Terms and conditions

SAAS & Services Agreement

This SAAS & Services Agreement is between Uncommon Purpose UP Inc. (“UP”) and the Customer referenced in the Order Form, online portal or other agreement that incorporates this Agreement.

IF CUSTOMER REGISTERS FOR A FREE TIER, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TIER. BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING THE FREE TIER, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

Together, these terms and conditions, the Privacy Policy, any terms and conditions or Statements of Work that reference them, and any attachments, addenda, and exhibits thereto are collectively the “Agreement”

The effective date of this Agreement is the earlier of: the date when Customer signs the Order Form, registers or begins to use UP SAAS Products or Professional Services, or signs this Agreement (the “Effective Date”).  

For good and valuable consideration, the Parties agree to the following:

1. Definitions

  1. “User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use SAAS Products;
  2. “Change Order” means a document describing the agreed changes to a SOW;
  3. “Content” means information obtained by UP from publicly available sources or its third-party content providers and made available to Customer through the SAAS Products;
  4. “Customer Data” means, any data sets, documents, or similar material submitted or uploaded to the SAAS Products by the Customer and (b) Customer specific output generated from the use of any SAAS Products created by Customer owned data.
  5. “Documentation” means documentation for the Professional Services or SAAS Products, as applicable
  6. “License Term” means the license period for Customer’s use of SAAS Products.
  7. Order Form” means each order form entered into by the Parties for SAAS Products.  Order Forms may be submitted and accepted electronically.
  8. “Party” or “Parties” means UP or Customer as the case may be.
  9. “Professional Services” means the services provided by UP to a Customer under a SOW.
  10. “UP IP” means any and all intellectual property provided to Customer or any User created by UP in connection with the Agreement, Order Form, SOW or Change Order.
  11. “SAAS Products” means the software provided by UP.
  12. "“Statement(s) of Work” or “SOW(s)” means any statements of work including any changes and modifications to them, that describe the Services to be provided by UP to the Customer.

