These Terms of Service (this “Agreement”) govern your access to and use of the services, data, and tools provided by upcell, LLC (“upcell,” “we,” or “us”) through upcell.io or related platforms (the “Service”).
By accessing or using the Service, you agree to this Agreement. If you are using the Service on behalf of an organization, you represent that you have authority to bind such organization.
THIS AGREEMENT CREATES A BINDING LEGAL AGREEMENT BETWEEN YOU AND UPCELL, AND INCLUDES AN ARBITRATION CLAUSE (IN SECTION 21) UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY. PLEASE READ THIS AGREEMENT CAREFULLY.
Definitions
The following defined terms apply throughout this Agreement. Additional defined terms may appear in individual sections where indicated.
“Additional Rules” means any additional written policies or usage guidelines relating to the Service provided by upcell to Client, including through the Service interface, email, or an Order Form.
“Agreement” means these Terms of Service together with all Order Forms, any executed Data Processing Agreement, and the Privacy Policy, each of which is incorporated herein by reference.
“Applicable Data Protection Laws” means all laws and regulations applicable to the processing of Personal Data under this Agreement, including (as applicable) the GDPR, UK GDPR, CCPA/CPRA, and any other applicable national, state, or local privacy laws.
“Authorized Users” means the individual employees or contractors of Client who are authorized by Client to access and use the Service under this Agreement.
“Chrome Extension” means the upcell browser extension that enables Authorized Users to capture public professional profile data while visiting professional networking platforms.
“Client” means the individual or entity that enters into this Agreement with upcell, whether identified as “Client,” “Customer,” or “you” in the Agreement or an applicable Order Form.
“Confidential Information” has the meaning given in Section 6.1.
“CRM” means a customer relationship management platform to which enriched records are delivered through the Service at Client’s direction.
“Customer Personal Data” means personal data submitted to or processed through the Service by or on behalf of Client. Where a DPA is in place, this term has the meaning given in that DPA.
“Data Processing Agreement” or “DPA” means the upcell Data Processing Agreement available at upcell.io/legal/dpa, which governs upcell’s processing of Customer Personal Data on Client’s behalf and is incorporated into this Agreement where applicable.
“Disclosing Party” has the meaning given in Section 6.1.
“Feedback” means any comments, feedback, suggestions, or ideas related to the Service provided by Client or its Authorized Users to upcell.
“Fees” means the fees payable by Client to upcell as set forth in the applicable Order Form.
“GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council.
“Initial Term” means the subscription term specified in the applicable Order Form.
“IP Claims” means claims involving intellectual property rights, including patent, trademark, copyright, and trade secret claims.
“Liabilities” means any and all third-party claims, actions, proceedings, suits, liabilities, losses, damages, costs, and expenses, including reasonable attorneys’ fees.
“OAuth” means the open authorization standard used by upcell to authenticate Authorized Users. upcell does not issue or manage usernames or passwords.
“Order Form” means a mutually executed order form or similar document that specifies the Service, Fees, billing terms, and subscription period applicable to Client’s use of the Service.
“Our Property” means the Service, upcell Information, and any technology, infrastructure, and software used to deliver the Service, together with all intellectual property rights therein.
“Personal Data” has the meaning given under Applicable Data Protection Laws. For the purposes of this Agreement, it includes any information relating to an identified or identifiable natural person processed in connection with the Service.
“Privacy Policy” means the upcell Privacy Policy available at upcell.io/legal/privacy-policy, which is incorporated into this Agreement by reference and governs upcell’s collection and use of personal data.
“Receiving Party” has the meaning given in Section 6.1.
“Security Incident” means a confirmed breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Personal Data in upcell’s possession or control.
“Service” means the upcell platform, including the Chrome Extension, the multi-vendor enrichment service, CRM integration tools, and related features and functionality, as described in the applicable Order Form.
“Taxes” means all sales, use, excise, value-added, or other taxes, duties, or governmental charges of any kind, excluding taxes based on upcell’s net income.
“UK GDPR” means the GDPR as it forms part of UK domestic law by virtue of the European Union (Withdrawal) Act 2018.
“upcell Information” means information about individuals made available to Client through the Service, as described in and licensed under an applicable Order Form.
Terms related to data processing not defined above (including Controller, Processor, Processing, Sub-Processor, and Standard Contractual Clauses) have the meanings given in the DPA. In the event of a conflict between a definition in this Agreement and a definition in the DPA with respect to data processing matters, the DPA definition controls.
Nature of the Service
2.1 General.
The Service allows Clients to access or export upcell Information, sales intelligence data, and related tools, each described and licensed in separate Order Forms, designed to optimize sales performance and drive better outcomes.
