December 7, 2023
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY UPTAKE PRODUCTS, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE PRODUCTS. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.
IF YOU ARE USING ANY PRODUCTS AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
AGREEMENT
This Master Subscription Agreement (“Agreement”) is entered into by and between Uptake Technologies, Inc. and the entity or person placing an order for, or accessing, any Products (“Customer” or “you”). This Agreement consists of the terms and conditions set forth below and any attachments, addenda or exhibits referenced in the Agreement, and any Order Forms that reference this Agreement. Capitalized terms are defined in Section 13 below.
The “Effective Date” of this Agreement is the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer through an Order Form that reference this Agreement.
Modifications to this Agreement: From time to time, Uptake may modify this Agreement. Unless otherwise specified by Uptake, changes become effective for Customer upon renewal of the then-current Subscription Term or upon the effective date of a new Order Form after the updated version of this Agreement goes into effect. Uptake will use reasonable efforts to notify Customer of any material changes through communications via Customer’s account, email or other means. Continued use of any Product after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.
1. Use of Product
1.1. Product Provision and Access. Uptake will make the Product available to Customer for the Subscription Term solely for use by Customer and its Users in accordance with the terms and conditions of this Agreement and the Order Form. Customer may permit its Contractors to serve as Users provided that any use of the Product by each such Contractor is solely for the benefit of Customer. Customer shall be responsible for each User’s compliance with this Agreement. To the extent use of the Product requires Customer to install third party software, Uptake grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during the Subscription Term to use the object code form of the third party software internally in connection with Customer’s use of the Product, subject to the terms and conditions of this Agreement.
1.2. Affiliates. Customer Affiliates may purchase Products from Uptake by executing an Order Form which is governed by the terms of this Agreement. This will establish a new and separate agreement between the Customer Affiliate and the Uptake entity signing such Order Form. If the Customer Affiliate resides in a different country than Customer, then the Order Form may include modifications to terms applicable to the transaction(s) (including, but not limited to, tax terms and governing law).
1.3. Compliance with Applicable Laws. Uptake will provide the Products in accordance with its obligations under laws and government regulations applicable to Uptake’s provision of such Products to its customers generally, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data, without regard to Customer’s particular use of the Products and subject to Customer’s use of the Products in accordance with this Agreement.
1.4. General Restrictions. Customer will not (and will not permit any third party to): (a) sell, rent, lease, license, distribute, provide access to, sublicense, or otherwise make available the Product to a third party (except for Product features expressly intended to enable Customer to provide its third parties with access to Customer Data, or in a service bureau or outsourcing offering); (b) use the Product to provide, or incorporate the Product into, any general purpose data warehousing Product for the benefit of a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Product, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Uptake); or (d) remove or obscure any proprietary or other notices contained in the Product.
1.5 Acceptable Use. Customer will not and will not allow third parties to use the Product: (a) to store, transmit, or make available (i) content that is infringing, libelous, unlawful, tortious, or in violation of third-party rights, (ii) content or technology that harms, interferes with, or limits the normal operation of the Products, including monitoring traffic or data, or (iii) viruses, malware, or other malicious code; (b) for illegal, threatening, or offensive uses, or for similarly objectionable purposes, such as propagating hate or violence or causing harm to others or to our reputation; (c) to transact in, or facilitate activities related to, misappropriating another individual’s identity, including, but not limited to, improperly obtained credit card information and/or account credentials; (d) to attempt to gain unauthorized access to the Products or any related systems, including those of Uptake’s subcontractors and other customers or users; (e) to permit direct or indirect access to or use of the Products in a way that violates the Agreement or use of the Product to access or use any intellectual property in or related to the Products except as permitted under the Agreement; (f) to copy any part, feature, function or user interface of the Products; or (g) to build similar or competitive products or services.
2. Customer Data
2.1. Rights in Customer Data. As between the parties, Customer or its licensors retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of operation of the Product. Subject to the terms of this Agreement, Customer hereby grants to Uptake and its Affiliates a non-exclusive, worldwide, royalty-free right to process the Customer Data solely to the extent necessary to provide the Products to Customer, to prevent or address Product or technical problems therein, or as may be required by law.
