UPTIMELY INCORPORATED hereby licenses to you one electronic copy of the computer program you are about to install, or services accessed via a web browser, and related documentation (the "Software") for each user license purchased. UPTIMELY INCORPORATED retains all right, title and interest in and to the Software. The Software and all parts thereof are the subject matter of various proprietary rights, including without limitation copyrights, trade secrets, patents and other similar intellectual and industrial property rights ("Proprietary Rights"). This License permits you to use the Software and to make copies and install the Software as necessary in unmodified form for your internal use of the Software in accordance with this Agreement. You may not, however, sell or derive any profit from such distribution or installation. No license, right or interest in any trademark, trade name or service mark of UPTIMELY INCORPORATED or any third party is granted under this License. You acknowledge that this License in no way shall be construed to provide an express or implied license to use, modify or improve any of the content of the Software, including without limitation, or any works, inventions, discoveries, technology or other items which are the subject matter of UPTIMELY INCORPORATED's Proprietary Rights or otherwise to use or exploit the Software or the Proprietary Rights in any matter not expressly permitted herein. UPTIMELY acknowledges and agrees that you may use the Software to provide access to the Software (including via a website or other means, such as the use of our API) to your customers and end-users of data related to the performance of your commercially available services and products for which you charge a fee; provided, however (a) any such access does not exceed your total number of authorized users of the Software; and (b) UPTIMELY INCORPORATED shall not be liable to you or any such customers or end-users for any such use.
You may not attempt to create or derive any of the source code or other technology or data within the Software by disassembly, reverse engineering or any other method, or otherwise reduce the Software to a human-perceivable form. You may not modify or translate any part of the Software. You may not use, disclose, distribute, in whole or in part, nor rent, lease or lend the Software without the prior written authorization of UPTIMELY INCORPORATED. You agree to provide notice to UPTIMELY INCORPORATED immediately after learning of or having reason to suspect a breach of any of the provisions set forth in this License.
User agrees not to conduct any security testing or penetration testing of the software, its components or associated systems, without the prior written consent of UPTIMELY INCORPORATED, and violation of this provision shall constitute a material breach of this agreement.
3. Termination and Term
This Agreement shall become effective upon your indication of acceptance by electronically indicating acceptance and installing the Software (“Effective Date”). You may terminate this Agreement within 10 days of the Effective date if you disagree with the terms of this Agreement. This Agreement shall remain in effect until Termination. If you terminate the Agreement other than for cause as defined below before the end of a Term then at the time of termination you agree to pay all remaining monies owed for entire remaining period of the contract term you selected electronically, either monthly (“Monthly”) recurring or yearly (“Yearly”) recurring during the acceptance and subscription selection stage. The Yearly recurring option may have multi-yearly (“Multi-Yearly”) discounts available, therefore the Yearly recurring term would be defined as the total amount of years you selected (if not selected or specified, the default Yearly recurring plan is for one (1) year). In addition, for either Monthly or Yearly recurring plans, Client must provide notice of Termination at least 6 days prior to the next recurring term. For avoidance of doubt, the selection subscription stage is wherein the Client chooses the level of subscription that the Client desires along with the recurring payment term (“Payment Term”). The Payment Term selected by Client sets and equates to the agreement term (“Agreement Term”) length for this Agreement, which automatically extends Monthly, Yearly or Multi-Yearly unless cancelled as per this Section 3.
