Master Subscription Agreement
This Master Subscription Agreement (the “Agreement”) sets forth the terms and conditions that govern Your access to and use of Pitchup (“Services” as defined below), and is between Uplancer Agency LLC (“We,” “Us” or “Our”), a Delaware limited liability company, and the company or other legal entity for which You are accepting this Agreement, and affiliates of that company or entity (“You” or “Your”). This Agreement is effective, and You agree to its terms and conditions, as of the date that You accept the Agreement by (1) clicking a box indicating Your acceptance; (2) executing an order form that references this Agreement; or (3) using the Services (the “Effective Date”).
If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms “You” or “Your” shall refer to such entity and its affiliates.
This Agreement was last updated on July 28, 2022.
- OUR RESPONSIBILITIES
- USE OF SUBSCRIPTION SERVICES
- THIRD PARTY APPLICATIONS
- FEES AND PAYMENT FOR SERVICES
- PROPRIETARY RIGHTS AND LICENSES
- REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
- MUTUAL INDEMNIFICATION
- LIMITATION OF LIABILITY
- TERM AND TERMINATION
- NOTICES, GOVERNING LAW AND JURISDICTION
- GENERAL PROVISIONS
1.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2. “Beta Services” means Our services that are not generally available to customers.
1.3. “Documentation” means the online documentation, as may be updated from time to time, made publicly available by Pitchup describing the Services features, including user guides and other information relating to the Services.
1.4. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
1.5. “Third Party Applications” means products, services or information that interoperate with the Services and are provided by third parties and not by Us.
1.6. “Order Form” means an ordering document specifying the Subscription Services and/or Professional Services to be provided hereunder that is entered into between You and Us, including any addenda and supplements thereto. You may also allow an Affiliate to obtain access to Subscription Services or Professional Services pursuant to this Agreement by executing an Order Form referencing this Agreement. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
1.7. “PII” means information that can be used on its own or with other information to identify, contact, or locate a single person, or to identify an individual in context.
1.8. “Professional Services” means onboarding, implementation, training, configuration, consulting, or other professional services ordered by You under an Order Form and as further described in a SOW. For the avoidance of doubt, Professional Services are not tied to the subscription term of Subscription Services and also exclude standard maintenance and support included with the Subscription Services.
1.9. “Services” means the Subscription Services and Professional Services made available to You under this Agreement.
1.10. “SOW” means the statement of work further describing the Professional Services to be provided to You.
1.11. “Subscription Services” means the Pitchup web services that are ordered by You pursuant to an Order Form and made available online by Us, including any releases, updates, or upgrades during the subscription term. “Subscription Services” exclude Third Party Applications.
1.12. “User” means an individual who is authorized by You to use a Service on Your or Your authorized Affiliate’s behalf, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents.
1.13. “Your Data” means electronic data and information submitted, transferred, or uploaded by or to the Subscription Services and processed by Us on Your behalf (including electronic data and information the Services may obtain from Third Party Applications such as salesforce.com).
2. OUR RESPONSIBILITIES
2.1. Provision of Subscription Services. We will (a) make the Subscription Services available to You pursuant to this Agreement and the applicable Order Forms, in accordance with the Documentation, (b) provide Our standard support, as set forth in the Documentation for the Subscription Services to You at no additional charge, and (c) use commercially reasonable efforts to make the Subscription Services available 24 hours a day, 7 days a week, except for any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), failure or delay of providers of Internet service or Third Party Applications, or denial of service attack.
2.2. Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data located on Our servers. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification, and disclosure of Your Data by or to third parties lacking a valid username and password and by Our personnel, except for actions by Our personnel (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.3 (Compelled Disclosure) below, (c) as provided in Section 6.4, or (d) as You expressly permit in writing.
2.3. Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement.