2. Use

  1. SAAS Product use.  SAAS Products are: (a) purchased as subscriptions for the License Term; (b) subscriptions for SAAS Products may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases of SAAS Product subscriptions are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by UP regarding future functionality or features.
  2. Usage Limits. Services and Content are subject to specified usage limits specified. If Customer exceeds a contractual usage limit, UP may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional licenses promptly upon UP’s request, and/or pay any invoice for excess usage in accordance with Section 4 (Fees).
  3. Customer usage requirements. Customer will: (a) be responsible for Users’ compliance with this Agreement, Order Forms, SOWs, and Change Orders; (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the SAAS Products and Professional Services, and the interoperation of any non-UP application with which Customer uses SAAS Products and Professional Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of SAAS Products or Professional Services, and notify UP promptly of any such unauthorized access or use, (d) use Professional Services, SAAS Products and Content only in accordance with this Agreement, Order Forms, SOWs, and Change Orders  and applicable laws and government regulations, (e) comply with terms of service of any non-UP applications with which Customer uses SAAS Products and Professional Services; and (f) backup all Customer Data on its own systems. Any use of the SAAS Products and Professional Services in breach of the foregoing by Customer or Users that in UP’s judgment threatens the security, integrity or availability of UP’s SAAS Products, may result in UP’s immediate suspension of the SAAS Products, however UP will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
  4. Restrictions. Customer will not (a) make any SAAS Products and Professional Services available to anyone other than Customer or Users, or use any SAAS Products or Professional Services for the benefit of anyone other than Customer, unless expressly stated otherwise in an Order Form or SOW, (b) sell, resell, license, sublicense, distribute, rent or lease any SAAS Products and Professional Services, (c) use a SAAS Products and Professional Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a SAAS Products and Professional Services to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of any SAAS Products or third-party data contained therein, (f) attempt to gain unauthorized access to any SAAS Products or its related systems or networks, (g) permit direct or indirect access to or use of any SAAS Products in a way that circumvents a contractual usage limit, or use any SAAS Products to access, copy or use any of UP intellectual property except as permitted under this Agreement, or an Order Form, (h) modify, copy, or create derivative works of a SAAS Products or Professional Services or any part, feature, function or user interface thereof, (i) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a SAAS Products and Professional Services or access it to (j) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the SAAS Products, (3) copy any ideas, features, functions or graphics of the SAAS Products, or (4) determine whether the SAAS Products are within the scope of any patent, (k) upload or otherwise make available any personal data to UP.
  5. Removal of Content. If Customer receives notice, including from UP, that Content or a non-UP application may no longer be used or must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the Acceptable Use Policy, Customer will promptly do so. If Customer does not take required action, including deleting any Content Customer may have downloaded from the SAAS Products, in accordance with the above, or if in UP’s judgment continued violation is likely to reoccur, UP may disable the applicable Content, SAAS Products and/or non-UP Application. If requested by UP, Customer shall confirm deletion and discontinuance of use of such Content and/or non-UP Application in writing and UP shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if UP is required by any third-party rights holder to remove Content, or receives information that Content provided to Customer may violate applicable law or third-party rights, UP may discontinue Customer’s access to Content through the SAAS Products.
  6. non-UP products or services. UP or third parties may make available third-party products or services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any UP provider, product or service is solely between Customer and the applicable non-UP provider. UP does not warrant or support non-UP applications or other non-UP products or services. UP is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such non-UP Application or its provider.
  7. Free tier. If Customer registers for a free tier license, UP will make the applicable SAAS Product(s) available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable SAAS Product(s), or (b) the start date of any purchased SAAS Product(s) subscriptions ordered by Customer for such SAAS Product(s), or (c) termination by UP in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. ANY DATA CUSTOMER ENTERS INTO THE SAAS PRODUCT(S), AND ANY CUSTOMIZATIONS MADE TO THE SAAS PRODUCT(S) BY OR FOR CUSTOMER, DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SAAS PRODUCT(S) AS THOSE COVERED BY THE TRIAL, SUBSCRIPTION PURCHASES APPLICABLE UPGRADED SAAS PRODUCT(S), OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. CUSTOMER CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SAAS PRODUCT(S) THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL; THEREFORE, IF CUSTOMER PURCHASES A SAAS PRODUCT(S) SUBSCRIPTION THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, CUSTOMER MUST EXPORT CUSTOMER DATA BEFORE THE END OF THE TRIAL PERIOD OR CUSTOMER DATA WILL BE PERMANENTLY LOST.
  8. NOTWITHSTANDING  SECTION 7  (REPRESENTATIONS AND WARRANTIES), AND SECTION 8(A) (INDEMNIFICATION BY UP) BELOW, DURING THE FREE TRIAL THE SAAS PRODUCT(S) ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND UP SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SAAS PRODUCT(S) FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE UP’S LIABILITY WITH RESPECT TO THE SAAS PRODUCT(S) PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, UP AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SAAS PRODUCT(S) DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SAAS PRODUCT(S) DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 9 (LIMITATION OF LIABILITY) BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO UP AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SAAS PRODUCT(S) DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER. CUSTOMER SHALL REVIEW THE APPLICABLE SAAS PRODUCT(S) DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SAAS PRODUCTS BEFORE MAKING A PURCHASE.
  9. Usage Data.  UP may collect and use anonymized generic information derived from Customer use of the SAAS Products (“Non-Identifiable Aggregated Data”) for UP's reasonable business purposes, including but not limited to improving the SAAS Products. UP may (i) make Non-Identifiable Aggregated Data publicly available in compliance with applicable law, and (ii) use Non-Identifiable Aggregated Data to the extent and in the manner permitted under applicable law.
  10. Professional Services.  From time to time, Customer may request that UP provide certain Professional Services with respect to Customer’s use of the SAAS Products.  Subject to the payment of all applicable fees for such Professional Services, UP will provide Professional Services in accordance with the terms and conditions of the SOW and the parts of this Agreement that are applicable to Professional Services. Customer shall not upload or otherwise make available any personal data to UP during the provision of any Professional Services.
  11. Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records of Customer’s use during the term of this Agreement and for a period of one year after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. UP may, at its own expense, on reasonable prior notice, annually inspect and audit Customer’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid UP with respect to any amounts due and payable during the License Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 4(a). Such inspection and auditing rights will extend throughout the term of this Agreement and for a period of one year after the termination or expiration of this Agreement.
  12. Support. UP  will use commercially reasonable efforts to provide telephone, web based and/or email support to Customer during normal  business hours. within five business days.

3. Customer Responsibilities

  1. General.  Customer is solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data.  Customer shall comply with all applicable laws, rules and regulations in using the SAAS Products.

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4. Fees

  1. Unless otherwise provided in the relevant Order Form, or SOW, UP will invoice the Customer:  prior to commencing the Professional Services; or on the Effective Date for SAAS Products, and the Customer will pay the Fees in respect of such invoice within thirty days of the date of such invoice. All invoices are deemed accepted by the Customer within five Business Days after they have been delivered to the Customer. Unpaid invoices will incur interest at a rate of 1.5% per month (18% per annum equivalency), calculated monthly (or if such interest rate is not permitted by applicable law, then the maximum interest rate permitted by applicable law), until such time as they are paid in full. Customer shall be responsible for legal fees incurred by UP for the collection of any unpaid invoices.
  2. UP reserves the right to change pricing levels, discounts or fee structures at any time.
  3. Currency. Customer shall make all payments hereunder in US dollars, unless otherwise agreed to by the Parties
  4. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Other than any taxes imposed on UP’s income, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder.

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5. Confidential Information

  1. For the purposes of this Agreement, “Confidential Information” means any information that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in the course of UP providing the SAAS Products to the Customer and that a reasonable person would consider to be confidential in the circumstances. Confidential Information includes, but is not limited to, the parties’ business information, customer information, trade secrets, the terms of each SOW, and personal information of the parties’ employees, contractors and customers. Confidential Information does not include any information that is disclosed by one party to another party if that information: (i) is at the time of disclosure in the possession of the Receiving Party or any of its Affiliates and was obtained without an obligation of confidence; (ii) is independently developed by the Receiving Party or any of its Affiliates without any use of or reference to the Confidential Information; (iii) is or becomes publicly available without the Receiving Party’s breach of any obligation of confidence; (iv) is acquired by the Receiving Party from a third party who provided the information without breaching any express or implied obligations or duties to the Disclosing Party; or (v) is intentionally released for disclosure by the Disclosing Party or with the Disclosing Party’s prior written consent.
  2. Each of UP and the Customer agree with the other that it shall: (i) take all reasonable steps to maintain the confidentiality of the other party’s Confidential Information; (ii) not copy the Confidential Information except as may reasonably be required by UP in the provision of the SAAS Products or Professional Services; (iii) not use the Confidential Information for its own purposes; (iv) safeguard all documents containing Confidential Information against theft, damage or access by unauthorized persons; (v) use the same degree of care with respect to the Confidential Information as it employs with respect to its own proprietary or confidential information of like importance; and (vi) except as required by law or a valid court order, and subject to the Receiving Party informing the Disclosing Party of such legal requirement, only disclose such Confidential Information to those officers, directors, officers, employees, agents, and subcontractors (“Receiving Party’s Personnel”) who need to know in order to perform their obligations under this Agreement. The Receiving Party will ensure that the Receiving Party’s Personnel who need to know the Confidential Information agree to maintain the confidentiality of such Confidential Information on terms no less stringent than the terms of these herein confidentiality provisions.
  3. Upon termination of the SAAS Products, each party will, without undue delay, upon written request from the other party, return to the other party or destroy all Confidential Information of the other party in its possession or control. Notwithstanding anything contained herein to the contrary, Receiving Party shall not be obligated to destroy Confidential Information to the extent otherwise required by law, regulation, legal, regulatory or judicial process, rule or practice governing professionals or any internal compliance policy or procedure relating to the safeguarding or backup storage of data

6. Intellectual Property

  1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, UP, its Affiliates, its licensors and Content providers reserve all of their right, title and interest in and to the SAAS Products, Professional Services, and Content, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. All UP IP shall be deemed to be Confidential Information of UP.
  2. Access to and Use of Content. Customer has the right to access and use applicable Content, subject to the terms of applicable Order Forms, this Agreement and the Documentation.
  3. License by Customer to UP. Customer grants UP, its affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any non-UP Applications and program code created by or for Customer using a SAAS Product or Professional Services for use by Customer with the SAAS Products, and Customer Data, each as appropriate for UP to provide and ensure proper operation of the SAAS Products, associated systems, and Professional Services in accordance with this Agreement. If Customer chooses to use a non-UP application with a SAAS Product, Customer grants UP permission to allow the non-UP application and its provider to access Customer Data and information about Customer’s usage of the non-UP application as appropriate for the interoperation of that non-UP application with the SAAS Product. Subject to the limited licenses granted herein, UP acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, non-UP application or such program code.
  4. License by Customer to Use Feedback. Customer grants to UP and its affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and make and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of UP’s or its affiliates’ SAAS Products and Professional Services.