2.2 Children.
The Service is not directed to persons under the age of 16. upcell does not knowingly collect Personal Data from children under the age of 16. If you are under the age of 16, you are not permitted to use the Service.Our Ownership Rights
All right, title and interest in and to Our Property is owned by upcell (or its licensors). Except as expressly provided, no rights or licenses in or to Our Property are granted herein. The mark UPCELL, and any associated logos, are registered or unregistered trademarks or service marks of upcell or its licensors. You may not use them for any commercial purpose without our explicit written consent.
Our Ownership Rights
All right, title and interest in and to Our Property is owned by upcell (or its licensors). Except as expressly provided, no rights or licenses in or to Our Property are granted herein. The mark UPCELL, and any associated logos, are registered or unregistered trademarks or service marks of upcell or its licensors. You may not use them for any commercial purpose without our explicit written consent.
License Grants and Restrictions
4.1 License.
Subject to this Agreement and any applicable Order Form, upcell grants Client a limited, non-exclusive, non-transferable, non-sublicensable right to use upcell Information solely for Client’s internal business purposes, including sales, marketing, and customer engagement.
4.2 Restrictions on Use.
Client may not use the Service or any upcell Information in connection with marketing or promoting the following: (a) adult products or conduct, (b) guns, ammunition or other weapons, (c) tobacco or marijuana products, (d) alcohol products, (e) credit repair or payday loan products, (f) hate speech or libelous content, (g) any product that infringes upon any intellectual property right, (h) any other product that is illegal in the place in which it is offered, sold or shipped, or (i) any purpose covered by the Fair Credit Reporting Act, including evaluation of creditworthiness, or for employment or tenancy purposes.
4.3 Client Representations on Lawful Use.
By accessing and using the Service, Client represents and warrants that (a) its use of the Service and any upcell Information complies with all Applicable Data Protection Laws and anti-spam laws; (b) where Client processes Personal Data of individuals in the EEA, UK, or other jurisdictions with data protection requirements, Client has a lawful basis for such processing; (c) Client will comply with all applicable laws governing electronic communications and outreach; and (d) any Personal Data Client submits to or processes through the Service was obtained lawfully.
4.4 Privacy Compliance.
Additional privacy compliance terms may be included in an Order Form where required by Applicable Data Protection Laws. Clients subject to the GDPR or UK GDPR must execute the DPA with upcell prior to submitting Personal Data of EEA or UK residents through the Service. Contact [email protected] to obtain the DPA.
4.5 No Resale.
Client agrees not to resell, sub-license, or transfer any aspect of the Service, including any upcell Information.
4.6 No Harvesting or Scraping.
Client agrees not to (a) harvest or otherwise collect information from the Service through unauthorized automated or bulk means; (b) take any action that imposes an unreasonable load on the Service or bypasses access controls; (c) crawl, scrape, or spider any part of the Service; or (d) otherwise interfere with the use or operation of the Service.
4.7 Account Security.
Access to the Service is provided through OAuth authentication. upcell does not issue or manage usernames or passwords. Client is responsible for the security of its OAuth provider account and any third-party API keys connected to the Service. Client agrees to (a) maintain OAuth provider account security in accordance with that provider’s recommendations; (b) not authorize access through credentials belonging to another individual; (c) promptly notify upcell at [email protected] of any suspected unauthorized access; and (d) ensure Authorized Users comply with this Agreement. upcell will not be liable for losses arising from a compromise of Client’s OAuth provider account or connected API credentials.
4.8 Additional Rules.
upcell may provide Additional Rules through the Service interface, email, or an Order Form. Client agrees to comply with Additional Rules, provided they do not materially reduce the functionality of the Service or Client’s rights under this Agreement. In the event of conflict between this Agreement and Additional Rules, this Agreement controls unless an Order Form expressly states otherwise.
Data Processing and Client Data
5.1 Client Data Use.
Customer Personal Data processed through the Service is used solely to provide the Service to Client. upcell does not use Customer Personal Data to build, enhance, or supplement upcell’s own proprietary databases, develop new data products for third parties, or for any purpose beyond operating and improving the platform mechanics that deliver the Service.
5.2 Audit and Compliance Logs.
upcell retains transaction and enrichment logs associated with Client’s account for the duration of the subscription and for thirty (30) days following termination, solely to support Client’s compliance and audit needs through the platform’s compliance dashboard and to facilitate dispute resolution.