As long as you have made timely payments and are not in breach of the Agreement, you may terminate for cause if UPTIMELY INCORPORATED fails to perform its duties under the Agreement within 30 days of your notice to UPTIMELY INCORPORATED that it is in breach of a material term. UPTIMELY INCORPORATED may terminate this Agreement for cause if you fail to make timely payments within 10 days of notice of delinquency by UPTIMELY INCORPORATED. UPTIMELY INCORPORATED may also disable the Software temporarily in the case of nonpayment, which shall not be considered a termination by UPTIMELY INCORPORATED. Charges will still accrue even if your service is temporarily suspended for non-payment. UPTIMELY INCORPORATED may also terminate this Agreement if you fail to comply with your duties under the Agreement within 30 days of notice to you that you are in breach. UPTIMELY INCORPORATED may also terminate the Agreement immediately if you violate its intellectual property rights or seek bankruptcy protection or similar relief from creditors, or if bankruptcy proceedings are imminent or initiated by any other party. In any termination for cause, all payments owed shall be immediately due and payable.
Upon termination, you must destroy (or permanently uninstall) all copies of the Software and remove all UPTIMELY INCORPORATED related HTML, Java script(s), and web code inclusions of any type (i.e. IFRAME, etc.) relating to UPTIMELY INCORPORATED entirely from all applicable websites.
4. Disclaimer of Warranties
a. UPTIMELY INCORPORATED DISCLAIMS AND YOU HEREBY WAIVE ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR INTENDED USE, WARRANTIES AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS, ANY WARRANTY OF COMPATIBILITY BETWEEN THE SOFTWARE AND YOUR EQUIPMENT OR SOFTWARE, OR ANY LIABILITY IN NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE, WITH RESPECT TO UPTIMELY INCORPORATED. YOU AGREE THAT UPTIMELY INCORPORATED SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, EVEN IF ADVISED OF THE RISK OF SUCH DAMAGES IN ADVANCE.
b. UPTIMELY INCORPORATED shall not be liable to you nor deemed to be in default of this Agreement, on account of any delays, errors, malfunctions, compatibility problems or breakdowns with respect to the Software, unless such delay, error, malfunction or breakdown results solely from the gross negligence or willful misconduct of UPTIMELY INCORPORATED.
c. You acknowledge that the installation or use of the Software on your communications hardware (including peripherals) or software may result in loss of or damage to your hardware, software or data. You agree to take all reasonable precautions to prevent such loss and damage, including copying data prior to installation and other reasonable and customary measures, and adherence to manufacturer’s instructions. You further agree to release and hold UPTIMELY INCORPORATED and its past and present directors, affiliates, partners, officers, employees, agents and contractors harmless from and against any losses, damages, liabilities, suits or fines caused by or arising from the installation or use of the Software or the communications hardware (including peripherals) or any other similar hardware or software utilized to permit access to the Software.
Each party shall, at its expense, indemnify, defend and hold harmless the other party, its past and present directors, affiliates, partners, officers, employees and agents, from and against all liabilities, damages and expenses, and claims for damages, suits, proceedings, recoveries, judgments or executions (including but not limited to litigation costs, expenses, and reasonable attorneys’ fees) finally awarded and arising out of or in connection with: (i) any claim the indemnifying party’s system or data (including, without limitation, the Application, hardware, software, peripherals, technical specifications, configurations or addresses), in the form as delivered, infringes any third party patent, copyright, trademark or other property right. This indemnification and hold harmless only applies to systems and data provided, and shall not apply to particularized or tailored uses of such systems or data that cause the systems or data to infringe only when used in a particular manner.
6. Limitation on Liability
UPTIMELY INCORPORATED’s total cumulative liability in connection with this Agreement and the Software, whether in contract or tort or otherwise, will not exceed the amount of License Fees paid to UPTIMELY INCORPORATED for the most recent one-year period (note that free accounts, those that do not include fees (“Free Version”) provide $0 (zero) dollars in liability) prior to the event giving rise to such liability.
If the disclaimer of warranty, indemnification, and limitation of liability provided in Section 4 and Section 5 and Section 6 cannot be given local legal effect according to their terms, reviewing courts shall apply local law that most closely approximates an absolute waiver of all civil liability in connection with the Software and Services provided, unless a warranty or assumption of liability accompanies usage of the Software and Services in return for a fee.