2.4. Beta Services. From time to time, We may invite You to try or otherwise make Beta Services available to You at no charge. You may accept or decline any such Beta Services in Your sole discretion. Beta Services will be clearly designated as beta, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes only and are not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered “Services” under this Agreement, provided however, all restrictions in this Agreement shall apply equally to Your use of Beta Services. We may discontinue Beta Services at any time in Our sole discretion and may or may not make them generally available. Beta Services are provided “as-is”, without warranties of any kind. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
2.5. Professional Services. Professional Services, if applicable, shall be set forth in an Order Form, with a SOW attached. The SOW shall include the scope, schedule and/or timeline, fees, the deliverables (if any), and any other terms applicable to such Professional Services. Each SOW shall be deemed to be part of the Agreement upon full execution of such SOW. To the extent any terms set forth in any SOW conflict with the terms of the Agreement, the terms of the SOW shall prevail, but only with respect to the Professional Services described in the applicable SOW. We agree to perform the Professional Services in a timely and professional manner consistent with industry standards and in accordance with the specifications of the applicable SOW. In the event of Our failure to comply with the obligations in this section, as Your sole and exclusive remedy, We shall correct or re-perform the noncomplying Professional Service.
3. USE OF SUBSCRIPTION SERVICES
3.1. Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Subscription Services are purchased as subscriptions, (b) Subscription Services may be added during a subscription term at the same pricing as the underlying pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added Subscription Services will terminate on the same date as the underlying Subscription Services.
3.2. Usage Limits. Subscription Services are subject to usage limits, including, for example, the quantities specified in Order Forms and technical and functional requirements set forth within Our Documentation. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Subscription Services. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Subscription Services promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 5.2 (Invoicing and Payment).
3.3. Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality, and legality of Your Data and the means by which You acquired Your Data and provide it to Us, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, (d) use the Services only in accordance with applicable laws and government regulations, and (e) comply with terms of service of Third Party Applications with which You use the Services.
3.4. Usage Restrictions. You will not (a) make any Service available to, or use any Service for the benefit of, anyone other than You or Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service, or include any Service in a service bureau or outsourcing offering, (c) access the Service if you are Our direct competitor, (d) use a Service to store or transmit data that infringes the intellectual property rights or other proprietary rights of any third party or violates third-party privacy rights, (e) use a Service to store or transmit Malicious Code, (f) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (g) attempt to gain unauthorized access to or perform security testing on any Service or its related systems or networks, (h) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, (i) copy a Service or any part, feature, function, or user interface thereof, (j) frame or mirror any part of any Service, other than framing on Your own intranets or otherwise for Your own internal business purposes, (k) access any Service or monitor the Services availability, performance or functionality in order to build a competitive product or service, or for any other benchmarking or competitive purposes, or (l) reverse engineer any Service (to the extent such restriction is permitted by law).
3.5 Suspension. We retain the right to suspend the Services, Your accounts, and User accounts in the event of any security threat or Your breach or threatened breach of any of the restrictions in Section 3. We will terminate any such suspension as soon as We determine that the risk underlying the suspension has been mitigated to Our satisfaction.
3.6 Use of the Services. You are responsible for identifying and authenticating all Users, for approving access by such Users to the Services, for controlling against unauthorized access by Users, and for maintaining the confidentiality of usernames, passwords and account information. By federating or otherwise associating Your and Your Users’ usernames, passwords, and accounts with Us, You accept responsibility for the confidentiality and timely and proper termination of user records in Your local (intranet) identity infrastructure or on Your local computers. We are not responsible for any harm caused by Your Users, including individuals who were not authorized to have access to the Services but who were able to gain access because usernames, passwords or accounts were not terminated on a timely basis in Your local identity management infrastructure or Your local computers. You are responsible for all activities that occur under Your and Your Users’ usernames, passwords or accounts or as a result of Your or Your Users’ access to the Services.
3.7. Additional Limitations on Use. You acknowledge and agree that use of the Services to transmit, store, or otherwise process “Highly Sensitive Information” is unnecessary for use of the Services and You shall be solely responsible for any such use of the Services by You or Your Users, including ensuring that transmittal, processing, or storage of such information is in compliance with applicable laws. “Highly Sensitive Information” is defined as (a) numbers used for identification, such as social security numbers, passport numbers, or driver’s license numbers; (b) personal health or medical information; (c) banking or payment card information; (d) sensitive government or military information, including information subject to U.S. FedRAMP requirements; (e) information collected from or regarding minors or children; (f) other personal information which a reasonable person would believe to be particularly sensitive, such as a person’s religious or philosophical beliefs, sexual life or sexual orientation, or criminal history; or (g) data which by law must be localized in a jurisdiction outside of the United States or requires additional requirements beyond those agreed upon herein to permit transfer to the United States. Notwithstanding anything to the contrary in this Agreement, We shall not be liable for Our noncompliance with a law or regulation where such noncompliance would not have occurred but for Your use or provision of Highly Sensitive Information in connection with the Services.