2.2. Use Obligations. Customer’s use of the Products and all Customer Data will comply with applicable laws, government regulations, and any other legal requirements, including but not limited to, any data localization or data sovereignty laws, regulations, and any other third-party legal requirements applicable to Customer. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer warrants that Customer has and will have sufficient rights in the Customer Data to grant the rights to Uptake under this Agreement and that the processing of Customer Data by Uptake will not violate any laws or the rights of any third party.
3. Data Privacy.
The parties shall comply with the Data Processing Addendum.
4. Intellectual Property
4.1. Uptake Technology. Customer agrees that Uptake or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Uptake Technology. Except for the express limited rights set forth in this Agreement, no right, title or interest in any Uptake Technology is granted to Customer. Notwithstanding anything to the contrary herein, Uptake may freely use and incorporate any Feedback into Uptake’s products and Products.
4.2. Usage Data. Notwithstanding anything to the contrary in this Agreement, Uptake may collect and use Usage Data to develop, improve, support, and operate its products and Products. Uptake may not share any Usage Data that includes Customer’s Confidential Information with a third party except (a) in accordance with Section 5 (Confidentiality) of this Agreement, or (b) to the extent the Usage Data is aggregated and anonymized such that Customer and Customer’s Users cannot be identified.
4.3. Marketing. Uptake may use and display Customer’s name, logo or trademarks on Uptake’s website and in Uptake’s marketing materials in connection with identifying Customer as a customer of Uptake. Upon Customer’s written request, Uptake will promptly remove any such marks from Uptake’s website and, to the extent commercially feasible, Uptake’s marketing materials. If Uptake requests, Customer agrees to participate in a case study, press release and/or cooperate with Uptake in speaking to the media, and to speak at a future Uptake event.
5. Confidentiality.
Each party (as “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) to: (a) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement; and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who are bound by obligations of confidentiality to the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party shall, to the extent legally permitted, provide Disclosing Party with advance written notice and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
6. Fees and Payment; Taxes; Payment Disputes
6.1. Fees and Payment. All Fees are as set forth in the applicable Order Form. Except as expressly set forth in this Agreement, all payment obligations are non-cancelable and Fees are non-refundable. Fees are due annually in advance and will be invoiced upon execution of the Order Form. Invoices are due thirty (30) days from the date of invoice. If Customer issues a purchase order upon entering into an Order Form, then: (i) any such purchase order submitted by Customer is for its internal purposes only, and any purchase order terms to the extent they add to or conflict in any way with this Agreement or the applicable Order Form and such additional or conflicting terms will have no effect; (ii) it shall be without limitation to Uptake’s right to collect Fees owing hereunder; (iii) it shall be for the total Fees owing under the applicable Order Form; and (iv) on request, Uptake will reference the purchase order number on its invoices (solely for administrative convenience), so long as Customer provides the purchase order at least ten (10) business days prior to the invoice date. Customer is responsible for all third party data costs associated with its use of the Product. To the extent Uptake incurs any such third party data costs, Uptake will invoice Customer and Customer will pay that amount thirty (30) days from the date of invoice.
6.2. Taxes. Fees do not include Taxes. Customer is responsible for paying all Taxes associated with its purchases hereunder, including without limitation all use or access of the Products by its Users. If Uptake has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Uptake will invoice Customer and Customer will pay that amount unless Customer provides Uptake with a valid tax exemption certificate authorized by the appropriate taxing authority. Taxes will not be deducted from payments to Uptake, except as required by applicable law, in which case Customer will increase the amount payable as necessary so that, after making all required deductions and withholdings, Uptake receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. Upon Uptake’s request, Customer will provide Uptake its proof of withholding tax remittance to the respective tax authority.
6.3. Payment Disputes. Uptake will not exercise its rights under Section 7.2 (Termination for Cause) or Section 7.5(a) (Suspension of the Products) with respect to non-payment by Customer if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If the parties are unable to resolve such a dispute within thirty (30) days, each party shall have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any terms that would limit remedies on account of a dispute. Any undisputed amounts must be paid in full.
