Enterprise Terms of Service
Last Modified: November 21, 2021
Please review these terms (the “Agreement”) carefully. Wherever used in this Agreement, “you”, “your”, “Customer”, and similar terms mean the person or legal entity accessing or using the Enterprise Services. For the avoidance of doubt, if you are accessing and using the Enterprise Services on behalf of a company (such as your employer) or other legal entity, “you”, “your” or “Customer” means the company or other legal entity that you are using the Services on behalf of.
By purchasing, accessing or using the Enterprise Services offered by UpContent Inc. (“UpContent”, “we”, “us”, or “our” ), you are confirming that you have read, understand and accept this Agreement. This Agreement can be updated from time to time in accordance with Section 10.5 below. You are responsible for regularly reviewing the most current version of this Agreement, which is published at: https://www.upcontent.com/enterprise-terms. When we change this Agreement, we will update the “Last Modified” date above.
This Agreement applies only to the Enterprise Services, as further defined below. The terms that apply to the use of UpContent’s publicly available websites or use of other services (such as UpContent’s Free, Sharer, Curator, Engager, and Orchestrator plans) (the “Retail Services”) are available at https://www.upcontent.com/terms-of-service.
By purchasing, accessing or using the Enterprise Services, you confirm that:
A. You will only use our Enterprise Services for business and professional reasons (the Enterprise Services are not for use by consumers and may only be used for business and professional purposes);
B. You accept and will comply with this Agreement; and
C. You are responsible for anyone that uses our Enterprise Services through your account (“Authorized Users”), which may include your employees, consultants or contractors, or the employees, consultants or contractors of your Affiliates. If you are a marketing agency or similar organization and provide access to our Enterprise Services to any of your clients or their employees, they are also your Authorized Users.
1. UpContent Terminology
(a) We use capitalization for terms that have a special meaning in this Agreement. While some terms are defined elsewhere, this section sets out the definitions of some key terms.
“Affiliates” are companies or entities that either you or we own, that own either you or us or that have the same owner or corporate parent as either you or us, as applicable.
An “Authorization Form” is a document that we issue and that is signed or otherwise agreed to by you, which describes the Enterprise Services and/or Partner Services you are purchasing, including the fees, the quantities purchased, and any other details specifically related to those services.
“Content” is a generic term that means all information and data (such as text, images, photos, videos, audio and documents) in any format that is uploaded to, downloaded from or appears on our Enterprise Services.
“Customer Content” is Content that you or your Authorized Users provide to us or upload to our Enterprise Services.
“Third Party Materials” You may be able to access or use third-party resources, content or information (“Third Party Materials”) via UpContent. By using UpContent to find material on the Internet, you instruct UpContent to present portions of the data sources that you have selected. You acknowledge sole responsibility for and assume all risk arising from your access to or use of any such Third Party Materials and UpContent disclaims any liability that you may incur arising from your access to or use of such Third Party Materials or User Content (defined below) via UpContent. You acknowledge and agree that UpContent: (a) is not responsible for the availability or accuracy of such Third Party Materials or the products or services on or available from such Third Party Materials; (b) has no liability to you or any third party for any harm, injuries or losses suffered as a result of your access to or use of such Third Party Materials; and (c) does not make any promises to remove Third-Party Materials from being accessed through the Services. Your ability to access or link to Third-Party Materials does not imply any endorsement by UpContent of Third Party Materials.
“Third-Party Services” are services that are not provided by UpContent that you may access or use in connection with our Enterprise Services. They include “Partner Services”, which are services offered by third-parties and resold by UpContent as an authorized reseller
“Enterprise Services” means services included in UpContent’s Enterprise plans and any other UpContent products or services made available to you through an Authorization Form, but does not include: i) UpContent’s Retail Services; or ii) any Third-Party Services.
(b) Headings used in this Agreement are for convenience of reference only and do not affect the construction or interpretation of this Agreement.
2. UpContent Responsibilites
2.1 Enterprise Services. During the Term, subject to the terms and conditions of this Agreement, we will make the Enterprise Services available to you in accordance with the applicable Authorization Form.
