Terms of Service

These Terms of Service (the "Terms") govern access to and use of the upstreem platform and related services (the "Service").

The Service is operated by upstreem, Langenbergerstr. 3, 45525 Hattingen, Germany ("upstreem", "Provider", "we", "us").

By accessing or using the Service, creating an account, starting a trial, or entering into a paid subscription, the customer identified in the applicable account, order, or subscription (the "Customer", "you") agrees to these Terms.

1. Scope; Business Customers Only

1.1 upstreem is offered exclusively to entrepreneurs, businesses, agencies, and other professional users acting in the course of their commercial or independent professional activity, within the meaning of Section 14 of the German Civil Code (BGB) (a "Business Customer"). Use by consumers within the meaning of Section 13 BGB is excluded.

1.2 These Terms apply exclusively. Any conflicting or additional terms of the Customer shall not apply unless upstreem expressly agrees to them in text form.

1.3 These Terms should be read together with upstreem's Privacy Policy, which governs how upstreem processes personal data in its own capacity as controller, including for account management, security, support, billing, and product operations.

2. The Service

2.1 upstreem is a software-as-a-service platform for AI visibility tracking, prompt analytics, citation analysis, and related workflow and reporting functionality.

2.2 Depending on the subscribed plan and enabled features, upstreem may allow Customers to create and manage teams, workspaces, brands, competitors, prompts, and filters; run recurring or event-based prompt checks across supported AI systems or data sources; collect and store responses and metadata; detect and analyze mentions, citations, domains, URLs, sentiment, rankings, and related signals; generate suggestions for prompts, competitors, or related workflow items; and visualize, export, and review results in dashboards, tables, and reports.

2.3 upstreem is an analytics and workflow platform. Unless expressly agreed otherwise in writing, upstreem does not guarantee any specific business outcome, ranking, visibility level, sentiment outcome, growth outcome, or strategic result. upstreem also does not guarantee that any suggestion, prompt recommendation, citation, source, categorization, or analytics output will be complete, accurate, or fit for a particular purpose. In particular, upstreem does not promote or influence the visibility of the Customer's brand in AI systems, and does not provide strategic advice or adaptations to the Customer's business model.

2.4 upstreem may improve, modify, replace, or discontinue features from time to time. upstreem will not, however, materially reduce the core functionality of the Service — meaning the ability to track AI visibility, run prompt checks, and generate analytics reports — for active paid subscriptions without providing at least sixty (60) days' prior written notice. If such a material reduction occurs and is not reversed within the notice period, the Customer may terminate the affected subscription with a prorated refund of prepaid fees for the unused portion of the subscription term.

2.5 upstreem may rely on third-party providers, including AI model providers, infrastructure providers, and external data sources. The availability, latency, continuity, format, and output quality of such third-party services are outside upstreem's reasonable control. upstreem expressly reserves the right, at its reasonable discretion, to modify or replace the list of AI systems and data sources used in connection with the Service.

2.6 The Customer may provide input to the Service (such as prompts, keywords, URLs, competitor names, and filters) ("Input") and receive output based on that Input ("Output"). Input and Output are collectively referred to as "Content". The quality and accuracy of Output depends substantially on the quality and completeness of the Input. upstreem does not warrant that Output will meet the Customer's expectations or serve any particular purpose.

3. Access, Accounts, and Authorized Use

3.1 Subject to these Terms and payment of applicable fees, upstreem grants the Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Service during the subscription term for its internal business purposes.

3.2 If the Customer is an agency, consultancy, reseller, or service provider, the Customer may use upstreem in connection with brands, workspaces, or projects of its clients to the extent permitted under the applicable subscription plan and provided the Customer has all required rights and authorizations.

3.3 The Customer is responsible for all users it authorizes to access the Service ("Authorized Users"), for safeguarding credentials and access methods, and for all activity occurring under its accounts and workspaces.

3.4 The Customer must promptly notify upstreem of any suspected unauthorized access or security incident affecting the Service or its account.

4. Customer Data and Customer Responsibility

4.1 The Customer is solely responsible for all content, data, prompts, URLs, domain information, company names, competitor lists, uploads, notes, and other materials submitted to or processed through the Service ("Customer Data").

