Uptake Master Subscription Agreement

This Master Subscription Agreement (“MSA”) is between Uptake Technologies, Inc. (“Uptake”) and “Customer” identified on an Order Form referencing this MSA. This Master Subscription Agreement and any Order Forms referencing this Master Subscription Agreement, taken together, constitute the “Agreement.”

1. INTRODUCTION

This Agreement contains the terms and conditions that govern Customer and Customer's Authorized Users’ access to and use of the Product(s) listed on an Order Form referencing this Master Subscription Agreement between Customer and Uptake.

2. DELIVERY AND USE OF THE PRODUCT

Delivery. Uptake will use its commercially reasonable efforts to make the Product available to during the Term. Uptake’s delivery is subject to Customer providing all necessary data and information and performing all Customer obligations under this Agreement.

Updates. Any new or enhanced versions of the Product made available are subject to the terms of this Agreement unless otherwise indicated. Certain features and functions of the Product may be dependent upon or limited by the design and configuration of Customer's systems or the availability of Customer Data.

Access to and Use of Product. Customer may access and use the Product only in accordance with the terms of this Agreement. All rights not expressly given to Customer in this Agreement are reserved by Uptake.

Customer will use the Product only in a commercially reasonable manner for your legitimate internal business purposes. Customer will, and will cause each Authorized User to, (a) adhere to all laws, rules, and regulations applicable to the access and use of the Product and (b) not use the Product in a manner inconsistent with this Agreement. 

Restrictions on Use. Customer will not (a) make any part of the Product available to, or use any part of the Product   for the benefit of, anyone other than Customer, (b) sell, resell, license, sublicense, transfer, assign, distribute, make available, rent or lease any part of the Product, or include any part of the Product in a service bureau or outsourcing offering, (c) use the Product to store or transmit infringing or libelous material or to store or transmit material in violation of third-party privacy rights (d) use the Product to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of any part of the Product or third-party data contained therein, (f) attempt to gain unauthorized access to any part of the Product or its related systems or networks, (g) permit direct or indirect access to or use of any part of the Product in a way that circumvents a contractual usage limit, or use any of part of the

Product to access or use any of Uptake’s intellectual property except as permitted under this Agreement, (h) copy the Product or any part, feature, function or user interface thereof, (i) copy non-Customer content except as permitted herein, (j) frame or mirror any part of the Product, other than framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes, (k) access any part of the Product in order to build a competitive  product or service, or (l) reverse engineer any Product (to the extent such restriction is permitted by law).

Hardware. Hardware provided for use with the Product is provided for use in accordance with this Agreement and the terms of any third party provider. Customer may only use the hardware with the Product, and for no other purpose. Upon termination or expiration of the Order or this Agreement, Customer is responsible for returning the hardware to Uptake Technologies, Inc., Attn: Hardware Returns, 600 W. Chicago Avenue, Chicago, Illinois 60654. 

3. AUTHORIZED USERS

Customer agrees that the Product may be accessed or used only during the Term by Customer and its Authorized Users. “Authorized User” means an employee or independent contractor of Customer working on its behalf. To register and use the Product, Authorized Users must create a user name and password, provide Uptake with true, accurate, current and complete registration information, and update such information when necessary. If Uptake has reasonable grounds to suspect that any information provided by an Authorized User is inaccurate, incomplete or untrue, Uptake may suspend or terminate Customer's and/or the Authorized User’s right to use Product. Any breach by an Authorized User of this Agreement will be deemed a breach by Customer.

4. DATA COLLECTION, USE, AND OWNERSHIP

Collection of Customer Data. “Customer Data” means all data made available by Customer directly or via connectors between Customer's systems and the Product. Examples of Customer Data include data generated by Customer's enterprise systems and information gathered via the Product user interface to manage and configure Customer's accounts. Customer represent and warrant that Customer has the right to make available the Customer Data and grant the rights listed below in such data to Uptake and its third-party providers. Uptake reserves the right to refuse to accept any Customer Data or other data or information Customer or its Authorized Users may provide, which, in Uptake’s sole discretion, is unlawful or otherwise poses undue risk.

Use and Disclosure of Customer Data. Customer grants to Uptake and its third-party providers a non-exclusive, worldwide, perpetual, paid-up, license to: (a) access, use, process, manipulate, modify and/or create derivative works of the Customer Data as necessary to make the Product available to Customer. Derivative works of Customer Data that are anonymized and/or aggregated in a way that does not plainly identify Customer constitute “Product Data.” Uptake may use, display, process, manipulate, modify, and/or create derivative works of Product Data.

Data Ownership. Customer owns all Customer Data. Uptake owns all other data incorporated in or displayed in the Product, including the Product Data. Customer's use of third party hardware or software or hardware is subject to the terms of use of such third-party provider.

Receipt, Archival, and Retrieval of Customer Data. Uptake will close Customer's account upon the termination of this Agreement. Unless otherwise agreed by Uptake, Customer will no longer be able to access any information  contained in that account following termination. 