6.4 Renewal Subscription Term Fees. Except as otherwise provided in the applicable Order Form, Fees for any renewal Subscription Term: (i) shall be, at a minimum, subject to an increase equal to the increase in the CPI, unless Uptake provides notice of different pricing at least thirty (30) days prior to the applicable renewal Subscription Term; (ii) shall be charged automatically or invoiced at the start of each renewal Subscription Term; and (iii) shall not be lower than the Fees for the previous Subscription Term. Any one-time promotions or discounts are limited to the time period or Subscription Term set forth on the Order Form, and renewals for subsequent Subscription Terms will be at the applicable price set forth on the Order Form, subject to any price increases permitted by this section.
7. Term and Termination
7.1. Term. This Agreement is effective as of the Effective Date and will remain in effect so long as Customer has access to the Product or until terminated in accordance with its terms. Each Order Form will automatically renew unless either party gives notice of its intent not to renew not less than thirty (30) days prior to the expiration of the then-current Subscription Term.
7.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party: (a) fails to cure any material breach of this Agreement (including a failure to pay Fees) within thirty (30) days after written notice (without limiting Section 6.3 (Payment Disputes)); (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party and is not dismissed within 60 days. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
7.3. Effect of Termination. Upon termination Customer shall cease use of and access to the Products (including any related Uptake Technology) and delete all copies of any associated passwords or access codes, and any other Uptake Confidential Information in its possession. Notwithstanding any termination or anything to the contrary in this Agreement or any Order Form, Customer shall pay the Fees for all of its use of the Products.
7.4. Survival. The following sections will survive any expiration or termination of this Agreement: 1.6 (General Restrictions), 4 (Intellectual Property), 5 (Confidentiality), 6.1 (Fees and Payment), 6.2 (Taxes), 7 (Term and Termination), 8.3 (Warranty Disclaimer), 10 (Indemnification), 11 (Limitation of Remedies and Damages), 12 (General Terms), and 13 (Definitions).
7.5. Suspension of the Product. In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, Uptake reserves the right to suspend provision of the Product: (a) if any Fees are more than thirty (30) days overdue (and are not otherwise subject to Section 6.3 (Payment Disputes)); (b) if Uptake deems such suspension necessary as a result of Customer’s breach of Sections 1.4 (General Restrictions) or 2.2 (Use Obligations); (c) if Uptake reasonably determines suspension is necessary to avoid material harm to Uptake or its other customers; or (d) as required by law or at the request of governmental entities.
8. Warranty
8.1. Product Warranty. Uptake warrants that the Product will operate in substantial conformity with the applicable specifications. Customer’s sole remedy shall be for Uptake to correct any reported non-conformity with this warranty. This warranty will not apply if the error or non-conformance was caused by misuse of the Product, modifications to the Product by Customer or any third-party, or third-party hardware, software, or Products used in connection with the Product.
8.2. Mutual Warranty. Each party warrants that it has validly entered into this Agreement and has the legal power to do so.
8.3. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PRODUCT IS PROVIDED “AS IS,” AND UPTAKE MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. UPTAKE DOES NOT WARRANT THAT THE USE OF ANY PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES UPTAKE WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY.
9. Support and Availability.
During a Subscription Term, Uptake will provide Customer with support for the Product, in accordance with the Support Policy.
10. Indemnification
10.1. Indemnification by Uptake. Uptake will defend Customer against any claim by a third party alleging that the Product, when used in accordance with this Agreement, infringes any intellectual property right of such third party and will indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by Uptake (including reasonable attorneys’ fees) resulting from such claim. If Customer’s use of the Product results (or in Uptake’s opinion is likely to result) in an infringement claim, Uptake may either: (a) substitute functionally similar products or Products; (b) procure for Customer the right to continue using the Product; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement, or the applicable Order Form, and refund to Customer any prepaid unused Fees for the applicable Product. The foregoing indemnification obligation of Uptake will not apply to the extent the applicable claim is attributable to: (1) the modification of the Product by any party other than Uptake or based on Customer’s specifications or requirements; (2) the combination of the Product with products or processes not provided by Uptake; (3) any use of the Product in non-conformity with this Agreement; or (4) any action arising as a result of Customer Data, or any deliverables or components not provided by Uptake. This Section 10.1 sets forth Customer’s sole and exclusive remedy with respect to any claim of intellectual property infringement.