2.2 Updates. Our Enterprise Services evolve constantly. So long as we do not breach the warranty set out in Section 9.2(a), we may change our Enterprise Services (such as by changing, adding or removing features) at any time, for any reason, and may or may not provide notice of those changes to you.
3. Content & Third-Party Services
3.1 Third-Party Content. We are not responsible for Content provided by others, including Content from Third-Party Services. You and anyone else who accesses our Enterprise Services may access Content that might be unlawful, offensive, harmful, inaccurate or otherwise inappropriate. We will not be liable to you or any third party for Content provided by others.
3.2 Third-Party Services. If you access or purchase a Third-Party Service, you do so at your own risk. Your relationship with the Third-Party Service provider is an agreement between you and them. If you access or enable a Third-Party Service, you grant them permission to access or otherwise process your data as required for the operation of the Third-Party Services. We will not be liable for disclosure, use, changes to, or deletion of your data or for losses or damages you may suffer from access to your data by a Third-Party Service. WE MAKE NO REPRESENTATION AND WILL HAVE NO LIABILITY OR OBLIGATION WHATSOEVER IN RELATION TO THE CONTENT OR USE OF, OR CORRESPONDENCE, AGREEMENTS OR TRANSACTIONS WITH, ANY THIRD-PARTY SERVICES. YOU MUST COMPLY WITH ALL AGREEMENTS AND OTHER LEGAL REQUIREMENTS THAT APPLY TO THIRD-PARTY SERVICES.
4. Your Responsibilites
4.1 Acceptable Use. You and your Authorized Users must comply with the general UpContent Terms of Service (published at https://www.upcontent.com/terms-of-service) and all applicable laws. If you or any of your Authorized Users do not comply with the Terms of Service or any applicable laws, we may temporarily suspend or restrict your access to the Enterprise Services without prior notice. In such case, we will then notify you and, where applicable, will work with you in good faith to resolve the issue.
4.2 Beta Testing. From time to time, we may offer you the opportunity to install, use and test certain UpContent services prior to their commercial release (“Beta Services”). Use of the Beta Services is optional.
4.3 Partner Services. Without limiting the generality of Section 3.2, if you purchase any Partner Services, you: (a) acknowledge and agree that we are acting solely as an authorized reseller for such Partner Services; and (b) expressly agree to be bound by the terms and conditions applicable to such services.
4.5 Account Information. You are responsible for the completeness and accuracy of the account information you provide to us. You will promptly notify us upon becoming aware of any unauthorized access to or use of your log-in credentials or account.
4.6 Affiliates. Your Affiliates may use the Enterprise Services that you purchase, subject to the quantities or other usage limits set out in your Authorization Form. If an Affiliate wishes to have a separate account or wishes to be billed separately for its use of the Enterprise Services, that Affiliate will need to sign a separate Authorization Form, which will form a separate contract between UpContent and that Affiliate.
4.7 Agency. If you act as a legal agent purchasing the Enterprise Services on behalf of an end-user client (the “Principal”), then (a) that purchase must be made by signing an Authorization Form; (b) the Principal must be identified as the end-user on the applicable Authorization Form; (c) you represent and warrant to us that you have obtained all necessary authorizations, consents, and licenses from the Principal to bind the Principal to this Agreement (including each applicable Authorization Form) and to act as the Principal’s agent, and all of your actions related to this Agreement are within the scope of your agency with the Principal; and (d) you will defend, indemnify, and hold harmless UpContent from all damages, liabilities, costs, and expenses (including reasonable legal fees) arising from any breach of the foregoing representation and warranty.
5. Intellectual Property
5.1 Enterprise Services. We keep all rights and interests in our Enterprise Services. The Enterprise Services contain Content owned or licensed by UpContent (“UpContent Content”). UpContent Content is protected by copyright, trademark, patent, trade secret and other laws, and, as between you and UpContent, we own and retain all rights in the UpContent Content.