4.2 The Customer represents and warrants that it has all rights, permissions, and legal bases required to use Customer Data with the Service.

4.3 The Customer shall not submit or process through upstreem any unlawful content, content infringing third-party rights, malicious code, or personal data in violation of applicable law.

4.4 The Customer remains solely responsible for business, legal, or commercial decisions based on analytics, outputs, suggestions, or interpretations generated by the Service.

5. Prohibited Use

The Customer shall not, and shall not permit others to:

5.1 reverse engineer, decompile, disassemble, copy, or create derivative works of the Service, except to the extent such restriction is prohibited by mandatory law;

5.2 use the Service to build or operate a competing product through misuse of upstreem's proprietary analytics logic, scoring methodologies, or technical implementations;

5.3 interfere with or disrupt the integrity, security, or performance of the Service;

5.4 access the Service through unauthorized automated means, except through officially supported APIs, integrations, or with upstreem's written approval;

5.5 bypass plan limits, quotas, permissions, or usage restrictions; or

5.6 use the Service for spam, abusive scraping, unlawful surveillance, or any unlawful or deceptive activity.

upstreem may suspend or restrict access if it reasonably believes that the Customer is violating these Terms or creating material risk for the Service, other customers, or third parties.

6. Subscription Plans, Fees, Renewal, and Price Changes

6.1 Access to upstreem may be offered under free trial, monthly, annual, usage-based, enterprise, or other subscription plans.

6.2 Features, quotas, and entitlements depend on the subscribed plan and may include limits on teams, users, prompts, tracked brands, tracked competitors, exports, models, integrations, and historical retention.

6.3 Fees, billing intervals, renewal terms, and payment methods are defined in the applicable order form, checkout flow, pricing page, invoice, or subscription settings. Unless otherwise stated, fees are exclusive of applicable taxes.

6.4 upstreem may use third-party payment processors. The Customer authorizes upstreem and its payment providers to charge the selected payment method for all due fees.

6.5 If payment is overdue, upstreem may, after reasonable notice where feasible, charge statutory default interest where applicable, suspend access, reject renewals or upgrades, or terminate for cause in the event of continued non-payment.

6.6 Monthly subscriptions renew automatically for successive monthly periods unless cancelled before the next billing date. No notice period applies to monthly cancellations.

6.7 Annual subscriptions renew automatically for successive annual periods unless the Customer gives written notice of cancellation at least thirty (30) days before the end of the then-current annual term.

6.8 upstreem will provide at least thirty (30) days' prior written notice of any fee increase affecting an existing paid subscription before such increase takes effect on renewal. If the Customer objects to the fee increase within thirty (30) days after receipt of upstreem's notice, the Customer may terminate the affected subscription with effect from the end of the then-current subscription term.

6.9 Unless expressly stated otherwise, fees are non-refundable except where required by law or expressly provided in these Terms.

6.10 The Customer may only set off counterclaims against upstreem's payment obligations if such counterclaims are undisputed by upstreem or have been finally and non-appealably adjudicated by a competent court. The Customer's right to bring separate claims for damages or other remedies remains unaffected; only set-off and withholding of payments are restricted as set out in this clause.

7. Free Trial

7.1 upstreem may offer free trials or pilot access from time to time.

7.2 Trial access may be limited in features, quotas, data retention, support, and availability.

7.3 upstreem may end or modify a free trial at any time.

7.4 If the Customer converts to a paid subscription, the paid subscription terms will apply from the first paid day onward.

7.5 Customer Data submitted during a free trial is subject to the same data protection and confidentiality principles set out in these Terms and, where applicable, in the DPA.

8. Availability, Maintenance, and Service Levels

8.1 upstreem will use commercially reasonable efforts to make the Service available and operational.

8.2 upstreem may perform maintenance, updates, migrations, security changes, or emergency interventions that may temporarily affect availability. upstreem will inform the Customer in due time of any planned maintenance associated with usage restrictions.

8.3 For paid subscriptions, upstreem targets a monthly service availability of 99.0% at the delivery point, excluding scheduled maintenance, force majeure events under clause 13, and downtime caused by the Customer, its systems, or public internet failures outside upstreem's reasonable control.