10.2. Indemnification by Customer. Customer will defend Uptake against any claim by a third party arising from or relating to any Customer Data or Customer Materials and will indemnify and hold harmless Uptake from and against any damages and costs awarded against Uptake or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim.
10.3. Indemnification Procedures. In the event of a potential indemnity obligation under Section 10, the indemnified party will: (a) promptly notify the indemnifying party in writing of the claim, (b) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (c) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under Section 10 shall not relieve the indemnifying party of its obligations under Section 10. However, the indemnifying party shall not be liable for any litigation expenses the indemnified party incurred before such notice was given, or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this section. The indemnifying party may not settle any claim that would bind the indemnified party to any obligation (other than payment covered by the indemnifying party or ceasing to use infringing materials) or require any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Any indemnification obligation under Section 10 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.
11. Limitation of Remedies and Damages.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT:
(A) SUBJECT TO SUBSECTION (C) BELOW, NEITHER PARTY NOR ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, COSTS OF DELAY, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE;
(B) SUBJECT TO SUBSECTION (C) BELOW, EACH PARTY’S AND ITS AFFILIATES’ TOTAL LIABILITY TO THE OTHER PARTY AND ITS AFFILIATES FOR ALL CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE TO UPTAKE IN THE PRIOR 12 MONTHS UNDER THE APPLICABLE ORDER FORM(S) TO WHICH SUCH LIABILITY RELATES (“GENERAL LIABILITY CAP”);
(C) IN THE CASE OF “EXCLUDED CLAIMS,” EACH PARTY’S AND ITS AFFILIATES’ TOTAL LIABILITY TO THE OTHER PARTY AND ITS AFFILIATES FOR ALL CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) SHALL NOT EXCEED TWO TIMES (2X) THE AMOUNT ACTUALLY PAID OR PAYABLE TO UPTAKE IN THE PRIOR 12 MONTHS UNDER THE APPLICABLE ORDER FORM(S) TO WHICH SUCH LIABILITY RELATES (“EXCLUDED CLAIMS CAP”);
(D) IN NO EVENT SHALL EITHER PARTY (OR ITS RESPECTIVE AFFILIATES) BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE EXCLUDED CLAIMS CAP. SIMILARLY, THOSE CAPS SHALL NOT BE CUMULATIVE; IF A PARTY (AND/OR ITS AFFILIATES) HAS ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE SHALL NOT EXCEED THE EXCLUDED CLAIMS CAP;
(E) THE PARTIES AGREE THAT SECTION 11 WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE; AND
(F) THE APPLICABLE MONETARY CAPS SET FORTH IN SECTION 11 SHALL APPLY, ON AN AGGREGATED BASIS, ACROSS THIS AGREEMENT AND ANY AND ALL SEPARATE AGREEMENT(S) GOVERNING CUSTOMER’S USE OF THE PRODUCTS ENTERED INTO BETWEEN UPTAKE AND CUSTOMER.
12. General Terms
12.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in its entirety in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities to such party’s successor; and Uptake may assign this Agreement in its entirety to any Affiliate. Each party shall promptly provide notice of any such assignment. Any attempt to transfer or assign this Agreement except as expressly authorized under this section will be null and void.
12.2. Severability; Interpretation. If a court of competent jurisdiction holds any provision of this Agreement to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect. Section headings are inserted for convenience only and shall not affect interpretation of this Agreement.
12.3. Governing Law; Jurisdiction and Venue. This Agreement will be governed by the laws of the State of Illinois and the United States without regard to conflicts of law provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods; and the jurisdiction and venue for actions related to the subject matter hereof will be the state and federal courts located in Cook County, Illinois, and both parties hereby submit to the personal jurisdiction of such courts.
