Effective Date: 09/01/2022
These Terms of Service (“Agreement”) is by and between 1up (“Service Provider”) and the customer identified in the Order Form among the parties (“Order Form”). This Agreement governs the Customer’s access and use of the Service Provider’s software-as-a-service platform and related applications and professional services that pull, track, and manage information about competitors of the Customer (the “Service Provider Solution”). Certain features of the Service Provider Solution may be subject to additional guidelines, terms, or rules, which will be posted on 1up’s website (1up.ai). All such additional terms, guidelines, and rules are incorporated by reference into these Agreement.
1. PROVISION OF SERVICES
- Access. Subject to the terms and conditions of this Agreement and on or as soon as reasonably practicable after the Effective Date, Service Provider will allow Customer and its authorized employees and independent contractors (“Authorized User”) to access the Service Provider Solution. Customer will prevent unauthorized access to, or use of, the Service Provider Solution, and notify Service Provider promptly of any such unauthorized use known to Customer. Customer is responsible for managing its Authorized Users’ access to the Service Provider Solution, including by immediately notifying the Service Provider if someone’s status as an Authorized User has ceased or otherwise should be revoked.
- License Grant. Subject to the terms and conditions of this Agreement, Service Provider grants to Customer a non-exclusive, non-transferable (except as permitted under Section 8.4) license during the Term (as defined below) to access and use the Service Provider Solution (and any reports provided in connection therewith), in all instances solely for Customer’s internal business purposes. Customer may only permit Authorized Users to access and use the features and functions of the Service Provider Solution under this Agreement. All rights not expressly granted to Customer in this Agreement are reserved by Service Provider.
- Ownership. The Service Provider Solution, together with any related software, technology, algorithms, processes, designs, user interfaces and any intellectual property rights related thereto or embodied therein, as well as any improvements or modifications to the foregoing, are the exclusive property and Confidential Information of Service Provider.
- Restrictions. Customer will not, and will not permit any other party to: (a) allow any third party to access the Service Provider Solution; (b) modify, adapt, alter or translate the Service Provider Solution; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Service Provider Solution for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Service Provider Solution, except as permitted by law; (e) interfere in any manner with the operation of the Service Provider Solution; (f) modify, copy or make derivative works based on any part of the Service Provider Solution; (g) access or use the Service Provider Solution to build, improve or enhance a similar or competitive product or service; (h) attempt to access the Service Provider Solution through any unapproved interface; or (i) otherwise use the Service Provider Solution in any manner inconsistent with applicable law.
- Third Party Content. The Service Provider Solution may include content or information pulled directly from or derived from third-party sources, including websites, social media platforms, news sources and advertisements that are not owned, created by or under the control of the Service Provider (collectively, “Third Party Content”). Notwithstanding anything to the contrary in this Agreement, Customer acknowledges that the Service Provider does not evaluate or vet the Third Party Content for accuracy. Nor does Service Provider assume any other responsibility for the Third Party Content or Customer’s use thereof. Customer should use all Third Party Content at its own risk and discretion. Customer expressly agrees to make all necessary or appropriate investigations before using or relying on such Third Party Content to enter into any transactions or reach any decisions.
2. CUSTOMER INFORMATION
- Customer Responsibility. Any data and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use in connection with the Services, including without limitation any such personally identifiable information, is the exclusive property of Customer (“Customer Information”). If Customer wishes Service Provider to pull excerpted content from Customer’s Slack ChatBots that are relevant to the scope of the services, such content also will be Customer Information hereunder. Customer is solely responsible for the accuracy, quality and legality of Customer Information. Customer will obtain all consents and permissions needed for Service Provider to use the Customer Information to provide the Services. Customer and its Authorized Users will have access to the Customer Information and will be responsible for all changes to or deletions of the Customer Information and the security of all passwords and other access codes required in order to access the Service Provider Solution. Customer has the responsibility to employ appropriate security measures to protect the Customer Information, to comply with applicable laws in connection with the use of the Services and Customer Information. Customer acknowledges that, to the extent that Customer Information is integrated with third party software offerings, the security of such software systems is the responsibility of Customer or such third party vendor. Service Provider is solely responsible for its own strategic, operational and other business and legal decisions with regard to its use of the services, and Service Provider shall bear no responsibility or liability for any actions or inactions by Customer or any third party acting on its behalf.