8.4 If upstreem fails to meet the availability target in clause 8.3 in a given calendar month, the Customer may request a service credit calculated as follows, applied against the next invoice:

(a) Availability between 98.0% and 99.0%: credit equal to 10% of the monthly fee for the affected month;

(b) Availability below 98.0%: credit equal to 25% of the monthly fee for the affected month.

Service credits are the Customer's sole and exclusive remedy for availability failures, subject to clause 14. Credits must be requested in writing within thirty (30) days after the end of the affected month. A separate SLA agreed in writing, if any, shall prevail over this clause.

8.5 Support channels, scope, and response times depend on the applicable plan or separate agreement.

9. Data Protection, Security, and Confidentiality

9.1 Each party shall comply with applicable data protection laws with respect to its own processing activities.

9.2 To the extent upstreem processes personal data on behalf of the Customer as a processor, the parties shall enter into upstreem's Data Processing Agreement ("DPA"), which shall be attached as Exhibit A or otherwise separately executed and incorporated by reference.

9.3 upstreem will treat Customer Data as confidential and will use it only as necessary to provide, secure, maintain, support, administer, and improve the Service, to comply with legal obligations, or as otherwise permitted under these Terms or the DPA. upstreem will not use Customer Data for any other purposes without the Customer's consent.

9.4 Each party shall protect the other party's confidential information using reasonable care and shall not disclose it to third parties except to employees, contractors, or advisors who have a need to know and are bound by confidentiality obligations, where disclosure is required by law, or as otherwise permitted under these Terms.

9.5 In the event of a confirmed personal data breach affecting Customer Data processed by upstreem on behalf of the Customer, upstreem will notify the Customer without undue delay after becoming aware of the breach and, where feasible, provide an initial notice within seventy-two (72) hours.

9.6 Confidentiality obligations under this clause survive termination or expiration of the agreement for five (5) years, and indefinitely with respect to information that constitutes a trade secret under applicable law.

9.7 upstreem implements and maintains appropriate technical and organizational measures to protect Customer Data against unauthorized access, loss, destruction, or alteration, having regard to the nature of the data processed and the risks involved. A description of upstreem's current technical and organizational measures is set out in the DPA. upstreem will not materially reduce the overall level of security applicable to Customer Data during any active subscription term.

9.8 upstreem shall, upon the Customer's reasonable written request with at least thirty (30) days' notice, provide documentation and information reasonably necessary to demonstrate compliance with upstreem's obligations as a processor under applicable data protection law. upstreem shall allow for audits or inspections conducted by the Customer or a mutually agreed third-party auditor, subject to:

(a) reasonable advance notice;

(b) execution of an appropriate confidentiality agreement;

(c) audits being conducted during normal business hours without material disruption to upstreem's operations; and

(d) the Customer bearing the costs of such audits unless the audit reveals a material non-compliance by upstreem.

upstreem may provide a current third-party security audit report, certification, or comparable independent assurance report in lieu of an on-site audit, which the Customer may accept at its discretion.

9.9 upstreem maintains a current list of subprocessors and will make that list available to the Customer upon request or through the mechanism described in the DPA. upstreem will provide reasonable prior notice of material changes to subprocessors in accordance with the DPA.

10. Customer Data Rights, Feedback, and Product Improvement

10.1 As between the parties, the Customer retains all rights in and to Customer Data.

10.2 The Customer grants upstreem a non-exclusive, worldwide, limited license to host, copy, process, transmit, display, analyze, and otherwise use Customer Data solely as necessary to provide, secure, maintain, support, and improve the Service, to comply with legal obligations, and to fulfill upstreem's obligations under these Terms. upstreem shall not use Customer Data to train general-purpose AI models unless the parties separately agree to such use in writing.

10.3 upstreem may generate aggregated, anonymized, or otherwise non-personally identifiable usage statistics, performance metrics, and product analytics derived from operation of the Service, provided such information does not identify the Customer or reveal confidential Customer Data.

10.4 If the Customer provides upstreem with comments, suggestions, or enhancement requests relating to the Service ("Feedback"), the Customer grants upstreem a perpetual, irrevocable, worldwide, royalty-free license to use and incorporate such Feedback into upstreem's products and services. upstreem shall not be required to implement any Feedback. upstreem shall not use Feedback in a manner that discloses the Customer's confidential information. This clause does not limit the Customer's ownership of its confidential information or Customer Data.