5.2 Feedback. We welcome your suggestions, comments, bug reports, feature requests or other feedback (“Feedback”). We do not have to keep Feedback confidential, even if you tell us it is confidential, provided we do not disclose that you are the source of any Feedback. If you provide Feedback, you grant UpContent a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use the Feedback for any purpose.
5.3 Customer Content. You retain your rights to any Customer Content you submit, post or display on or through the Services. You grant us a non-exclusive, worldwide, sublicensable, royalty-free license to use, host, run, copy, reproduce, process, adapt, translate, publish, transmit, display and distribute your Customer Content solely for the purposes of providing and supporting the Services. We may also use aggregated information derived in part from your use of the Services for the purposes of enhancing and developing our products and services but will not sell, rent, or otherwise monetize any of that aggregated information.
6. Term and Termination
6.1 Term of Agreement. This Agreement will commence on the first day of the initial term set forth on your first Authorization Form and will continue in effect until the earlier of: (a) the expiration of all Authorization Forms applicable to you (including any renewal periods unless notice of non-renewal is provided as set out in Section 6.2); or(b) the termination of this Agreement in accordance with its terms (the “Term”).
6.2 Term of Authorization Forms. The term of each Authorization Form will start on the first day of the initial term specified on the Authorization Form and will continue for the specified term. Except as expressly stated otherwise in an Authorization Form, all Authorization Forms will automatically renew for subsequent one-year renewal periods unless a party gives the other party written notice of non-renewal at least sixty (60) days prior to the end of the then-current term. UpContent reserves the right to increase the Fees for Enterprise Services and/or Partner Services on renewal by giving you written notice thereof (which notice may be given by email) provided that you will have at least thirty (30) days thereafter to give us written notice to opt-out of any applicable automatic renewal.
6.3 Termination for Cause. A party may terminate this Agreement for cause (a) immediately if the other party has failed to cure a material breach within thirty (30) days of receiving written notice of that material breach from the other party; or (b) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
6.4 Effects of Termination. Upon termination of this Agreement for any reason: (a) all Authorization Forms will automatically terminate; (b) your access to UpContent accounts, Enterprise Services and Partner Services will be terminated and you will immediately cease all use thereof, unless termination is in accordance with Section 6.5; and (c) you will pay all unpaid amounts you owe to UpContent. If you terminate this Agreement in accordance with Section 6.3, UpContent will refund any Fees you paid in advance for the Enterprise Services and Partner Services applicable to the period after termination. If UpContent terminates this Agreement in accordance with Section 6.3, then you will pay any unpaid Fees for the remainder of the term of each Authorization Form. In no event will termination of this Agreement relieve you of your obligation to pay any amounts payable to UpContent for the period prior to the date of termination.
6.5 Discontinuation of Services. We may decide to discontinue the Services in response to exceptional unforeseen circumstances, events beyond UpContent's control (for example a natural disaster, fire, or explosion), or to comply with a legal requirement. If we do so, we’ll give you reasonable prior notice so that you can export Customer Content from our systems (we will give you no less than ninety (90) days’ notice where possible under the circumstances). If we discontinue the Enterprise Services in this way before the end of any fixed or minimum term you have paid us for, we’ll refund the portion of the fees you have pre-paid but haven't received Enterprise Services for.
6.6 Survival. Any provision of this Agreement that, either by its terms or to give effect to its meaning, must survive and such other provisions that expressly or by their nature are intended to survive termination will survive the expiration or termination of this Agreement. Without limiting the foregoing, Sections 5, 8, and 9 will survive the expiration or termination of this Agreement.
7. Fees and Payment
7.1 Fees. You will pay all fees as and when described in the Authorization Form(s) (the “Fees”).
7.2 Invoicing. We will invoice you for the Fees in the currency set forth on the applicable Authorization Form. Unless otherwise stated on the Authorization Form, all undisputed invoices are payable within thirty (30) days of the invoice date. Any disputed amounts will not affect the payment of non-disputed amounts. You will make payments to the entity and address set forth in the invoice.