12.4. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth in this Agreement or at such other address as may be given in writing by either party to the other in accordance with this section and will be deemed to have been received by the addressee: (a) if given by hand, immediately upon receipt; (b) if given by overnight courier service, the first business day following dispatch; (c) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; or (d) if given by email, immediately upon receipt. Email notifications to Uptake shall be to contract_notices@uptake.com.
12.5. Amendments; Waivers. No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement, except as expressly set forth herein. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void, notwithstanding any language to the contrary therein, whether signed before or after this Agreement.
12.6. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Uptake may change and update the Product,, subject to the warranty in Section 8.1 (Product Warranty).
12.7. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
12.8. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited to acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, public health emergencies (including pandemics and epidemics), acts or orders of government, acts of terrorism, or war.
12.9. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent and neither party’s employees are eligible for any form or type of benefits, including, but not limited to, health, life or disability insurance, offered by the other party to its employees.
12.10. Export Control. Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (a) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (b) Customer will not (and will not permit any third parties to) access or use the Product in violation of any U.S. export embargo, prohibition or restriction, and (c) Customer will not submit to the Product any information that is controlled under the U.S. International Traffic in Arms Regulations.
12.11 Anti-Bribery; Anti-Corruption. Each party represents and warrants that it has not and shall not (and shall not permit any of its subsidiaries or affiliates or any of its or their respective directors, officers, managers, employees, independent contractors, representatives or agents to) promise, authorize or make any payment to, or otherwise contribute any item of value to, directly or indirectly, to any third party, including any Non-U.S. Official (as (as such term is defined in the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”)), in each case, in violation of the FCPA, the U.K. Bribery Act, or any other applicable anti-bribery or anti-corruption law.
12.12. Counterparts. The parties may execute any documents hereunder in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.
13. Definitions
"Affiliate" means an entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a party. As used in this definition, “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of more than fifty percent (50%) of the voting equity securities or other equivalent voting interests of an entity.
"Confidential Information" means all information that is identified as confidential at the time of disclosure by the Disclosing Party or reasonably should be known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. All Customer Data will be deemed Confidential Information of Customer without any marking or further designation. All Uptake Technology and the terms and conditions of this Agreement will be deemed Confidential Information of Uptake without any marking or further designation. Confidential Information shall not, however, include information that the Receiving Party can demonstrate: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (d) is independently developed by employees of the Receiving Party who had no access to such information.
"Contractor" means Customer’s independent contractors and consultants.
"Customer Data" means any data or data files of any type that are uploaded by or on behalf of Customer to the Product for storage in a data repository.
"Excluded Claims" means obligations and claims based on: (a) a party’s breach of its obligations in Section 5 (Confidentiality) (but excluding obligations and claims relating to Customer Data); (b) either party’s express obligations under Section 10 (Indemnification); (c) Customer’s payment obligations; (d) any claims arising from a party’s breach of Section 3 (Data Privacy) where such breach results in the unauthorized disclosure of Customer Data, or breach of Section 2.2 (Use Obligations); and/or (e) liability which, by law, cannot be limited (e.g., tort claims for gross negligence and intentional misconduct).
"Feedback" means any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any users of the Products relating to Uptake’s products or Products.
"Fees" means the fees payable by Customer to Uptake for the applicable Products.
"Order Form" means the Uptake ordering document governed by this Agreement that is signed by Uptake and Customer and specifies the Products procured by Customer, the Subscription Term and Fees.
"Product" means an Uptake software-as-a-service offering made generally available and ordered by or for Customer as set forth in an Order Form.
"Subscription Term" means the period of time during which Customer is authorized to access the relevant Product(s), as specified in the applicable Order Form.
"Taxes" means taxes, levies, duties or similar governmental assessments of any nature, including, for example, any sales, use, GST, value-added, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction, but excluding any taxes based on net income, property, or employees of Uptake.
"Uptake Technology" means the Product and any and all related and underlying technology and documentation in any Products; and any derivative works, modifications, or improvements of any of the foregoing, including any Feedback that may be incorporated therein.
"Usage Data" means usage and operations data in connection with the Customer’s use of the Product.
"User" means the persons designated and granted access to the Product by or on behalf of Customer, including, as applicable, any of its and its Affiliates’ Contractors.