4.THIRD PARTY APPLICATIONS
4.1.Third Party Applications. You may choose to obtain Third Party Applications (for example, Google oAuth and salesforce.com) for interoperation or use with optional Services features. To use such features, You may be required to obtain access to Third Party Applications from their providers. Any acquisition by You of Third Party Applications, any exchange of data between You and any provider of a Third Party Application, and any governing terms are solely between You and the applicable provider. No procurement of Third Party Applications is required to use the Services. We assume no responsibility for, and specifically disclaim any liability, warranty, and obligation with respect to Third Party Applications, whether or not they are recommended or approved by Us, listed within Our App directory, or otherwise. If You elect to integrate Third Party Applications with the Services, You agree that the Services may access Your Third Party Applications account to enable interoperation between (including, if applicable, the exchange and transmission of data) the Services and the applicable Third Party Applications. If the provider of a Third Party Application ceases to make the Third Party Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing those Service features without entitling You to any refund, credit, or other compensation.
4.2 Special Terms. Some Third Party Applications are subject to specific terms if you use them.
5. FEES AND PAYMENT FOR SERVICES
5.1. Fees. You will pay all fees specified in Order Forms and SOWs, as applicable. Except as otherwise specified herein or in an Order Form or SOW, (i) payment obligations are non-cancelable and fees paid are non-refundable, and (ii) quantities purchased cannot be decreased during the relevant subscription term.
5.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 11.2 (Term of Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
5.3. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for the Services is 30 or more days overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 30 days’ prior notice that Your account is overdue, in accordance with Section 12.1 (Notice), before suspending Services to You.
5.4. Payment Disputes. We will not exercise Our rights under 5.3 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
5.5. Taxes. Our fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 5.5, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property, and employees.
5.6. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
6. PROPRIETARY RIGHTS AND LICENSES
6.1. Reservation of Rights. Subject to and conditioned on Your payment of applicable fees, We grant You and Your Users a limited, non-exclusive, non-transferable (except in compliance with Section 13.4) right to access and use the Services and Our Documentation during the subscription term for Your reasonable internal business purposes, subject to and in accordance with the terms and conditions of this Agreement. No rights are granted to You hereunder other than the right to receive and use the Services as expressly set forth herein. We and Our licensors reserve all of Our/their right, title, and interest in and to the Services, including all of Our/their related intellectual property rights.
6.2. License by You to Host Your Data and Applications. You grant Us and Our Affiliates a worldwide, limited-term right to host, copy, transmit, and display Your Data (1) as necessary for Us to provide the Services, or otherwise exercise Our rights or obligations pursuant to this Agreement; (2) as necessary to provide support, address service issues/requests, or otherwise enhance Your use of the Services; (3) as required by law, regulation, or in accordance governmental request with legal process; (4) as requested by You; (5) to investigate or address security or integrity issues related to the Services. Except as expressly permitted by this Agreement, We acquire no right, title, or interest from You or Your licensors under this Agreement in or to Your Data or any Third Party Application.
6.3. License by You to Use Feedback; Marketing. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction, or other feedback provided by You or Users relating to the operation of the Services. We may, during Term of Agreement, reference You as a customer or user of the Services subject to any trademark or logo usage guidelines that You may provide to Us.
6.4. Use of Data. We shall have the right to (and to retain third parties to) collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies, provided that Your Data that is also personal information will only be used in connection with the permitted purposes in Section 6.2, unless such personal data is aggregated or otherwise de-identified. We may (during and after the term hereof) (i) use such information and data to improve and enhance the Services and for other development, benchmarking, diagnostic, and corrective purposes in connection with the Services and Our other offerings, and (ii) use third party service providers, contractors, and subcontractors (“Our Providers”) to assist in providing, supporting, and improving the Service. We may share all such information and data with Our Providers, who may store and use it solely to provide, support, and improve the Service. We shall be responsible for the compliance of Our Providers with the provisions of this Agreement.