7. Controlling Law and Interpretation
This License shall be governed by and construed in accordance with the substantive laws of the State of Maryland, notwithstanding the conflicts of law provisions of that state or any other jurisdiction. All disputes arising out of this license shall be subject to the exclusive jurisdiction of federal and state courts located in Anne Arundel County, Maryland. If any part of this Agreement is deemed unenforceable for any reason, that provision and the remainder of the Agreement shall be interpreted to the greatest extent allowable by law to give the provision and the Agreement as a whole the fullest effect intended under the law.
8. Price and Payment
This section is relevant for any Client not currently utilizing the initial free 30 day trial or the Free Version of UPTIMELY INCORPORATED’S software and services. Any usage by Client outside the initial 30 free day trial or Free Version will constitute Client as a (“Paying Subscriber”). Paying Subscribers have the option to subscribe to Monthly or Yearly recurring terms.
Monthly Paying Subscribers shall pay to UPTIMELY INCORPORATED monthly in advance the subscribed to set license and service fees pursuant to Schedule 1 of this Agreement. Client agrees and authorizes UPTIMELY INCORPORATED or its agent to automatically bill Client’s credit card on a continual basis each, 3-5 days in advance prior to the original subscription start day of the next Monthly billing period, per the set license and service level fees pursuant to this Agreement.
Yearly Paying Subscribers shall pay to UPTIMELY INCORPORATED yearly in advance the subscribed to set license and service fees pursuant to Schedule 1 of this Agreement. Client agrees and authorizes UPTIMELY INCORPORATED or its agent to automatically bill Client’s credit card on a continual basis each, 3-5 days in advance prior to the original subscription start day of the next Yearly billing period, per the set license and service level fees pursuant to this Agreement.
Multi-Yearly Paying Subscribers shall pay to UPTIMELY INCORPORATED multi-yearly in advance the subscribed to set license and service fees pursuant to Schedule 1 of this Agreement. Client agrees and authorizes UPTIMELY INCORPORATED or its agent to automatically bill Client’s credit card on a continual basis each, 3-5 days in advance prior to the original subscription start day of the next Multi-Yearly billing period, per the set license and service level fees pursuant to this Agreement.
Since each upgrade to user count, plan change or feature set will renew the Monthly, Yearly or Multi-Yearly term commitment and billing cycle dates for the entire Agreement, any prorated unused credits due from the previous billing term will be applied as a credit toward the renewed Agreement balance that may be due. Discounts for Yearly and Multi-Yearly or any package where discounts were provided based on length of term will be lost if downgrading in the middle of a Term. To receive volume pricing, upon each upgrade, Client must keep total number of licenses, plan package or feature set for the agreed to Term before a downgrade is permitted. This requirement is not necessary if discounts are waived by customer. If minimum requirements were negotiated to obtain volume pricing and stated in invoice terms, then those agreed upon minimum requirements must be maintained upon renewal to continue receiving pricing incentives. Unless the volume pricing or pricing discounts are renegotiated, discounts may expire after any offered promotional period.
UPTIMELY INCORPORATED may make arrangements to invoice Client Monthly, Yearly or Multi-Yearly for agreements valued over $1,000 monthly, in advance, the set license fees pursuant to this Agreement. Failure of UPTIMELY INCORPORATED to issue any invoice or bill shall not relieve Client of the obligation to pay for any charge owed UPTIMELY INCORPORATED pursuant to this Agreement. If UPTIMELY INCORPORATED invoices Client for the Monthly, Yearly or Multi-Yearly set license fees, Client shall pay all fees and other charges within fifteen (15) days of the date of each invoice unless other terms have been negotiated in advance and are clearly stated on the invoice. Invoices shall be dated no earlier than the first day of the month before the recurring term for which the invoice applies. Provided that the invoice is timely received, in the event that Client fails to pay within fifteen (15) days of an Invoice, UPTIMELY INCORPORATED may levy a late payment charge computed at the rate of 1 1/2% per month on the outstanding balance due hereunder from any month or fraction thereof that such payment is in default.