11. upstreem Intellectual Property

11.1 upstreem and its licensors retain all right, title, and interest in and to upstreem's proprietary elements of the Service, including its source code, software, documentation, trademarks, and trade secrets.

11.2 No rights are granted to the Customer except those expressly set out in these Terms.

11.3 The Service may incorporate third-party software, open-source components, industry-standard frameworks, and commonly available templates or interface patterns. Such elements remain subject to their own respective licenses and are not claimed as proprietary by upstreem under these Terms.

12. Warranties

12.1 To the extent the Service consists of the ongoing provision of software access, the warranty provisions of Sections 535 et seq. of the German Civil Code (BGB) shall apply as modified by these Terms.

12.2 upstreem warrants that it will provide the Service with reasonable skill and care consistent with a SaaS analytics platform of its type.

12.3 upstreem will use commercially reasonable measures to maintain the accuracy and integrity of the Service and to correct or work around material known defects within a commercially reasonable time after becoming aware of them. The Customer shall notify upstreem without undue delay of any reproducible defects or material service issues, describing them in sufficient detail. If the Customer fails to provide timely notification, the statutory duties to cooperate shall apply.

12.4 Except as expressly stated in these Terms, the Service is provided "as is" and "as available."

12.5 upstreem does not warrant that the Service will always be uninterrupted or error-free, or that third-party AI systems or data sources will remain unchanged, stable, or continuously available. Warranty claims for only insignificant impairments of the suitability of the Service shall be excluded.

12.6 The strict liability of the Provider pursuant to Section 536a (1) of the German Civil Code (BGB) for defects already existing at the time of conclusion of the contract is hereby excluded.

13. Force Majeure

13.1 Neither party shall be liable for any delay or failure to perform its obligations under these Terms to the extent such delay or failure results from causes beyond its reasonable control, including acts of God, government action, war, civil unrest, natural disasters, epidemics, power failures, broad telecommunications outages, or general internet failures outside the affected party's reasonable control (each a "Force Majeure Event").

13.2 For clarity, the ordinary unavailability or non-performance of upstreem's chosen third-party AI model providers, APIs, or data vendors shall not by itself constitute a Force Majeure Event.

13.3 upstreem will maintain commercially reasonable redundancy and failover measures for material third-party infrastructure and AI dependencies where technically and commercially feasible.

13.4 The affected party shall promptly notify the other party of the Force Majeure Event and use commercially reasonable efforts to mitigate its effects.

13.5 If a Force Majeure Event continues for more than seven (7) consecutive days, the Customer may terminate the affected paid subscription by written notice and upstreem will refund any prepaid fees allocable to the unused portion of the terminated paid subscription term.

14. Limitation of Liability

14.1 upstreem shall have unlimited liability for intent and gross negligence, injury to life, body, or health, fraud, liability under mandatory product liability law (Produkthaftungsgesetz), and any other liability that cannot be limited under mandatory law.

14.2 In cases of slight negligence, upstreem shall only be liable for breach of essential contractual obligations (Kardinalpflichten), meaning those obligations that are fundamental to the contract and on whose fulfillment the Customer can reasonably rely. Such liability shall be limited to the foreseeable damage typical for this type of agreement at the time of contract conclusion.

14.3 To the maximum extent permitted by law, upstreem shall not be liable for indirect or consequential damages, loss of profit, loss of revenue, loss of goodwill, or loss of business opportunity. upstreem shall not be liable for loss or corruption of Customer Data to the extent such loss or corruption is directly attributable to the Customer's failure to use export functionality that was actually available and operational under the Customer's subscription plan at the time of the loss. This carve-out does not apply where export functionality was unavailable, materially restricted, or not reasonably usable.

14.4 Except for cases of unlimited liability under clause 14.1, upstreem's aggregate liability arising out of or in connection with the Service shall not exceed the fees paid or payable by the Customer for the Service during the twelve (12) months preceding the event giving rise to the claim. For the avoidance of doubt, the aggregate cap in this clause 14.4 does not apply to upstreem's intellectual-property indemnification obligations under clause 15.2, which are subject to the separate cap in clause 15.4.

14.5 The above limitations also apply in favor of upstreem's legal representatives, employees, contractors, and agents.

15. Indemnification

15.1 The Customer shall indemnify and hold upstreem harmless from third-party claims, damages, costs, and expenses arising out of or relating to the Customer's unlawful or unauthorized use of the Service, Customer Data provided by or on behalf of the Customer, or breach of these Terms by the Customer or its Authorized Users, to the extent the Customer is responsible.

15.2 upstreem shall defend the Customer against any third-party claim alleging that the Service, as provided by upstreem and used in accordance with these Terms, directly infringes (a) copyright in upstreem's Service software, (b) upstreem's trademarks, or (c) trade secrets, in each case in the European Union, European Economic Area, United Kingdom, Switzerland, or United States (the "Covered Territories"), and upstreem shall pay damages finally awarded by a court of competent jurisdiction or agreed in settlement, provided that the Customer:

(a) promptly notifies upstreem in writing of the claim;

(b) grants upstreem sole control of the defense and settlement; and

(c) provides reasonable assistance.

The parties may agree in an order form to extend the Covered Territories or the categories of intellectual-property rights covered.

15.3 upstreem's indemnity obligation under clause 15.2 shall not apply to claims arising from:

(a) Customer Data;

(b) modifications to the Service not made by upstreem;

(c) use of the Service in combination with products, services, or materials not supplied by upstreem, if the alleged infringement would not have arisen without such combination; or

(d) use of the Service in violation of these Terms.

15.4 upstreem's total liability under clause 15.2 shall be subject to a separate aggregate cap equal to the greater of:

(a) the fees paid or payable by the Customer for the Service during the twenty-four (24) months preceding the event giving rise to the claim; or

(b) EUR 50,000.

16. Assignment and Change of Control

16.1 Neither party may assign or transfer these Terms or any rights or obligations under them without the other party's prior written consent, which shall not be unreasonably withheld.

16.2 Notwithstanding clause 16.1, upstreem may assign or transfer these Terms in connection with a merger, acquisition, corporate restructuring, sale of substantially all assets, or transfer to an affiliate, provided that:

(a) the assignee assumes upstreem's obligations under these Terms;

(b) upstreem gives the Customer at least thirty (30) days' prior written notice; and

(c) if the assignee is a direct competitor of the Customer, or if the transaction would objectively cause a material adverse change in the confidentiality protections, security posture, or service quality available to the Customer, the Customer may terminate the affected subscription without penalty within thirty (30) days after receipt of upstreem's notice, with a prorated refund of any prepaid fees for the unused subscription term.

16.3 Any purported assignment in violation of this clause is void.

17. Termination

17.1 The agreement begins when the Customer first accepts these Terms, starts a paid subscription, begins a trial, or otherwise uses the Service.

17.2 Either party may terminate the agreement for cause (aus wichtigem Grund) if the other party materially breaches these Terms and fails to cure that breach within thirty (30) days after written notice specifying the breach in reasonable detail, where cure is possible. Cause for upstreem includes, without limitation, serious or persistent breach of these Terms, persistent non-payment after notice, or insolvency of the Customer.

17.3 Monthly subscriptions may be terminated by the Customer for convenience as set out in clause 6.6 (no notice period). Annual subscriptions are not terminable for convenience inside the term; the Customer may exit at the next renewal date by giving the notice set out in clause 6.7. This clause does not limit either party's statutory or contractual termination rights for cause, force majeure (clause 13.5), service reduction (clause 2.4), price increases (clause 6.8), assignment (clause 16.2), or material change of these Terms (clause 21.4).

17.4 upstreem may suspend or terminate access immediately where reasonably necessary to prevent security harm, abuse, unlawful conduct, or material non-payment.

18. Effects of Termination; Export and Deletion

18.1 Upon termination or expiration, the Customer's right to access and use the Service ends, except as provided in clause 18.3.

18.2 upstreem may deactivate the account and associated workspaces upon termination or expiration, subject to clause 18.3.

18.3 For a period of up to ninety (90) days after the effective date of termination or expiration, upstreem will make available read-only / export-only access reasonably necessary for the Customer to retrieve Customer Data. During this period the Customer shall be able to retrieve Customer Data without plan-based export restrictions that would materially prevent a complete export. Customer Data will be made available for export in at least one standard machine-readable format (CSV, JSON, or XLSX) sufficient for the Customer to obtain a materially complete copy of its stored data.

18.4 upstreem may delete Customer Data no earlier than ninety (90) days after the effective date of termination or expiration, except where longer retention is required by law, the parties agree otherwise in writing, or the Customer requests earlier deletion.

19. Data Migration and Switching (EU Data Act)

19.1 In accordance with Regulation (EU) 2023/2854 (the "Data Act"), the Customer may switch to another data processing service or to an on-premise solution by giving no more than two (2) months' prior written notice to upstreem.

19.2 Upon such notice, upstreem shall provide the Customer, without undue delay and in a commonly used, machine-readable format (such as CSV, JSON, or XLSX), with access to all exportable Customer Data (including relevant metadata) and shall provide reasonable technical assistance to enable a complete and orderly switch.

19.3 Upon successful completion of the switching process, the contract shall be deemed terminated. Any prepaid fees for the period following the termination effective date shall be refunded pro rata.

19.4 upstreem may charge reasonable, cost-based fees for switching assistance beyond standard export functionality, to the extent permitted under the Data Act. upstreem will notify the Customer of any such fees in advance.

19.5 Any contractual term inconsistent with the Customer's rights under the Data Act shall be deemed replaced by the mandatory provisions of that regulation.

20. Public Reference Use

20.1 upstreem may identify the Customer by name and logo as a customer of upstreem in customer lists, website references, presentations, and similar marketing materials, provided this is done in a factual and appropriate manner and no confidential Customer information is disclosed.

20.2 The Customer may object to such use at any time by written notice to upstreem for legitimate reasons. upstreem will cease the relevant use within fourteen (14) days after receipt of the objection.

20.3 upstreem will not disclose confidential Customer information in connection with any reference use.

21. Changes to the Terms

21.1 upstreem may update these Terms from time to time.

21.2 If a change materially affects an existing paid subscription, upstreem will provide at least six (6) weeks' prior notice in text form (e.g. by email) before the updated Terms take effect. The change notice will specifically inform the Customer that the changes will be deemed accepted if the Customer does not object in text form within the notice period, and will explain the Customer's right to terminate.

21.3 If the Customer does not object in text form within six (6) weeks of receiving the notice, the updated Terms shall be deemed accepted and shall take effect at the expiry of the notice period. The deemed-acceptance mechanism in this clause 21.3 shall not apply to changes that unilaterally and adversely shift the essential balance of the contract to the Customer's detriment without an offsetting commercial benefit; such changes require the Customer's express consent.

21.4 If the Customer objects to a material change within the notice period, the Customer may terminate the affected subscription with effect from the date the updated Terms would otherwise take effect, with a prorated refund of any prepaid fees for the unused subscription term.

22. Governing Law and Jurisdiction

22.1 These Terms are governed by the laws of the Federal Republic of Germany, excluding conflict-of-laws rules and the UN Convention on Contracts for the International Sale of Goods (CISG).

22.2 If the Customer is a merchant (Kaufmann) within the meaning of the German Commercial Code (HGB), a legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction for all disputes arising out of or in connection with these Terms shall be Hattingen, Germany, to the extent legally permissible. The parties may agree in an order form to refer disputes to binding arbitration in lieu of court proceedings, in particular for Customers domiciled outside the European Union.

23. Final Provisions

23.1 These Terms, together with any applicable order form, pricing terms, privacy policy, DPA, and any separately agreed Service Level Agreement, form the entire agreement between the parties regarding the Service. There are no side agreements or representations other than those expressly set out in these documents. In the event of conflict, the order of precedence shall be: (1) the Order Form, (2) the DPA, (3) these Terms, and (4) the Privacy Policy.

23.2 Any amendment or waiver must be made in text form unless stricter form is required by law.

23.3 If any provision of these Terms is held invalid or unenforceable, the remaining provisions remain unaffected. The invalid provision shall be replaced by a valid provision that most closely reflects the commercial intent of the original provision.

23.4 This English version of the Terms is the binding contractual version. Any translation provided is for convenience only; in the event of inconsistencies, the English text prevails.

24. Contact

upstreem

Langenbergerstr. 3

45525 Hattingen

Germany

Support: lukas@upstreem.ai