- Service Provider Responsibility. Service Provider shall comply with all applicable laws in connection with the provision of the Services, including as relates to its processing of any Customer Information. Service Provider will maintain reasonable physical, administrative and technical security measures designed to ensure the availability, integrity and confidentiality of the Customer Information.
- Fees. In consideration for the access rights granted to Customer and the Services performed by Service Provider under this Agreement, Service Provider will be paid the fees as set forth in the Order Form (“Fees”). Except as otherwise agreed upon, payment obligations are non-cancelable and all amounts paid are nonrefundable except as otherwise agreed by Service Provider.
- Payments. Except as otherwise provided in the Order Form, all Fees are billed at the beginning of the Term, and due and payable within thirty (30) days of the date of the invoice. Service Provider reserves the right (in addition to any other rights or remedies Service Provider may have) to discontinue the Service Provider Solution and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full.
- Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. For the avoidance of doubt, Customer Information will be considered Confidential Information of Customer.
- Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a reasonable need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Service Provider). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care.
- Exceptions. The confidentiality obligations set forth in Sections 4.1 and 4.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) was independently developed by employees and contractors of the Receiving Party. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
- Feedback & Aggregate Data. Both during and after the Term, Service Provider may (a) use any suggestions, enhancement requests, recommendations or other feedback obtained in the course of providing the Services or otherwise provided by Customer, including Authorized Users, and (b) collect, use, and analyze data provided to Service Provider or otherwise arising during the use of the Services, in order to improve and enhance the Service Provider Solution and the Services and for other development, diagnostic and corrective purposes for those or other offerings of Service Provider, and solely to the extent such data is aggregated or otherwise de-identified in a manner that does not identify Customer, share and commercialize such data.
5. TERM AND TERMINATION
- Term. Notwithstanding anything to the contrary in the Order Form, this Agreement will begin on the Effective Date and continue in full force and effect until the date set forth in the Order Form, unless earlier terminated in accordance with the Agreement (the “Term”).
- Termination for Convenience. Either party may terminate this Agreement for convenience on sixty (60) days’ prior written notice to the other party.
- Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
- Effect of Termination. Upon termination or expiration of this Agreement for any reason, Customer’s use of and rights to the Services and Service Provider Solution shall cease and any amounts owed to Service Provider under this Agreement will become immediately due and payable. Sections 1.3, 1.4, 1.5, 2.4, 3, 4, 5.3, 6, 7, and 8 will survive expiration or termination of this Agreement.
6. WARRANTY DISCLAIMERS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND SERVICE PROVIDER SOLUTION ARE PROVIDED “AS IS,” AND SERVICE PROVIDER MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. SERVICE PROVIDER DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES SERVICE PROVIDER GUARANTEE ANY SPECIFIC RESULTS IN CONNECTION WITH USE OF THE SERVICE. SERVICE PROVIDER SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ACT OR OMISSION OF ANY THIRD PARTY OR ITS PRODUCTS OR SERVICES.
7. LIMITATION OF LIABILITY
- Types of Damages. TO THE FULLEST EXTEND PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY OR PROCUREMENT OF SUBSTITUTE SERVICES, ANY BUSINESS INTERRUPTION, IMPACT OF LOST OR DAMAGED DATA OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
- Amount of Damages. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT OR ANY LIABILITIES ARISING THEREUNDER WILL NOT EXCEED THE FEES PAID TO SERVICE PROVIDER IN CONNECTION WITH THE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL SERVICE PROVIDER HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY RELATED TO THE ACTS OR OMISSIONS OF ANY THIRD PARTY. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
- Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 7 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
- Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The Parties hereby expressly consent to the exclusive personal jurisdiction and venue in the state and federal courts for New York, New York for any lawsuit arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
- Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
- Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services.
- Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, telecommunication or internet delays or failures, fire, earthquake, flood, pandemic or epidemic, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
- Independent Contractors. Customer’s relationship to Service Provider is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Service Provider.
- Notices. All notices required or permitted under this agreement must be delivered in writing, if to Service Provider, by emailing email@example.com and if to Customer by emailing the Customer Point of Contact email address listed in the Order Form, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed in Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service.
- Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters.