Product

Terms of Use

Introduction

THESE TERMS (“TERMS”) GOVERN YOUR ACCESS TO AND USE OF THE PRODUCT (AS DEFINED BELOW), AND NOT TO ANY OTHER UPTAKE PRODUCT OR SERVICE. BY USING THE PRODUCT YOU AGREE TO COMPLY WITH THESE TERMS AND ACKNOWLEDGE THAT THIS IS A BINDING AND ENFORCEABLE LEGAL AGREEMENT BETWEEN YOU AND UPTAKE. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE PRODUCT.

IF YOU PLAN TO USE ANY OF THE PRODUCTS ON BEHALF OF A COMPANY OR OTHER ENTITY (“CUSTOMER”), YOU REPRESENT THAT YOU ARE THE EMPLOYEE OR AGENT OF SUCH COMPANY (OR OTHER ENTITY) AND YOU HAVE THE AUTHORITY TO ACCEPT ALL OF THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS ON BEHALF OF SUCH CUSTOMER.

1. Definitions

As used in these Terms:

  • MSA” means, if applicable, the Master Subscription Agreement (or equivalent document) between Uptake and the Customer who has authorized Your access to the Product(s) on Customer’s behalf.
  • Product” means (a) the Uptake product(s) identified on the MSA or in an Order; (b) any downloadable Uptake software including applications, extensions, plug-ins, custom agents, or integrations; or (c) any publicly-accessible product(s) that You are accessing on a trial basis.
  • Term” means (a) if your Product access has been authorized under an MSA, the term of such MSA (unless earlier terminated in accordance with these Terms); (b) the subscription term as set forth on an applicable order; or (c) if you are accessing a publicly available Product or a Product on a trial basis, the period during which You access and/or use the Product.
  • Uptake” means Uptake Technologies, Inc.

Youand “Your” means the individual accessing the Product.

2. Delivery, Access, and Use of the Product

Delivery of Product. Uptake is making the Product available to You pursuant to: (a) these Terms and the terms and conditions of the MSA; or (b) if no MSA exists, these Terms only. In the event of any inconsistency or conflict between these Terms and the MSA, the MSA shall control.

Updates. Any new or enhanced versions of the Product made available are subject to these Terms unless otherwise indicated.

Access to and Use of the Product. Uptake grants You a limited, non-transferable, non-exclusive, non-sublicensable, revocable license to access and use the Product during the Term only as permitted under these Terms. You may use the Product only in a commercially reasonable manner and for Customer’s or Your legitimate business purposes. You will adhere to all laws, rules, and regulations applicable to the access and use of the Product. 

Your Account. You will need an account to use the Product. To protect your account, keep your password confidential. You are responsible for the activity that happens on or through your account. If you learn of any unauthorized use of your password or account, notify Uptake as soon as possible.

Third-Party Terms. The Product may contain or otherwise make use of hardware, software, or other materials owned by third parties, including, without limitation, open source software (“Third-Party Products”). Third-Party Products may be licensed under additional license terms that accompany such Third-Party Products, and You acknowledge and agree to comply with these terms. You can find certain Third-Party Product terms in Exhibit A. Any hardware Third-Party Product is provided solely for Your use in connection with the Product and for no other purpose. 

Restrictions on Use. You agree that You will not: (a) make any part of the Product available to, or use any part of the Product for, anyone other than You and the 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 intellectual property or 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 expressly under these Terms; (h) copy or modify the Product or any part, feature, function or user interface thereof (including any content that is not owned by You or Customer), except as may be required for installation and operation into computer memory for the purpose of using the Product in accordance with these Terms and except as expressly permitted under these Terms; (i) frame or mirror any part of the Product, other than framing on Your own intranets or otherwise for Customer’s internal business purposes; (j) access any part of the Product in order to build a competitive product or service; or (k) reverse engineer the Product in whole or in part (to the extent such restriction is permitted by law).

Termination. If the Product is provided for a limited term subscription or trial period, these Terms will expire at the end of such Term. If the Product falls into clause (c) of the “Product” definition Uptake may terminate these Terms at any time for convenience. You may terminate these Terms at any time by ceasing use of the Product and deactivating your account. Your rights under these Terms terminated automatically without notice from Uptake if You breach these Terms. 

Upon termination of these Terms, You shall cease all use of the Product and destroy all copies of the Product.

3. Data and Confidentiality

Uptake Data. Uptake or its licensors owns all data, other than data provided by You to Uptake directly or through the Product (“Customer Data”) (or as defined in the MSA) and Your Personal Data, incorporated in or displayed in the Product (“Uptake Data”). Data that has been anonymized or aggregated such that Your identity is not ascertainable may be used to provide or improve the Product.

Customer Data. You retain ownership in Your Data. Customer retains ownership in Customer Data. You grant Uptake the right to store, use, modify, or display Your Data and Customer Data solely for the purposes of providing the Product to You.

Personal Data. In creating an account to access and use the Product, You may be required to provide personal information about Yourself (“Personal Data”), such as Your name, email address, and password. Uptake will process Your Personal Data as set forth in the Product’s Privacy Notice. Uptake will use commercially reasonable efforts to protect Your Personal Data as set forth in the Product’s Privacy Notice. You can access the Privacy Notice located at the login page.

Confidentiality. Each of You and Uptake will protect, and will not use or disclose except to the extent permitted expressly by these Terms, the other’s confidential information to which access is granted under these Terms. For clarity, Uptake’s confidential information includes all Uptake Data and all Uptake IP.

4. Intellectual Property

General. Subject to the limited rights expressly granted to You in these Terms, Uptake reserves all right, title, and interest (including intellectual property rights) in and to the Product, including any replacements, improvements, updates, enhancements, derivative works (including outputs), and other modifications to the same (collectively, “Uptake IP”).

If the Product includes PM Strategy Explorer, Uptake grants you a limited, non-transferable, non-exclusive, non-sublicensable license to: download and distribute copies of the PM Strategies You create using PM Strategy Explorer for Your or Customer’s internal business purposes only. You are permitted to create PM Strategies up to the number of PM Strategy Credits available to You.

No rights are granted to You other than those expressly granted in this Section and in Section 2.

5. Disclaimer of Warranties

No Warranties. The Product is provided AS IS, WHERE IS. Uptake makes no 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 TO YOU ARISING OUT OF THESE TERMS, INCLUDING FOR ANY LOSS OF PROFITS OR REVENUES, LOSS OF DATA OR INFORMATION, OR LOSS OF BUSINESS OPPORUNITY, OR FOR ANY DIRECT, 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 THESE TERMS OR ANY LIMITED REMEDY UNDER THESE TERMS.

6. Dispute Resolution

All claims and disputes arising under or relating to these Terms will be governed by and construed in accordance with the laws of the State of Illinois without resort to its conflict of law provisions. The parties agree that any action at law or in equity arising out of or relating to these Terms will be filed only in the state and federal courts located in Cook County, and the parties hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms. Uptake may, in its sole discretion (which you agree to submit to), choose to settle any disputes arising out of these Terms by binding arbitration in Chicago, Illinois. The arbitration shall be conducted on a confidential basis pursuant to the American Arbitration Association’s Commercial Arbitration Rules.

7. Other

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

Feedback. Should You choose to respond directly to Uptake with comments, questions, suggestions, ideas or the like relating to the Product (“Feedback”), such Feedback shall be deemed non-confidential and Uptake shall have no obligation to respond. In addition, by submitting Feedback, You grant 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. 

Notices and Information. You agree that Uptake may contact You to provide You with information and notices relating to Product, these Terms, or for other commercial reasons. 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]

Severability. If any portion of these Terms are found to be void or unenforceable, the remaining provisions of these Terms shall remain in full force and effect. 

Survival. Sections 3 through 7 shall survive any termination or expiration of these Terms.

Modification of Terms. Uptake may modify these Terms to, without limitation, reflect changes to applicable laws or to the Product. You should review these Terms regularly. We will use commercially reasonable efforts to notify You of modifications to these Terms (including by posting notice of changes in the Product). Changes to these Terms will not apply retroactively; however, Your continued use of the Product after being notified of such changes will constitute Your agreement to be bound by such changes. If you do not agree to changes to these Terms, You should discontinue Your use of the Product.

Exhibit A – Third-Party Product Terms

Hardware

If the MSA includes an Uptake Telematics Device manufactured by Geotab, the terms of the Geotab End User Agreement apply to Your use of the Product.

Software

If the Product includes maps with tile sets sourced from Carto, the Carto terms of use apply to Your use of the Product.

If the Product includes maps with tile sets sourced from OpenStreetMap, the OpenStreetMap terms of use apply to Your use of the Product.

For a non-exhaustive list of open source software components that may be incorporated into or used with the Product, see Uptake’s open source notice.