Client shall pay all sales, use, personal property, excise, license and franchise taxes as well as any other similar fees, charges or assessments which arise as a result of this Agreement or which may be imposed in connection with access to the Application. UPTIMELY INCORPORATED reserves the right to increase any charge to Client under this Agreement once each term upon not less than thirty (30) days prior written notice to Client. Outside of Client initiated upgrades, each such increase shall be limited to five (5%). Client will not set-off or offset against UPTIMELY INCORPORATED’s invoices amounts that Client claims are due to it. Client will bring any claims or causes of action it may have in a separate action and waives any rights it may have to offset, set-off, or withhold payment for Application licenses delivered by UPTIMELY INCORPORATED.
If you have questions about charges to an account, you should contact UPTIMELY INCORPORATED at firstname.lastname@example.org or by using the corporate headquarter address of P.O. Box 1411 Columbia, MD 21044. All charges are considered valid unless Client disputes the charge in writing within 30 days of the billing date. No adjustments will be made for charges that are more than 30 days old.
9. Technical Standard Support Service Level
UPTIMELY INCORPORATED will provide either one or more of the following forms of technical support to Client’s User Licensees from 9 a.m. to 8 p.m. Eastern Standard Time (EST), Monday-Friday (“Weekdays”) of each week of this Agreement: Phone, E-mail or Chat. UPTIMELY INCORPORATED will provide on call support with one hour or less response time 24 hours per day if client subscribes and elected the premium support. In addition, UPTIMELY INCORPORATED will respond to any electronic mail queries within 24 hours of receipt by UPTIMELY INCORPORATED during regular business days.
Client acknowledges that UPTIMELY INCORPORATED does not agree to provide, and will not provide, any “help desk” assistance or similar user or technical support to Client’s customers with regard to the Application or Services.
Client agrees that it will notify its customers that UPTIMELY INCORPORATED does not provide such support, and Client shall be solely responsible for all such support for the benefit of its customers.
UPTIMELY INCORPORATED has established set maintenance windows on Monday and Friday mornings between the hours of 2 a.m. and 6 a.m. EST (“Pre-established Maintenance Window”). During the Pre-established Maintenance Window, UPTIMELY INCORPORATED reserves the right to take down a Client’s server(s) in order to conduct routine maintenance checks to both software and hardware. If a Client’s server(s) will be down for more than two (2) minutes within the Pre-established Maintenance Window, UPTIMELY INCORPORATED will advise Client of such prior to any scheduled maintenance downtime. UPTIMELY INCORPORATED will not be responsible for damages or costs incurred by Client, if any, for scheduled down time during the Pre-established Maintenance Window. UPTIMELY INCORPORATED reserves the right to change the Pre-established Maintenance Window upon prior notice to Client.
All notices, requests, demands or other communications hereunder shall be in writing, hand delivered, sent by first class mail, overnight mail, or facsimile (upon electronic confirmation that the transmission was received) and shall be deemed to have been given when received at the following addresses:
If to UPTIMELY:
P.O. Box 1411
If to Client:
To the Address of Client as set forth on page 1 of this Agreement
Any notice provided by facsimile which is received after 4:00 p.m. local time of the receiving party shall be deemed received the following business day. A party may change its addresses for notice on not less than ten (10) business days’ prior written notice to the other party.