7. Representations and Warranties

  1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
  2. Customer hereby represents and warrants that: (i) it is duly registered and validly exists under the laws of the jurisdiction in which it is registered; (ii) it has the legal right, authority and full power to enter into the Agreement and to perform its obligations under the Agreement; (iii) it owns all rights, title, and interest in and to, and sole and exclusive ownership of the documentation and any material claimed by it to be its Intellectual Property which do not and will not infringe any third party’s Intellectual Property Rights, and (iv) it will comply with all laws, regulations and ordinances applicable to its performance under the Agreement; (iv) any information, content, data provided to UP will not contain abusive language, any viruses, spyware, “Trojan horses,” or other “malware” or  harmful code; (v) all communications shall use professional  language; and (vi) Customer shall never use language that attempts to or does in fact damage, defame, disparage or otherwise  attack other UP.
  3. UP’s core business is implementing and customizing third party cloud software (including Salesforce’s software), developed by third parties (“Third Party Developers”).  The Customer acknowledges and agrees that UP is not such Third Party Developers and is not an Affiliate of such Third Party Developers and that UP makes no representations or warranties regarding Third Party Developers or their software, to anyone, express, implied or statutory (including warranties of design, operation, or fitness for any use or purpose).  No representation or warranty by such Third Party Developers is binding on UP nor shall breach of such warranty relieve the Customer of its obligations to UP.  Third Party Developers may require the Customer to enter into license agreements or pay license fees for the use of their software which, unless expressly set out herein or in a SOW, are not included in the Fees.  There may be circumstances whereby Third Party Developers make changes to the software upon which the Services are based (“Third Party Software Changes”).  Except as expressly set out in a SOW, UP will not be responsible for any fixes, patches, or replacement code that may be required as a result of such Third Party Software Changes.
  4. Disclaimer.  THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

8. Mutual Indemnification

  1. Indemnification by UP. UP will defend Customer against any loss, made or brought against Customer directly resulting from a third party alleging that any Customer purchased SAAS Product subscriptions or UP intellectual property contained in the Professional Services infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by UP in writing of, a Claim Against Customer, provided Customer (a) promptly gives UP written notice of the Claim Against Customer, (b) gives UP sole control of the defense and settlement of the Claim Against Customer (except that UP may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives UP all reasonable assistance, at UP’s expense. If UP receives information about an infringement or misappropriation claim related to a SAAS Products or UP intellectual property contained in the Professional Services, UP may in its discretion and at no cost to Customer (i) modify the SAAS Products or UP intellectual property contained in the Professional Services so that they are no longer claimed to infringe or misappropriate, without breaching UP’s warranties under “UP Warranties” above, (ii) obtain a license for Customer’s continued use of that intellectual property in accordance with this Agreement, or (iii) terminate Customer’s access to the portion of that SAAS Products or Professional Services upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions, or portion of the Professional Services, as applicable. The above defense and indemnification obligations do not apply if (I) the allegation does not state with specificity that the SAAS Products or UP intellectual property contained in the Professional Services are the basis of the Claim Against Customer; (II) a Claim Against Customer arises from the use or combination of the SAAS Products or UP intellectual property contained in the Professional Services  or any part thereof with software, hardware, data, or processes not provided by UP, if the SAAS Products or UP intellectual property contained in the Professional Services or use thereof would not infringe without such combination; (III) a Claim Against Customer arises from SAAS Products or UP intellectual property under an Order Form or SOW for which there is no charge; or (IV) a Claim against Customer arises from third-party, a non-UP application or Customer’s breach of this Agreement, the Documentation or applicable Order Forms.
  2. Indemnification by Customer. Customer will defend UP and its affiliates against any claim, demand, suit or proceeding made or brought against UP by a third party (a) alleging that the combination of a non-UP application or configuration provided by Customer and used with the SAAS Products or contained in the Professional Services, infringes or misappropriates such third party’s intellectual property rights, or (b) arising from (i) Customer’s use of the SAAS Products or contained in the Professional Services in an unlawful manner or in violation of the Agreement, SOW or Order Form, (ii) any Customer Data or Customer’s use of Customer Data with the SAAS Products or contained in the Professional Services or (iii) a non-UP Application provided by Customer (each a “Claim Against UP”), and will indemnify UP from any damages, attorney fees and costs finally awarded against UP as a result of, or for any amounts paid by UP under a settlement approved by Customer in writing of, a Claim Against UP, provided UP (A) promptly gives Customer written notice of the Claim Against UP, (B) gives Customer sole control of the defense and settlement of the Claim Against UP (except that Customer may not settle any Claim Against UP unless it unconditionally releases UP of all liability), and (C) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against UP arises from UP’s breach of this Agreement, the Documentation or applicable Order Forms.
  3. Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.

9. Limitations of Liability

  1. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS OR GOODWILL, WORK STOPPAGE, LOSS OF INFORMATION OR DATA, OR LOSS OF REVENUE OR PROFIT, RESULTING FROM THE PROVISION OF OR RELIANCE UPON THE SERVICES, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, REGARDLESS OF THE LEGAL THEORY ASSERTED, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE.  
  2. SUBJECT TO APPLICABLE LAW, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, UP’S AGGREGATE AND TOTAL LIABILITY UNDER THIS AGREEMENT FOR ANY AND ALL CLAIMS ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED:  (A) FOR PROFESSIONAL SERVICES, THE  AMOUNTS PAID OR DUE BY THE CUSTOMER TO UP FOR THE SOW THAT GAVE RISE TO THE CLAIM;  (B) FOR SAAS PRODUCTS, THE AMOUNTS PAID DURING THE LICENSE TERM FOR SAAS PRODUCTS. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT, WARRANTY, TORT, OR OTHERWISE AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER SECTION 4(FEES) EXCEPT AS SET FORTH UNDER APPLICABLE LAW, DAMAGES SET FORTH IN THIS SECTION 9(b) ARE THE PARTIES’ SOLE EXCLUSIVE MONETARY REMEDY AND THE SOLE AND EXCLUSIVE ALTERNATIVE REMEDY IN THE EVENT ANY OTHER REMEDY FAILS OF ITS ESSENTIAL PURPOSE. FOR THE AVOIDANCE OF DOUBT, THE PARTIES MAY NOT LIMIT THEIR LIABILITY WHERE PREVENTED FROM DOING SO BY APPLICABLE LAW.  

10. Term

  1. Term.  The term of this Agreement begins on the Effective Date and continues until all subscriptions and SOWs hereunder have expired or have been terminated.    
  2. Term of Purchased Subscriptions. The term of each subscription for SAAS Products shall be as specified in the applicable Order Form or in the online portal. Except as otherwise specified in an Order Form or in the online portal, subscriptions will automatically renew for additional one-year terms, unless either party gives the other written notice (email acceptable) at least 60 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form or in the online portal, renewal of promotional or one-time priced subscriptions will be at UP’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any SAAS Products has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
  3. Termination. UP may terminate this Agreement, SAAS Product subscription and/or any SOW or change Order for cause: (i) upon written notice to the other party of a material breach if such breach remains uncured at the expiration of the notice period. Either party may terminate this Agreement, a SAAS Product subscription or SOW if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
  4. Termination Refund or Payment. If this Agreement is terminated by Customer in accordance with Section 10(c), UP will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by UP in accordance with Section 10(c), Customer will pay any unpaid fees covering the remainder of the term of all SAAS Product subscriptions, and all remaining SOWs to the extent permitted by applicable law. In no event will termination relieve the Customer of its obligation to pay any fees payable to UP for the period prior to the effective date of termination.
  5. Suspension of SAAS Product, Professional Services and Acceleration. If any charge owing by Customer under this or any other agreement for Professional Services or SAAS Products is 30 days past due, UP may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Professional Services or SAAS Products until such amounts are paid in full, provided that, UP will give Customer at least 5 days’ prior notice that its account is overdue, in accordance with Section 11(b) (Notice) for billing notices, before suspending services to Customer.
  6. Survival. This Section 10(f) and Sections 1(Definitions), 2(h)(Free trial)  4(Fees), 5 (Confidential Information), 6(Intellectual Property), 7(d)(warranty disclaimer) 8(Indemnity), 9(limitation of liability), 10(d)(Termination Refund or Payment )and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