5.3 Third-Party API Credentials.
Where Client connects third-party enrichment provider API credentials to the Service, Client represents and warrants that (a) it has the legal right to use such credentials, (b) its use complies with that provider’s terms of service and Applicable Data Protection Laws, and (c) the data provided by the chosen enrichment provider was lawfully collected. Each third-party enrichment provider is solely responsible for its own data collection and compliance practices.
5.4 Processor Relationship.
To the extent upcell processes Personal Data on Client’s behalf, upcell acts as Processor and Client acts as Controller. Client is responsible for ensuring a lawful basis for any Personal Data it submits to or processes through the Service. Where a DPA is required, it governs the processor relationship and supplements this Section 5.
5.5 No Sale of Customer Personal Data.
upcell does not sell, license, or otherwise transfer Customer Personal Data to any third party for such third party’s own purposes.
5.6 Suppression.
upcell maintains a suppression file of individuals who have opted out of or requested deletion from the platform. upcell will exclude suppressed individuals from data delivered through the Service. Client is responsible for honoring data subject requests it receives directly within its own systems.
Confidentiality
6.1 Definition.
Either party (the “Disclosing Party”) may disclose non-public, proprietary, or confidential information to the other party (the “Receiving Party”) that is designated as confidential or that the Receiving Party reasonably should understand to be confidential (collectively, “Confidential Information”). Confidential Information does not include information that: (a) is or becomes publicly available through no breach of this Agreement; (b) was rightfully known to the Receiving Party prior to disclosure without restriction; (c) is rightfully received from a third party without restriction; or (d) is independently developed without use of the Disclosing Party’s Confidential Information.
6.2 Obligations.
Each party agrees to (a) hold Confidential Information in strict confidence using at least the same degree of care it uses for its own confidential information, but no less than reasonable care; (b) not disclose Confidential Information to any third party without prior written consent, except to employees, contractors, or advisors who need to know and are bound by equivalent confidentiality obligations; and (c) use Confidential Information only for the purposes of performing or receiving the Service.
6.3 Compelled Disclosure.
If required by law or court order to disclose Confidential Information, the Receiving Party will, to the extent permitted by law, provide prompt prior written notice and cooperate with the Disclosing Party’s efforts to seek appropriate relief.
6.4 Customer Personal Data.
Customer Personal Data submitted to or processed through the Service is Client’s Confidential Information. upcell’s obligations with respect to such data are governed by this Section 6 and Section 5.
6.5 Survival.
Confidentiality obligations survive termination or expiration of this Agreement for three (3) years, except with respect to trade secrets, which remain protected for as long as they constitute trade secrets under applicable law.
Security and Breach Notification
7.1 Security Measures.
upcell implements and maintains reasonable technical and organizational measures to protect Customer Personal Data and Confidential Information against unauthorized access, loss, destruction, or alteration, consistent with industry standards for a service of this nature.
7.2 Client Security Responsibilities.
Client is responsible for implementing appropriate security measures within its own systems and for the security of Customer Personal Data after delivery to Client’s CRM or other systems. Client agrees to promptly notify upcell at [email protected] if it becomes aware of any unauthorized access to or disclosure of Customer Personal Data received through the Service.
7.3 Security Incident Notification.
Where upcell has executed a DPA with Client, Security Incident notification obligations are governed by that DPA. In the absence of a DPA, upcell will notify Client without undue delay upon becoming aware of a confirmed Security Incident affecting Customer Personal Data processed on Client’s behalf, and will provide reasonable information about the incident and the steps being taken to address it.
7.4 No Guarantee.
No method of electronic transmission or storage is 100% secure. upcell’s security obligations are obligations of reasonable effort, not absolute guarantees.
Fees and Taxes
Client will pay upcell the Fees set forth in the applicable Order Form. All Fees are non-refundable except as expressly set forth in the applicable Order Form and will be paid in United States Dollars. Fees are exclusive of all Taxes. Client is responsible for all Taxes associated with this Agreement or its use of the Service, excluding taxes based on upcell’s net income.
Payment Method
Client will maintain accurate billing and contact information with upcell. Payment terms and methods are set forth in the applicable Order Form. Invoices are due within thirty (30) days of the invoice date unless otherwise specified. Client remains responsible for timely payment and will promptly update any changes to its payment information.
Late Payments
Client will pay interest on late payments at the lesser of 1.5% per month or the maximum permitted by law. Client will reimburse upcell for reasonable costs of collection, including attorneys’ fees. upcell may suspend access to the Service for non-payment after providing Client with five (5) business days’ written notice.
Term and Termination
11.1 Term.
This Agreement begins on the effective date of the applicable Order Form and continues for the Initial Term. This Agreement remains in effect for so long as any Order Form is in effect, including any renewal term.
11.2 Termination for Convenience.
Either party may terminate this Agreement upon thirty (30) days’ written notice. Termination will not affect any active Order Form, which will continue in accordance with its terms.
11.3 Termination for Cause.
Either party may terminate this Agreement immediately upon written notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days of receiving written notice identifying the breach in reasonable detail (or ten (10) days in the case of non-payment).
11.4 Effect of Termination.
Upon termination or expiration: (a) all licenses granted hereunder terminate; (b) upcell will delete or return Customer Personal Data in accordance with Section 5.2 and any applicable DPA; and (c) each party will promptly return or destroy the other party’s Confidential Information upon request, except as required to be retained by applicable law.
11.5 Suspension.
upcell reserves the right to suspend access to the Service upon reasonable written notice if upcell reasonably believes Client is in material breach of this Agreement. upcell may suspend without notice where necessary to prevent harm to the Service, other users, or third parties.Order Forms
Clients access the Service pursuant to one or more Order Forms mutually agreed between Client and upcell. Each Order Form specifies the applicable services, Fees, billing terms, and subscription period. Client may increase usage or Authorized Users during the term, subject to upcell’s approval, with applicable Fees prorated for the remainder of the term. Unless otherwise agreed in writing, reductions take effect at the next renewal term. Any changes to Fees apply upon renewal unless otherwise agreed.
Order Forms
Clients access the Service pursuant to one or more Order Forms mutually agreed between Client and upcell. Each Order Form specifies the applicable services, Fees, billing terms, and subscription period. Client may increase usage or Authorized Users during the term, subject to upcell’s approval, with applicable Fees prorated for the remainder of the term. Unless otherwise agreed in writing, reductions take effect at the next renewal term. Any changes to Fees apply upon renewal unless otherwise agreed.
Acceptable Use
13.1 Permitted Use.
The Service is designed exclusively for lawful B2B sales, marketing, and customer engagement activities. Client agrees to use the Service and upcell Information only for such purposes and in compliance with all Applicable Data Protection Laws.
13.2 Client Responsibility for Outreach.
Client is solely responsible for any communications sent using upcell Information. Client agrees to comply with all applicable laws governing electronic outreach. upcell is not responsible for Client’s communications or compliance with outreach laws.
13.3 Prohibited Conduct.
Client agrees not to use the Service or upcell Information to (a) send unsolicited communications in violation of applicable law; (b) harass, threaten, or discriminate against any individual; (c) build targeting lists based on sensitive personal characteristics such as race, religion, health status, sexual orientation, or political views; (d) engage in deceptive or fraudulent practices; or (e) violate data subject rights under Applicable Data Protection Laws.
13.4 Enforcement.
upcell reserves the right to suspend or terminate access to the Service, without liability, where upcell reasonably believes Client is using the Service in violation of this Section 13 or applicable law.Feedback
upcell may use Feedback to improve and develop the Service without restriction and without compensating Client. For the avoidance of doubt, Feedback does not include Customer Personal Data submitted to or processed through the Service, which is governed by Section 5 and the DPA.
Feedback
upcell may use Feedback to improve and develop the Service without restriction and without compensating Client. For the avoidance of doubt, Feedback does not include Customer Personal Data submitted to or processed through the Service, which is governed by Section 5 and the DPA.
Privacy Policy and Data Processing Agreement
upcell’s collection and use of Personal Data is governed by the Privacy Policy, which is incorporated into this Agreement by reference. In the event of a conflict between this Agreement and the Privacy Policy with respect to Personal Data processing, this Agreement controls.
Clients subject to the GDPR or UK GDPR who submit or process Personal Data of EEA or UK residents through the Service must execute the DPA with upcell. The DPA is incorporated into and forms part of this Agreement upon execution. Contact [email protected] to obtain the DPA.
Warranty Disclaimers
THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, UPCELL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. UPCELL DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, OR THAT ANY UPCELL INFORMATION IS ACCURATE, COMPLETE, OR CURRENT. CLIENT’S USE OF THE SERVICE IS AT ITS OWN RISK.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF BUSINESS, REVENUE, DATA, OR USE, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT FOR PAYMENT OBLIGATIONS, INDEMNIFICATION OBLIGATIONS, BREACHES OF CONFIDENTIALITY, OR VIOLATIONS OF INTELLECTUAL PROPERTY RIGHTS, EACH PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY CLIENT TO UPCELL IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Indemnity
Client will indemnify, hold harmless, and defend upcell, its licensors, providers, and agents against any Liabilities arising out of or related to (a) Client’s breach of this Agreement; (b) Client’s use of the Service in violation of applicable law; or (c) Client’s electronic communications to individuals using upcell Information, excluding Liabilities to the extent caused by upcell’s breach or violation of applicable law.
upcell will indemnify, hold harmless, and defend Client against any Liabilities to the extent caused by upcell’s infringement of any third party’s IP Claims.