11. Confidential Information.
a. Confidential Information supplied by one party to another pursuant to this Agreement is for the exclusive use of the receiving party and shall not be disclosed or made available to any other person, firm, corporation or governmental entity in any form or manner whatsoever; provided, however, that in the event Confidential Information is subpoenaed or otherwise requested or demanded by any court or governmental authority, the receiving party shall give written notice to the disclosing party prior to furnishing the same and shall, at the request of the disclosing party, exercise reasonable business efforts in cooperation and at the sole expense of the disclosing party, to quash or limit such request, demand and/or subpoena. The receiving party’s obligations include treating Confidential Information with at least the concern and protective measures accorded any trade secrets, proprietary or confidential information and materials of the receiving party. Nothing herein shall be construed to require the disclosure of Confidential Information to the receiving party, or to require the receiving party to accept Confidential Information.
b. Upon any termination of the Agreement, Client agrees to deliver to UPTIMELY INCORPORATED all documentation, materials, information, Equipment, technical configurations and specifications supplied by UPTIMELY INCORPORATED and shall also certify in writing that all copies have been returned to UPTIMELY INCORPORATED.
c. Client understands that the information it has access to from UPTIMELY INCORPORATED and through the Application is confidential and proprietary and includes valuable trade secrets of UPTIMELY INCORPORATED and that UPTIMELY INCORPORATED would suffer irreparable harm if such confidential or propriety information or trade secrets are directly or indirectly (i) used by Client for any purpose other than those specifically set forth herein, or (ii) disclosed to any third party including affiliates of Client which may operate as software developers in direct or indirect competition with UPTIMELY INCORPORATED. Accordingly, Client agrees not to use the information for other purposes, disclose, or allow access to such information to any third party, except for consultants or contractors with a need to know and who has signed a non-disclosure agreement with terms comparable to this Confidential Information section. Client agrees that a breach of these conditions shall be grounds sufficient for immediate termination of, or suspension of, services under this Agreement, inhibiting Client’s access to and use of the Application, and appropriate legal relief. Upon termination of this Agreement for any cause or reason, Client agrees to deliver to UPTIMELY INCORPORATED all materials or information supplied pertaining to the Application and shall also confirm that all copies of such material have been returned to UPTIMELY INCORPORATED or destroyed.
d. UPTIMELY INCORPORATED understands that the information it has access to through the right of access to Client’s facilities is of a confidential and proprietary nature, and UPTIMELY INCORPORATED may hereinafter have access to other information of Client which is of a confidential and proprietary nature, and could result in irreparable harm to Client if any such confidential or proprietary information is directly or indirectly (i) used by UPTIMELY INCORPORATED for any purpose other than as specifically set forth herein, or (ii) disclosed to any third party. Accordingly, UPTIMELY INCORPORATED agrees not to use the information for other purposes, disclose or allow access to such information to any third party except for consultants or contractors with a need to know and who has signed a non-disclosure agreement with terms comparable to this Confidential Information section. UPTIMELY INCORPORATED agrees that a breach of these conditions shall be grounds sufficient for immediate termination of this Agreement, and legal as well as injunctive relief. Upon termination of this Agreement for any cause or reason, UPTIMELY INCORPORATED agrees to deliver to Client all materials or information supplied pertaining to Client and shall also confirm that all copies of such material have been returned to Client or destroyed.
e. UPTIMELY INCORPORATED and Client agree that any and all non-disclosure and use covenants contained herein shall survive for a period of five years any termination of this Agreement.
f. In the event of termination, Client shall remove all scripts and/or code placed on Clients’ website in order to use UPTIMELY INCORPORATED service.
UPTIMELY INCORPORATED retains the right, in its sole discretion, to enhance, modify or alter the operation of the Application at any time and further retains the right to make such enhancements, modifications or alterations generally available to other clients of UPTIMELY INCORPORATED.