7.3 Late Payment. If any undisputed amounts invoiced are not received by UpContent by the due date, then, at our discretion, such charges may accrue late interest at the lower of: (a) the rate of 12% per year; or (b) the maximum rate permitted by law from the date such payment was due until the date paid. In addition, upon thirty (30) days’ written notice to you provided after the due date of any undisputed amount, we may suspend your access to the Enterprise Services if we have not received the amounts invoiced in full.
7.4 Taxes. You are responsible for paying all taxes, assessments, charges, fees, and levies that may be levied on or applicable to the sale or license of goods or services, as the case may be, including all sales, use, goods and services, value added, and excise taxes, customs duties, and assessments, together with any instalments and any interest, fines, and penalties with respect thereto, imposed by any governmental authority, including federal, state, provincial, municipal, and foreign governmental authorities (collectively, “Taxes”) associated with your subscription to the Enterprise Services, which for clarity does not include any taxes based on UpContent’s income. If we have the legal obligation to pay or collect Taxes for which you are responsible under this Section 7.4, the appropriate amount will be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. Any and all payments by or on account of the compensation payable under this Agreement will be made free and clear of and without deduction or withholding for any Taxes. If you are required to deduct or withhold any Taxes from such payments, then the sum payable will be increased as necessary so that, after making all required deductions and withholdings, we receive an amount equal to the sum we would have received had no such deduction or withholding been made.
8. Confidential Information
UpContent and you may exchange confidential information (“Confidential Information”) in the course of your negotiation and use of our Enterprise Services. UpContent’s Confidential Information may include non-public information about our pricing, personnel, or partnerships, our product roadmap, our security and data protection documentation, or other non-public information we identify as confidential. Your Confidential Information may include non-public information about your policies (such as your policies for internal review or approval of Customer Content), personnel (including names and email addresses of your Authorized Users), or plans or strategies (such as service delivery plans or content strategies you share with UpContent in the course of our delivery of UpContent Services), but does not include any Content published, communicated, or transmitted to or through a public audience. When either you or we (the “recipient”) receive Confidential Information from the other (the “discloser”), the recipient will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care) and will not disclose or use any Confidential Information of the discloser for any purpose outside of the scope of this Agreement. Information will not be considered Confidential Information if (i) it was lawfully in the recipient's possession before receiving it from the discloser; (ii) it is provided in good faith to the recipient by a third party without breaching any rights of the discloser or any other party; (iii) it is or becomes generally available to, or accessible by, the public through no fault of the recipient; or (iv) it was or is independently developed by the recipient without reference to the discloser’s Confidential Information. In the event that the recipient or any representative of the recipient becomes legally compelled (by law, rule, regulation, subpoena, or similar court process) to disclose any of the Confidential Information, the recipient will (if permitted to do so) provide the discloser with notice of such circumstances and will limit such disclosure to the required disclosure.
9. Warranties, Indemnities & Limitations of Liability
WARRANTIES & DISCLAIMER
9.1 Mutual Warranties. Each of UpContent and Customer represents and warrants that (a) it has the power and authority to enter into this Agreement and to perform its obligations and duties under this Agreement; and (b) it will perform its obligations and duties and exercise its rights under this Agreement in compliance with all laws applicable to it.
9.2 UpContent Warranties. UpContent warrants that: (a) subject to an API Change, the functionality of the Enterprise Services will not be materially decreased during the term of the applicable Authorization Form; (b) to its knowledge, the Enterprise Services do not contain any malicious code or viruses; (c) UpContent has and will maintain and apply its own industry-standard company policies; and (d) UpContent is an authorized reseller of any Third-Party Services sold to Customer by UpContent.
(a) EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE OFFER OUR ENTERPRISE SERVICES “AS IS” AND ARE NOT MAKING, AND TO THE GREATEST EXTENT PERMITTED BY LAW EXPRESSLY DISCLAIM, ANY WARRANTIES, CONDITIONS, REPRESENTATIONS OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SATISFACTORY QUALITY, AND/OR NON-INFRINGEMENT, THAT OUR ENTERPRISE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT OUR ENTERPRISE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE OR ERROR-FREE. USE OUR ENTERPRISE SERVICES AT YOUR OWN RISK.
(b) UNDER NO CIRCUMSTANCES WILL WE BE LIABLE FOR ANY THIRD-PARTY SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY SERVICES, OR ACTIVITIES OF THIRD PARTIES, OR ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET.
(c) WE ARE NOT RESPONSIBLE FOR AND WILL NOT BE LIABLE FOR THE CONTENT MADE AVAILABLE THROUGH THE ENTERPRISE SERVICES, INCLUDING CUSTOMER CONTENT, MENTIONS, AND ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. UPCONTENT DOES NOT CONTROL OR VET CONTENT AND IS NOT RESPONSIBLE FOR ANYTHING POSTED, TRANSMITTED, OR DISTRIBUTED ON OR THROUGH THE ENTERPRISE SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
9.4 Indemnification by UpContent. Subject to Customer’s compliance with Section 9.6, UpContent will defend, indemnify, and hold harmless Customer, its Affiliates, and its or their directors, officers, employees, agents, shareholders, successors and assigns from and against all claims, losses, damages, penalties, liability, and costs, including reasonable legal fees, of any kind or nature that are incurred in connection with or arising out of a third-party claim that the use of the Enterprise Services as permitted hereunder directly infringes a valid patent or copyright or misappropriates a third party’s trade secret (a “Claim”).
UpContent will have no liability for any Claim to the extent it arises from:
(i) a modification of the Enterprise Services by or at the direction of any person other than UpContent;
(ii) use of the Enterprise Services in violation of this Agreement or applicable law;
(iii) use of the Enterprise Services after UpContent notifies Customer to discontinue use because of an infringement or misappropriation claim; or
(iv) the combination, operation, or use of the Enterprise Services with any other software, program, or device not provided or specified by UpContent to the extent such infringement would not have arisen but for such combination, operation, or use.
For the avoidance of doubt, UpContent’s indemnification obligations in this Section 9.4 will not apply to third-party content, open source software, Partner Services or other Third-Party Services accessed through the Enterprise Services, or to Customer Content or Mentions.
If the Enterprise Services or any part thereof have become, or in UpContent’s opinion are likely to become, the subject of any Claim, UpContent may at its option and expense:
(1) procure for Customer the right to continue using the Enterprise Services as set forth hereunder;
(2) replace or modify the Enterprise Services or applicable functionalities to make them non-infringing; or
(3) if options (1) or (2) are not reasonably practicable, terminate either or both this Agreement or the Authorization Form for such Enterprise Services and refund to Customer any unearned Fees that Customer paid in advance for such Enterprise Services.
This Section 9.4 sets forth UpContent’s sole liability (and Customer’s sole remedy) regarding infringement or misappropriation of third-party intellectual property rights.
9.5 Indemnification by Customer. Subject to UpContent’s compliance with Section 9.6, Customer will defend, indemnify, and hold harmless UpContent, its Affiliates, and its or their directors, officers, employees, agents, shareholders, successors and assigns from and against all claims, losses, damages, penalties, liability, and costs, including reasonable legal fees, of any kind or nature that are incurred in connection with or arising out of a third-party claim: (a) alleging that Customer Content or Submitted Content infringes or violates the intellectual property rights, privacy rights, or any other rights of a third party or violates any applicable law; or (b) arising from Customer’s breach of the Acceptable Use Rules, any terms or conditions applicable to Customer’s use of any Third-Party Services, or any applicable law.
9.6 Indemnification Procedure. The indemnified party will: (a) give written notice of the claim to the indemnifying party promptly and in any event no later than ten (10) days after the indemnified party receives the claim; (b) give the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not enter into any settlement, compromise or consent to judgment with respect to any claim without the indemnified party’s prior written consent unless such settlement, compromise or consent to judgment unconditionally releases the indemnified party of all liability); and (c) provide the indemnifying party with reasonable cooperation and assistance at the indemnifying party’s expense.
LIMITATIONS OF LIABILITY
9.7 Maximum Liability. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 9.7 THROUGH 9.9, AND NOT INCLUDING CUSTOMER’S OBLIGATION TO PAY ALL FEES OWED TO UPCONTENT HEREUNDER, IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY OF LIABILITY, EXCEED THE FEES PAID BY CUSTOMER FOR THE ENTERPRISE SERVICES SUBJECT TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. FOR CLARITY, THE CALCULATION OF EACH PARTY’S LIABILITY UNDER THIS SECTION 9.7 EXCLUDES ANY FEES PAID BY CUSTOMER TO A THIRD PARTY OR FOR ANY PARTNER SERVICES, EVEN WHERE UPCONTENT’S ENTERPRISE SERVICES ARE BUNDLED WITH OR OTHERWISE PROVIDED IN CONJUNCTION WITH PARTNER SERVICES.
9.8 Excluded Damages.
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR FOR LOSS OF PROFITS, GOODWILL OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE ENTERPRISE SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT.
(b) The Enterprise Services Terms of Service require you to maintain the confidentiality of your passwords or other login credentials for the Enterprise Services. ACCORDINGLY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL UPCONTENT BE LIABLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM UNAUTHORIZED ACCESS TO OR USE OF THE ENTERPRISE SERVICES OR YOUR ACCOUNT OR THE CONTENT OR INFORMATION CONTAINED THEREIN IF: (A) THE UNAUTHORIZED ACCESS OR USE COULD HAVE BEEN PREVENTED, OR (B) YOU OR ANY OF YOUR AUTHORIZED USERS FAIL TO MAINTAIN THE CONFIDENTIALITY OF ANY PASSWORD OR OTHER LOGIN CREDENTIALS.
(c) WITHOUT LIMITING SECTION 9.8(b), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL UPCONTENT BE LIABLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM UNAUTHORIZED ACCESS TO OR USE OF THE ENTERPRISE SERVICES OR YOUR ACCOUNT OR THE CONTENT OR INFORMATION CONTAINED THEREIN, EXCEPT TO THE EXTENT UPCONTENT’S BREACH OF THE ENTERPRISE SECURITY STANDARDS RESULTS IN THE UNAUTHORIZED DISCLOSURE OF YOUR CONFIDENTIAL INFORMATION.
(d) YOUR EXCLUSIVE REMEDIES FOR ANY INTERRUPTION OR CESSATION OF ACCESS OR TRANSMISSION TO OR FROM THE SERVICES ARE SET FORTH IN THE ENTERPRISE SERVICE LEVEL AGREEMENT.
9.9 Exclusions. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR WILL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF EITHER PARTY FOR (I) INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT; (II) DEATH OR BODILY INJURY CAUSED BY THE NEGLIGENCE OF THAT PARTY, ITS EMPLOYEES, OR ITS AGENTS; (III) FRAUDULENT MISREPRESENTATION OR WILLFUL MISCONDUCT OF THAT PARTY OR ITS EMPLOYEES; OR (IV) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
9.10 Basis of Bargain. THE ESSENTIAL PURPOSE OF SECTIONS 9.7 THROUGH 9.9 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF UPCONTENT WERE TO ASSUME ANY FURTHER LIABILITY. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
10.1 Assignment. Neither party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the other party (not to be unreasonably withheld), and any attempted assignment without such consent will be void. Notwithstanding the foregoing, we may assign this Agreement in its entirety (including all Authorization Forms), without your consent, to our Affiliate, or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our shares or assets.
10.2 Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.
10.3 Publicity. Unless you provide us with written notice to the contrary or of any reasonable restrictions or requirements, you agree that we may disclose that you are a customer of the Enterprise Services and may use your name(s) and logo(s) in: (a) UpContent’s digital, online, and printed marketing materials (including on our websites); and (b) external-facing presentations, including to individual clients and prospects and at trade shows, conferences, and similar events.