Data and Information Systems Security. Each party will establish and maintain reasonable environmental, safety and facility procedures, data security procedures, and other safeguards against the unauthorized, accidental, or unlawful processing, destruction, loss, alteration, or theft of or unauthorized disclosure of or access to any Customer Data or to the information systems used with the Product. Such procedures and safeguards shall be at least as rigorous as those used by similar companies providing similar services and shall be adequate to meet the requirements of applicable laws, provided that in no circumstance will any party employ standards that are less protective than that party uses for its own data of similar nature. Neither party shall take any steps to attempt to circumvent or defeat any security controls related to Product or the other party’s information systems. 

5. PRIVACY

Privacy Statements. By registering for Product or using Product, Customer or its Authorized Users may provide data to Uptake that is personally identifiable (“Personal Data”), including the Authorized Users’ user names and other personal information. Uptake will use Personal Data in accordance with the Product Privacy Statement and this Agreement. By using Product, Customer consents to the collection, use, disclosure, and other processing of  Personal Data in accordance with this Agreement and the Product Privacy Statement.

Location of Data. Uptake may, or Customer may by using Product, transmit Personal Data to a jurisdiction that does not provide the same level of data protection as the legal jurisdiction in which Customer is located. By entering such information and/or using Product, Customer consents to the transfer of Personal Data to, and processing of Personal Data in, such jurisdiction, as described in this Agreement and the Product Privacy Statement.

Compliance with Laws; Consents. In relation to all Personal Data, Customer will remain the controller and will be responsible for compliance with applicable data protection laws and regulations. To the extent Uptake processes Personal Data under this Agreement, it shall do so only as the processor acting on behalf of Customer (as “controller”) and in accordance with the requirements of this Agreement and the Product Privacy Statement. The terms “controller” and “processor” shall have the meanings given to them in the General Data Protection Regulation (Regulation (EU) 2016/679) or any other data protection law or regulation applicable to Personal Data processed under this Agreement. 

6. INTELLECTUAL PROPERTY RIGHTS

Except to the extent expressly provided in this Agreement and with respect to Customer Data, Customer agrees and acknowledges:

–    Uptake owns or licenses from third parties all rights under patent law, copyright law, trade secret law, trademark law, and all other proprietary or moral rights, and all applications, renewals, extensions and restorations, now or later in force and effect worldwide (“Intellectual Property Rights”) in connection with or relating to this

Agreement and the Product, including the design, structure, selection, coordination, expression, “look and feel” and arrangement of the Product interface (“Uptake IP”).

–    Customer has no right, license, or interest in any Intellectual Property Rights in the Product.

–    Uptake owns all right, title and interest in and to any replacements, improvements, updates, enhancements, derivative works and other modifications (including the incorporation of any ideas, methods or processes provided by or on behalf of Customer, each and collectively, “Modifications”) to Uptake IP made by any person, even if paid for by Customer and regardless of whether they are similar to any of Customer's Intellectual Property Rights. Customer will take all action necessary to vest such ownership in Uptake, including assigning (and Customer hereby assigns) to Uptake all rights (including Intellectual Property Rights) in and to such Modifications.

–    Customer may not remove, obscure, or alter any copyright, trademark, or other proprietary notices embedded in or affixed to the Product.

–    Uptake may, at its sole discretion, disable and terminate the accounts of Authorized Users who may be infringing, misappropriating, or otherwise violating Uptake’s Intellectual Property Rights.

7. CHARGES AND FEES

Customer shall pay Uptake as set forth on the Order Form during the Term. Customer is responsible for consumption, sales, transaction, use, services, excise, value added, turnover, franchise or other taxes or other governmental fees (excluding any such taxes in respect of Uptake’s income) that Customer or Uptake may be required to pay for the Product, all of which shall be paid by Customer as an additional charge.

8. WARRANTIES; LIMITATION OF LIABILITY;  INDEMNITIES

No Warranties. The Product is provided AS IS, WHERE IS. Uptake makes no guarantee that the data displayed in the Product is accurate or that the Product will predict or prevent all asset issues or failures. Uptake makes no other warranties regarding the Product, and disclaims all warranties, express and implied, including but not limited to any warranty of merchantability or fitness for a particular purpose. IN NO EVENT SHALL UPTAKE HAVE ANY LIABILITY FOR ANY LOSS OF PROFITS OR REVENUES, LOSS OF DATA OR INFORMATION, OR LOSS OF BUSINESS OPPORTUNITY, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, IN EACH CASE HOWEVER CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT UPTAKE HAS BEEN ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY UNDER THIS AGREEMENT.

Limitation of Liability; Remedy. IN NO EVENT SHALL UPTAKE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER IN THE SIX (6) MONTHS PRECEDING THE FIRST CLAIM BY CUSTOMER FOR ANY SUCH LIABILITY, NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY UNDER THE AGREEMENT.