Title and full and complete ownership rights to all UPTIMELY INCORPORATED owned or developed software (including source and object code) and other technical specifications, addresses or configurations (collectively the “Software”) associated with or contained in the Application or used by UPTIMELY INCORPORATED in connection with this Agreement shall remain with UPTIMELY INCORPORATED. Client understands and agrees that the Software is UPTIMELY INCORPORATED’s trade secret, proprietary information, and confidential information whether any portion thereof is or may be validly copyrighted or patented. Any Software provided to Client and its Authorized Licensees is provided by license only and such license is limited to the right to use such Software during the term of this Agreement only according to guidelines established by UPTIMELY INCORPORATED from time to time. Such Software shall be utilized by Client and its Authorized Licensees only in accordance with this Agreement and shall not be copied, duplicated, reproduced, manufactured, de-compiled, reverse engineered, incorporated into any software (including any source code, object code or algorithms), modified or disclosed in any form by any media to any other person or party. Upon termination of this Agreement, or upon request by UPTIMELY INCORPORATED, Client shall immediately return to UPTIMELY INCORPORATED any Software provided by UPTIMELY INCORPORATED. Nothing herein shall be construed to require UPTIMELY INCORPORATED to deliver any Software to Client or to require Client to accept such Software.
14. No Endorsement
Nothing herein shall be construed to constitute an endorsement by UPTIMELY INCORPORATED of any product, software, and device or service marketed, sold or provided by Client. Client shall not be entitled to use the name “UPTIMELY INCORPORATED” or any UPTIMELY INCORPORATED product mark or logo in any fashion, except as otherwise agreed in writing.
All media releases, public announcements, and public disclosures by either party relating to this Agreement or the subject matter of this Agreement will be submitted to the other party for review prior to any release, other than listing Client as a customer on “Customer” page of UPTIMELY INCORPORATED website at http://www.statuscast.com, various third party social media websites (such as Twitter, LinkedIn, or Facebook) or tradeshow material.
16. General Provisions
a. Nothing in this Agreement is intended or shall be construed to create or establish an agency, partnership, or joint venture relationship between the parties.
b. The captions in this Agreement are for convenience only and in no way define, limit, or enlarge the scope of this Agreement or any of the provisions therein. Capitalized terms shall have the meanings assigned in this Agreement.
c. No waiver by either party of any provision or any breach of this Agreement constitutes a waiver of any other provision or breach of this Agreement and no waiver shall be effective unless made in writing. The right of either party to require strict performance and observance of any obligations hereunder shall not be affected in any way by any previous waiver, forbearance or course of dealing.
d. Except for Client’s obligation to make payments hereunder, neither party will be deemed in default of this Agreement as a result of a delay in performance or failure to perform its obligations caused by acts of God or governmental authority, strikes or labor disputes, fire, acts of war, failure of third party suppliers, or for any other cause beyond the control of that party.
e. Client shall not sell, assign, license, sub-license, franchise or otherwise convey in whole or in part to any third party this Agreement or the services provided hereunder without the prior written consent of UPTIMELY INCORPORATED, except that Client may freely assign all rights, title, interest and obligations under this Agreement to any taker of all, or substantially all of Client’s assets.
f. This is a non-exclusive agreement. Similar agreements may be entered into by either party with any other person.
g. This Agreement shall be governed by, construed, interpreted and enforced according to the laws of the State of Maryland and of the United States of America, without regard to principles of conflict of laws and rules. Each party hereby consents to the exclusive jurisdiction of the courts of the State of Maryland and United States Federal Courts located in Maryland to resolve any dispute arising out of this Agreement.
h. Neither party shall make any use of the other party’s company name, logo, trademarks or service marks, other than those uses set forth in this Agreement, without the prior written consent of the party.
i. In the event that any material provision of this Agreement is determined to be invalid, unenforceable, illegal or void, the parties agree that unless such provision materially affects the intent and purpose of this Agreement, such invalidity, illegality, voidability or unenforceability shall not affect the validity of this Agreement nor the remaining provisions herein.
j. This Agreement constitutes the final and complete understanding and agreement between the parties concerning the subject matter hereof. Any prior agreements, understandings, negotiations or communications written or otherwise are deemed superseded by this Agreement. This Agreement may be modified only by a further written agreement executed by an authorized representative of the parties hereto. This Agreement may not be modified or waived orally and may be modified only in writing singed by duly authorized representatives of each party.
k. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term.