10.4 Force Majeure. Neither party will be liable for any failure to perform its obligations under this Agreement if that failure results from any cause beyond such party’s reasonable control, including: the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lockouts or labor disruptions; and any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
10.5 Amendment. We may change any part of this Agreement (including any terms or documents incorporated by reference in this Agreement) at any time by posting the revised terms on the UpContent website. It is important for you to review this Agreement before using our Enterprise Services and from time to time, though we will notify you of any changes that, in our sole discretion, materially impact this Agreement. The updated Agreement will be effective as of the time of posting, or on such later date as may be specified in the updated Agreement, and your continued use of the Enterprise Services after any such changes are effective will constitute your consent to such changes. Except for changes made by us as described here, no other amendment or modification of this Agreement will be effective unless set forth: (a) in an Authorization Form issued by UpContent and signed by you; or (b) in an agreement signed or otherwise agreed in writing by both you and UpContent.
10.6 Severability. If a court finds part of this Agreement to be invalid, the rest of the Agreement will continue to apply with the minimum changes required to remove the invalid part.
10.7 Notices to You. UpContent may give notice to you by placing a banner notice on the UpContent platform or UpContent’s website. We may also contact you or your Authorized Users through your UpContent account or contact information you provide, such as email or telephone. If you fail to maintain accurate account information, such as contact information, you may not receive critical information about our Enterprise Services or this Agreement.
10.8 Notices to UpContent. For any notice to UpContent that you give under or regarding this Agreement, you must notify UpContent by email to firstname.lastname@example.org with a duplicate copy sent via registered mail to the following address: UpContent Inc., 6101 Penn Avenue, Suite 201, Pittsburgh, PA 15206 USA; Attention: Legal Department.
10.9 Waivers. The rights of each Party may be waived only in writing. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.
10.10 Remedies. Unless otherwise stated, each party’s remedies under this Agreement are not exclusive of any other remedies under this Agreement, at law or otherwise.
10.11 Insurance. UpContent has and will maintain industry-standard insurance policies. Upon request no more than once annually, UpContent will provide you with a copy of an insurance certificate showing coverage for comprehensive general liability and professional liability (including coverage for errors & omissions and network & information security liability).
10.12 Governing Law and Dispute Resolution.
(a) The laws of the Commonwealth of Pennsylvania in the United States of America will govern any dispute, cause of action or claim arising out of this Agreement or your use of our Enterprise Services (“Dispute”), without giving effect to conflict-of-law principles.
(b) If either of us breach this Agreement or violate the other’s rights or another person’s rights, in addition to any other remedy, you or we may ask a court for an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions of this Agreement, and seek reimbursement of reasonable legal fees associated therewith.
(c) If you have any kind of Dispute with us, the exclusive means of resolving it will be by confidential, binding arbitration before a single arbitrator chosen by you and UpContnet. You will give notice of your Dispute to us in writing. If we do not decide together on an arbitrator within fifteen (15) days after we receive that notice, we both agree to ask the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitrator will have the right to decide how the costs should be divided between us. The arbitrator will have the right to accept whatever kind of evidence they think is appropriate and will have the right to make whatever award they consider fair and equitable, based on legal and equitable principles, including giving an order such as an injunction (to stop one of us from doing something) or an order that you or we pay damages to the other. The award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
(d) Any Dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. UpContent and you each waive any right to a trial by jury.
10.13 Export Compliance. You will not use or access our Enterprise Services if you are located in any jurisdiction in which the provision of our Enterprise Services is prohibited under United States or other applicable laws (a “Prohibited Jurisdiction”) and you will not provide access to our Enterprise Services to any government, entity or individual located in any Prohibited Jurisdiction. You confirm that you are not named on any U.S. government list of persons or entities prohibited from transaction with any U.S. person; (b) you are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) you will not allow Authorized Users to access or use our Enterprise Services in violation of any U.S. or other export embargoes, prohibitions or restrictions; and (d) you will comply with all applicable laws regarding the transmission of data exported from the country in which you (or your Authorized Users) are located to the United States.
10.14 Entire Agreement. This Agreement, including the other documents referred to as applicable to the Enterprise Services in this Agreement, is the entire agreement between you and UpContent for your use of our Enterprise Services. Any prior understandings, statements or and agreements (oral or written) do not apply, including additional terms that you may present (such as terms in a unilateral notice from you to us or printed on a purchase order or any other document generated by you). This Agreement is binding on the parties and their permitted successors and assigns.