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11. Miscellaneous

  1. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.  If there is a conflict between the terms of a SOW, or Order Form and this Agreement, this Agreement shall prevail unless explicitly overridden with a cross-reference to this provision. For conflicts related to indemnification, Intellectual Property, limitations of liability, confidentiality, the terms of this Agreement will always prevail for the purpose of that conflict.
  2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered to UP by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid), and UP may send Notices to the Customer by email.  Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
  3. Terms. The parties have entered into this  Agreement relying on the limitations of liability, disclaimers of warranty and other provisions  relating to allocation of risk stated in this Agreement and agree that such provisions are an  essential basis of the bargain between the parties. The parties further agree that all such  limitations, disclaimer and other provisions will survive and apply even if any limited remedy is  found to have failed of its essential purpose.
  4. Agreement Changes. we may need to update this Agreement. Therefore,  UP reserves the right to change this Agreement at any time in its sole discretion with the  changes to the Agreement becoming effective thirty (30) days after notice to you (unless UP)  specifies a shorter notice period). UP will give you notice of the changes by posting an updated  version of this Agreement on its website, or by emailing you at an email address you have  provided. If you do not agree to any of the changes, your sole remedy is to terminate this  Agreement prior to the date on which the changes are to take effect by (i) providing written  notice to UP. If you  terminate this Agreement according to the preceding sentence, the changes will not apply to you.  Otherwise, your continued participation in the Services after the changes take effect  will constitute your acceptance of the changes. In addition, you may be required to click to agree  to the modified Agreement to continue participating in the Marketplace.
  5. Force Majeure. In no event shall UP be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond UP’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, epidemic or pandemic, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo. UP shall notify Customer of such force majeure within ten (10) days after such occurrence by giving written notice to Customer stating the nature of the event, its anticipated duration, and any action being taken to avoid or minimize its effect. The suspension of performance shall be of no greater scope and no longer duration than is necessary and UP shall use commercially reasonable efforts to remedy its inability to perform.
  6. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
  7. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
  8. Disputes; Mediation; Binding Arbitration; Governing Law; Emergency Relief.  
  1. Negotiation. If there is a dispute or difference (“Dispute”) between the parties arising out of or in connection with this Agreement, then within five (5) business days of a party notifying the other party in writing of the Dispute, a senior representative from each party shall meet and, acting in good faith, try to resolve the Dispute by joint discussions.
  2. Court proceedings and other relief. A party may not start court proceedings in relation to a Dispute until it has exhausted the procedures in Section 11(f)(i), unless the party seeks injunctive or other interlocutory relief.
  3. Continued Performance. Both parties must continue performing their respective obligations and responsibilities under this Agreement while any Dispute is being resolved in accordance with this Section 11(f), unless and until such obligations are terminated or expire in accordance with the provisions of this Agreement.
  4. Arbitration. In the event that negotiation does not resolve the dispute within forty-five (45) days of said notice, all claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration under British Columbia Law in the City of Vancouver, B.C.  The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the Canadian Arbitration Association (CAA).  Any such arbitration shall be conducted by an arbitrator experienced in software and cloud-based web services.  The Parties reserve the right to, acting reasonably, object to any individual who shall be employed by or affiliated with a competing organization or entity.  Judgment upon the award of arbitration may be entered in any court of competent jurisdiction. The arbitrator shall not have any authority to award non-compensatory, punitive or exemplary damages.  For emergency or interim relief, the parties also agree that the CAA Optional Rules for Emergency Measures of Protection shall apply to the proceedings.
  5. This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein, without regard to conflict of law principles, and the parties agree to attorn to the exclusive jurisdiction of Vancouver, B.C..

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  1. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, UP will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and enure to the benefit of the parties, their respective successors and permitted assigns.
  2. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
  3. Publicity. Customer will display the UP logo on its instant of the SAAS Product. UP may publicly disclose the relationship with Customer and use Customer’s logo in UP’s advertising.
  4. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7(Confidentiality)  or, in the case of Customer, Section 2(d), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
  5. Expenses. All costs and expenses incurred in connection with this Agreement and each other agreement, document and instrument contemplated by this Agreement and the transactions contemplated hereby and thereby shall be paid by the Party incurring such costs and expenses.
  6. Legal Fees and Costs. In the event of a dispute arising under this Agreement, whether or not a lawsuit or other proceeding is filed, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, including attorneys’ fees and costs incurred in litigating entitlement to attorneys’ fees and costs, as well as in determining or quantifying the amount of recoverable attorneys’ fees and costs. The reasonable costs to which the prevailing party is entitled shall include costs that are taxable under any applicable statute, rule, or guideline, as well as non-taxable costs, including, but not limited to, costs of investigation, copying costs, electronic discovery costs, telephone charges, mailing and delivery charges, information technology support charges, consultant and expert witness fees, travel expenses, court reporter fees, and mediator fees, regardless of whether such costs are otherwise taxable.
  7. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

Last updated Feb 14th 2024

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