6.5. Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
7.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party who, to the knowledge of the Receiving Party, did not acquire or disclose such information by a wrongful or tortious act and without breach of any obligation owed to the Disclosing Party or any other party, or (iv) was independently developed by the Receiving Party without use of or reference to Disclosing Party’s Confidential Information.
7.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ directors, officers, employees, and contractors who need that access for purposes of performing under this Agreement and who have signed confidentiality agreements with the Receiving Party. Neither party will disclose Confidential Information (including but not limited to the terms of this Agreement or any Order Form) to any third party without the written consent of the Disclosing Party other than to its Affiliates solely as needed to perform its obligations under this Agreement, legal counsel, auditors, professional advisors, and accountants who have agreed to confidentiality obligations protective of the Disclosing Party’s Confidential Information in writing or who have a statutory/regulatory obligation of confidentiality. The Receiving Party will remain responsible for such Affiliate’s, legal counsel’s, auditor’s, professional advisor’s, or accountant’s noncompliance with this Section 7.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil or administrative proceeding to which the Disclosing Party is a party, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
8.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2. Our Warranties. We warrant that the Subscription Services will operate in substantial conformity with the then current version of the applicable published Documentation provided by Us. For any breach of such warranty, as Your sole remedy, We will correct the nonconformity within a reasonable period of time. Subject to the foregoing, We reserve the right to make changes or updates to the Subscription Services (such as to the infrastructure, security, technical configurations, application features, service descriptions, etc.) during Your subscription, including to reflect changes in technology, industry practices, and patterns of system use.
8.3. Mutual Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
8.4 Additional Disclaimers. WE DO NOT WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT WE WILL CORRECT ALL SERVICES ERRORS. WE ARE NOT RESPONSIBLE FOR DATA QUALITY ISSUES OR LOSS OF DATA AND YOU WILL MAINTAIN BACKUP COPIES OF YOUR DATA ON YOUR OWN SYSTEMS. WE ARE NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION, OR SECURITY OF THE SERVICES THAT ARISE FROM YOUR CONTENT OR THIRD PARTY APPLICATIONS. UPLANCER HAS NO RESPONSIBILITY FOR THE PERFORMANCE OR OTHER OBLIGATIONS OF ANY PROVIDERS OF THIRD PARTY APPLICATIONS.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by Us. We will defend You, Your Affiliates, and You or their officers, directors, employees, agents, and contractors (“Your Indemnified Parties”) from and against any claims, demands, suits, or proceedings brought by a third party (“Claims”) alleging that Your authorized use of Subscription Services or Professional Services infringes such third party’s valid United States patent, copyright, or trademark. We will indemnify and hold Your Indemnified Parties harmless from and against any liability, damages, and costs (including, without limitation, reasonable attorney’s fees) finally awarded by a court or entered into a settlement to the extent based on such Claims. Notwithstanding the foregoing, if We reasonably believe that Your use of any portion of the Services is likely to be enjoined by reason of a Claim of infringement, violation, or misappropriation of any third party intellectual property rights then We may, at Our expense and in Our sole discretion: use commercially reasonable efforts to (i) procure for You the right to continue using the Services; (ii) replace the same with other non-infringing software or services of substantially equivalent functions; or (iii) modify the applicable software or services so that there is no longer any infringement, violation, or misappropriation, provided that such modification does not adversely affect the functional capabilities of the Services. If, in Our opinion, the remedies in clauses (i), (ii), and (iii) above are infeasible or commercially impracticable, We may, in Our sole discretion, terminate this Agreement and refund You a prorated amount equal to the pre-paid fees covering the whole months that would have remained, absent such early termination, following the effective date of such early termination. Our foregoing indemnification obligation will not apply: (1) if the Services are modified by any party other than Us, to the extent the alleged infringement is caused by such modification; (2) if the Services are combined with other products, applications, or processes not provided by Us, to the extent the alleged infringement is caused by such combination; (3) to Claims arising out of any unauthorized use of the Services; (4) to Claims arising out of any Third Party Applications; or (5) to Claims arising out of Your Data. THIS SECTION 9.1 SETS FORTH OUR SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.