An indemnifying party shall assume sole control of the defense and settlement of any claim, provided it may not settle any claim that imposes liability or obligations on the indemnified party without prior written consent, not to be unreasonably withheld. Indemnification is conditioned upon the indemnified party reasonably cooperating in the defense and providing prompt notice of any claim.
Survival of Terms
The following Sections survive termination or expiration of this Agreement: 1 (Definitions), 3 (Ownership Rights), 4.2–4.3 (Restrictions and Representations), 5 (Data Processing and Client Data), 6 (Confidentiality), 7 (Security and Breach Notification), 14 (Feedback), 16 (Warranty Disclaimers), 17 (Limitation of Liability), 18 (Indemnity), 19 (Survival), 20 (Modification), 21 (Applicable Law; Dispute Resolution), 22 (Jurisdiction), and 25 (Miscellaneous), together with any other provisions that by their nature should survive.
Modification of Service and Agreement
upcell may modify the Service from time to time. upcell may also amend this Agreement prospectively upon reasonable notice. Any such changes apply only to future Order Forms or renewal terms, unless otherwise agreed by the parties in writing.
Applicable Law; Dispute Resolution
This Agreement is governed by the laws of the State of Delaware, without regard to conflict of laws principles. Any claim arising out of or relating to this Agreement must be brought within one (1) year after it arises or within the applicable statute of limitations, whichever is shorter.
The parties will attempt to resolve disputes in good faith. If a dispute cannot be resolved informally within thirty (30) days, it will be finally resolved by binding arbitration administered by the American Arbitration Association (“AAA”) under the Federal Arbitration Act and the AAA’s applicable rules. Arbitration will be conducted in a mutually agreed location or remotely.
This arbitration requirement does not apply to IP Claims, requests for injunctive or equitable relief, or claims that may be brought in small claims court.
ARBITRATION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS ONLY. NO CLASS, MASS, REPRESENTATIVE, OR CONSOLIDATED ACTIONS ARE PERMITTED. CLIENT IS WAIVING ITS RIGHT TO A JURY TRIAL AND TO PARTICIPATE IN ANY CLASS OR REPRESENTATIVE ACTION.
Jurisdiction
With respect to IP Claims or claims for injunctive or equitable relief that are not subject to arbitration under Section 21, each party consents to non-exclusive jurisdiction and venue in any federal or state court located within the State of Delaware, U.S.A.
Equitable and Injunctive Relief
Client acknowledges that any breach of Sections 3, 4, 5, or 6 may cause irreparable harm for which monetary damages may be insufficient. Accordingly, upcell will be entitled to seek injunctive or equitable relief in addition to any other remedies available, without the requirement to post bond or prove actual damages.
Force Majeure
In no event will either party be liable for any failure or delay in performance to the extent arising from causes beyond that party’s reasonable control, including acts of God, natural disasters, pandemic, government action, or internet or telecommunications failures. The affected party will notify the other party promptly and use reasonable efforts to resume performance as soon as practicable.
Miscellaneous Provisions
No delay or failure by upcell to enforce any right constitutes a waiver of such right. Any waiver must be in writing and signed by upcell.
If any provision of this Agreement is held invalid or unenforceable, the remaining provisions remain in full force and will be interpreted to reflect the parties’ intent as closely as possible.
This Agreement constitutes the entire agreement between the parties regarding its subject matter and supersedes all prior agreements or understandings on this subject.
Electronic acceptance of this Agreement constitutes a binding agreement. Section headings are for convenience only and have no legal effect. References to “including” mean “including without limitation.” There are no third-party beneficiaries to this Agreement.
Legal notices to upcell must be sent to [email protected] or upcell, LLC, 6 Liberty Square, PMB 455, Boston, MA 02109, USA. upcell will send legal notices to Client via the email address on record or through the Service.
Assignment
upcell may assign this Agreement, in whole or in part, without restriction, including in connection with a merger, acquisition, or sale of assets. Client may not assign this Agreement without upcell’s prior written consent, except to an affiliate or in connection with a merger, acquisition, or sale of all or substantially all of its assets, upon written notice to upcell. Any assignment in violation of this Section is void. This Agreement is binding upon and inures to the benefit of the parties and their permitted successors and assigns.