Customer Indemnification. Customer agrees to indemnify, defend and hold harmless Uptake and its officers, directors, affiliates, and employees (“Uptake Parties”) from and against any and all claims, lawsuits, demands, actions or other proceedings threatened or brought against them by any third party due to, arising out of or related to (a) Customer or its Authorized Users' use of the Product, (b) Customer's violation of this Agreement, (c) any information submitted, transmitted or made available to the Uptake Parties or as part of the Product, by or on behalf of Customer, including Customer Data, or (d) Customer's violation of any law, regulation or third party rights. Uptake, at its expense, may assume the exclusive defense and control of any matter subject to indemnification by Customer, in which event Customer agrees to cooperate with Uptake in asserting any available defenses.

Uptake Indemnification. Uptake shall indemnify, defend and hold harmless Customer, its employees, officers or directors or Authorized Users (“Customer Parties”) against any and all claims, lawsuits, demands, actions or other proceedings threatened or brought against any of the Customer Parties by any third party alleging that Customer's use of the Product, as permitted under this Agreement, infringes or misappropriates the patent, copyright or trade secret rights of a third party. If such a Claim is brought or threatened, Uptake may, in its sole discretion, (a) procure for Customer the right to use the applicable third-party Product, (b) modify or replace the Product, or (c) terminate this Agreement upon notice and refund any corresponding prepaid fees that have not been earned. Uptake will have no liability to the extent a Claim is based upon (i) use of the Product in combination with software, hardware or technology not provided by Uptake, if the infringement or misappropriation would not have occurred in the absence of the combination, (ii) modifications to the Product not made by Uptake, (iii) use of any version other than a current release of the Product, if infringement or misappropriation would not have incurred by use of a current release, or (iv) any act or omission by any Customer Parties that would require Customer to indemnify Uptake.

9. TERM AND TERMINATION 

Term. The term of this Agreement for each Product shall be as set forth on the Product Order Form ("Initial   Term").  Upon expiration of the Initial Term, the Agreement will automatically renew for subsequent renewal  periods (each, a "Renewal Term") of one (1) year unless either party provides written notice of its intent not to renew no less than sixty (60) days prior to the expiration of the Initial Term or any Renewal Term. The Initial Term and any Renewal Term(s) shall be the "Term." The Fee for such Renewal Term shall be Uptake's then-current annual fee.

Uptake’s Right to Terminate or Suspend. Uptake may suspend access to Product and/or terminate this Agreement or any individual Order Form(s), without liability, if: 

  • Customer violates this Agreement or breach the terms of any other valid agreement with Uptake;
  • Customer fails to pay any fees or other amounts owed when due;
  • Customer becomes insolvent, file for bankruptcy, or cease to do business in the ordinary course; or
  • Uptake has reason to believe that Customer or its Authorized Users are abusing Product or using it fraudulently or unlawfully.

Customer’s Right to Terminate. Customer may terminate this Agreement upon thirty (30) days’ written notice if Uptake breaches any provision of this Agreement or becomes insolvent, files for bankruptcy, or ceases to do business in the ordinary course, and such breach remains uncured following the 30- day notice period.

Survival. The provisions under the headings Data Collection, Use, and Ownership, No Warranties, Limitation of Liability; Remedy, Indemnification, Dispute Resolution and Mandatory Arbitration shall survive the termination of this Agreement.

Force Majeure. The Uptake Parties will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond any of their reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electric, telecommunications, or other utility failures, cyber-attacks, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

10. DISPUTE RESOLUTION AND MANDATORY ARBITRATION

All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in Chicago, Illinois or another location mutually agreeable to the Parties. Customer agrees to submit to arbitration in Chicago. This Agreement shall be governed by the laws of the State of Illinois (regardless of any conflict of laws principles). The laws of the United Nations Convention on Contracts for the International Sale of Goods shall not apply. 

11. OTHER

Waiver. The failure by Uptake to exercise its rights upon the occurrence of any violation of this Agreement shall not constitute a waiver of such rights.

Publicity. Customer agrees that Uptake may include Customer's name on a list of customers using the Product.

Assignment. Customer may not assign this Agreement without Uptake’s prior written consent. Uptake may assign this Agreement, in connection with the sale of substantially all of the assets or Uptake’s stock, upon notice to Customer.

Feedback, Information, and Inquiries. Should Customer or its Authorized Users choose to respond directly to Uptake with comments, questions, suggestions, ideas or the like relating to Product (“Feedback”), such Feedback shall be deemed non-confidential and Uptake shall have no obligation to respond. In addition, by submitting Feedback, Customer grants to Uptake a non-exclusive right to use, display, reproduce, modify and distribute the Feedback, including by developing, manufacturing, and marketing products incorporating such Feedback. All notices required to be delivered in writing should be sent to [email protected] All other inquiries, including comments, questions, suggestions, troubleshooting assistance, or requests for support, should be directed to s[email protected]

Notices and Information. Customer agrees that Uptake may contact Customer to provide Customer with information and notices relating to Product, this Agreement, or for other commercial reasons.