SERVICE MAY NOT OPERATE CORRECTLY, AND MAY CONTAIN ERRORS AND ARE PROVIDED FOR LIMITED EVALUATION ONLY.

THE SERVICE IS PROVIDED TO YOU “AS IS” AND “WITH ALL FAULTS”. WE DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, COMPATIBILITY, PERFORMANCE, SECURITY, ACCURACY, OR COMPLETENESS. YOU AGREE AND ACKNOWLEDGE THAT THE USE OF THE SERVICE IS ENTIRELY, OR AT THE MAXIMUM PERMITTED BY THE APPLICABLE LAW, AT YOUR OWN RISK. WITHOUT LIMITING THE FOREGOING, WE SPECIFICALLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR FULFILL ANY OF YOUR NEEDS. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING STATEMENTS REGARDING CAPACITY OR SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICE, WHETHER MADE BY OUR EMPLOYEES OR OTHERWISE, WILL BE DEEMED TO BE A WARRANTY BY US FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF CYARX WHATSOEVER.

  1. LIMITATION OF LIABILITY 

EXCEPT FOR BREACH OF OUR CONFIDENTIALITY OBLIGATIONS, TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, WE, INCLUDING OUR EMPLOYEES, DIRECTORS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON OUR BEHALF, WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, STATUTORY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGE OR LOSS (INCLUDING LOSS OF PROFIT AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT, CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY, ARISING FROM, OR IN CONNECTION, WITH THIS AGREEMENT, INCLUDING ANY USE OF, OR THE INABILITY TO USE THE SERVICE; ANY THIRD PARTY HARMFUL ACTS ADVERSELY IMPACTING YOUR IT SYSTEMS; ANY DAMAGE TO OR LOSS OF DATA; ANY RELIANCE UPON THE SERVICE; ANY ERROR, INCOMPLETENESS, OR INCORRECTNESS, OR INABILITY TO PROPERLY RECOVER DATA; OR ANY OTHER FAILURE, ERROR, OR BREAKDOWN IN THE FUNCTION OF THE SERVICE.

  1. INDEMNIFICATION. 

You agree to indemnify and hold harmless ShopUpz and its founder, directors, officers, employees, and subcontractors, upon our first demand, from, and against, any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, arising from or otherwise related to: (a) any breach by you of any term of this Agreement; (b) any third party claim which, should such claim be true, would constitute a breach by you of any representation or warranty herein; and (c) any claim against us by any third party, where such claim is made in connection to your use of the Service.

  1. GOVERNING LAW AND VENUE 

Regardless of your jurisdiction of incorporation, the jurisdiction where you engage in business or where you or your customers access or use the Service from, this Agreement and your use of the Service will be exclusively governed by and construed in accordance with the laws of the State of Israel without giving effect to any conflict of law principles which would result in the application of the laws of a jurisdiction other than the State of Israel. Any dispute, claim or controversy arising out of, connected with, or relating to this Agreement, the Service, or any use related thereto, will be under the sole and exclusive jurisdiction of the competent court in the Tel Aviv district of Israel.

  1. ASSIGNMENT

You may not assign the Agreement without our prior written consent. Any purported assignment without our prior written consent is void. To the greatest extent permissible by law, we may assign this Agreement in its entirety, including all right, duties, liabilities, performances and obligations herein, upon notice to the you and without obtaining your further specific consent, to a third-party, upon a merger, acquisition, change of control or the sale of all or substantially all of our equity or assets. By virtue of such assignment, the assignee assumes our stead, including all right, duties, liabilities, performances and obligations hereunder, and we are irrevocably released therefrom.

  1. COMPLETE TERMS AND SEVERABILITY 

This Agreement, together with each Order Form, constitutes the entire and complete agreement between the Customer and us concerning the subject matter herein. This Agreement supersedes all prior oral or written statements, understandings, negotiations and representations with respect to the subject matter herein. If any provision of this Agreement is held invalid or unenforceable, that provision shall be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining provisions will remain in full force and effect. This Agreement may be modified or amended only in writing, signed by the duly authorized representatives of both parties. 

  1. NO WAIVER 

Neither party will, by mere lapse of time, without giving express notice thereof, be deemed to have waived any breach, by the other party, of any terms or provisions of this Agreement. The waiver, by either party, of any such breach, will not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach.

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