9.2. Indemnification by You. You will defend Us and Our Affiliates, and Our and their officers, directors, employees, agents, and contractors (“Our Indemnified Parties”), from and against any Claims arising from or relating to Your Data or misuse of the Services, and will indemnify and hold Our Indemnified Party’s harmless from and against any liability, damages, costs, and expenses (including but not limited to reasonable attorney fees) incurred in connection with such Claims.
9.3 Procedures. Each party’s indemnity obligations are subject to the following: (i) the indemnified party will promptly notify the indemnifying party in writing of the applicable Claim; (ii) the indemnifying party will have sole control of the defense and all related settlement negotiations with respect to the Claim, provided that the indemnifying party may not settle any Claim unless it unconditionally releases the indemnified party of all liability and receives indemnified party written approval (which will not be unreasonably withheld) of any conditions imposed by the settlement, if applicable; and (iii) the indemnified party will cooperate fully to the extent necessary and as requested in the Claim investigation, defense, and trial (including any appeal arising therefrom), and execute all documents necessary for the defense of such Claim.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE ABOVE LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. However, the foregoing limitations shall not apply to (a) liability for personal injury; (b) liability arising out of gross negligence or willful misconduct; or (c) Your payment obligations under this Agreement. No action against Us arising out of this Agreement may be brought more than one (1) year after the cause of action has arisen.
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all subscriptions hereunder have expired or until this Agreement is terminated pursuant to Section 11.3.
11.2. Term of Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal between 120 days and 60 days before the end of the relevant subscription term. The per-User pricing during any automatic renewal term will not be increased by more than 7% of the pricing for the applicable Service in the immediately prior subscription term, unless the pricing in the prior term was designated in the relevant Order Form as promotional or one-time. The number of Users subscribed during any automatic renewal term shall be the number of Users subscribed at the end of the previous term.
11.3. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) 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.
11.4. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 11.3 (Termination), We will refund You 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 Us in accordance with Section 11.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
11.5. You authorize Us to retain Your Data for 30 days after any termination or expiration of this Agreement. Notwithstanding the foregoing, following any such termination or expiration, We have no obligation to maintain Your Data. Upon request, We will delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited.
11.6. Surviving Provisions. The Sections titled “Fees and Payment for Purchase Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “Mutual Disclaimers,” “Additional Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Notices, Governing Law and Jurisdiction,” and “General Provisions,” and Section 11.5 will survive any termination or expiration if this Agreement.
12. NOTICES, GOVERNING LAW AND JURISDICTION
12.1. Notices. Except as otherwise specified in this Agreement, all notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You. Notices to Us should be addressed to Uplancer Agency LLC, 1560 Fishinger Road, Suite 130C, Columbus, Ohio, 43221; Attention: Legal Department.
12.2. Governing Law and Jurisdiction. Each party agrees to the governing law of the State of Georgia without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of federal and state courts sitting in Columbus, Ohio.
13. GENERAL PROVISIONS
13.1. Export Compliance. The Services may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan, or Syria) or in violation of any U.S. export law or regulation.
13.2. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Us.
13.3. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. We may modify this Agreement by updating the Agreement as it appears on Our website. Additionally, the parties may modify or amend this Agreement in a written instrument signed by both parties. Changes or amendments to Your Order Form(s) may be accomplished only in a written instrument signed by both parties. The parties agree that any term or condition stated in Your purchase order, supplier information/setup or similarly titled forms, invoice management platforms, or in any other of Your order documentation (excluding Order Forms) is void, including where such order, form, or other documentation is signed by Us. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, and (2) this Agreement.
13.4. 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), following written notice to but 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. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
13.6. No Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
13.7. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
13.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void or, preferably, ‘blue-penciled’ and scaled back until it is no longer contrary to law, and the remaining provisions of this Agreement will remain in effect.