UP9 Terms of Service
The following are the terms and conditions for the use of all UP9’s offerings (collectively, “Service”) including up9.app and mocklab.io (collectively, “Webapp”) provided by UP9 Inc. (“UP9”). Please read these Terms of Service and the Privacy Policy (located at https://up9.com/terms/up9-privacy-policy), and which is incorporated herein by reference carefully (together, the “Terms”). By using the Service, Customer (as defined below) agrees to be bound by these Terms. If Customer does not agree to be bound by these Terms, it should not use the Service.
- Registration, User Account, Password and Security
1.1 The individual (the “User”) opening an account on UP9's website (the “Account”) does this on behalf of his/her organization (the “Customer”). In order to use the Service, the User must provide truthful, accurate, and current information about himself/herself, including such User’s email address as well as additional set-up information (“Registration Data”). The User must maintain and update the Registration Data so that it remains at all times accurate, current and complete. As part of the Account set-up and registration process, the User (on behalf of the Customer) may be asked to choose a username and a password. The User and the Customer will be responsible for maintaining the confidentiality of the User’s credentials, and agree not to transfer the use of, or access to, the Service to any third party. For avoidance of doubt, each User’s account is personal and may only be accessed and used by the specific User for whom such account is created. The Customer is fully and solely responsible for any and all activities that occur through the Account. UP9 cannot and will not be liable for any loss and/or damage resulting from the Customer’s failure to comply with this security obligation. The Customer agrees to immediately notify UP9 of any unauthorized use of any User’s credentials or the Account or any other breach of security, and to simultaneously make sure that any User resets his/her password and will cooperate with UP9 with respect to any investigation of any suspected or alleged violation of these Terms. UP9 may suspend or terminate any User’s access to the Service in the event that it determines that such User has violated these Terms. Customer may permit its employees to use the Service on behalf of Customer subject to these Terms (the term User as used herein shall apply, mutatis mutandis, to all such Users acting on behalf of the Customer), provided that: (a) Customer remains responsible for compliance with these Terms by all such Users, and (b) use of the Service by any such User is for the sole benefit of Customer. Customer will ensure that all such Users keep security credentials strictly confidential.
1.2 The User accepting these Terms on behalf of the Customer hereby represents and warrants that he/she has the authority to bind the Customer. IF THE USER DOES NOT HAVE THE AUTHORITY TO BIND THE CUSTOMER, THE USER WILL INDEMNIFY, DEFEND AND HOLD UP9 AND ITS RELATED PARTIES HARMLESS FROM AND AGAINST ANY AND ALL DAMAGES THAT ARE BASED ON OR ARISE DIRECTLY OR INDIRECTLY OUT OF OR FROM THE USE OF THE SERVICE BY THE USER ON BEHALF OF THE CUSTOMER. - License to the Service
2.1 Non-Exclusive License. Subject to and conditioned upon Customer acceptance of these Terms and Customer ongoing compliance with these Terms, UP9 grants the Customer a non-exclusive, non-transferable, non-sublicensable, limited license to install, remotely access (i.e. on a SaaS Basis) and use the Service, solely for the Customer’s own internal business use, and in strict compliance with these Terms. The license granted herein shall also include the right to use the Service’s documentation and certain software components to be deployed on the Customer's servers for the provision of the Service, and such documentation and software components shall be included in the definition of “Service” for the purpose of these Terms.
2.2 Changes in the Service. UP9 may, but is not required to, improve the Service for the benefit of its customers. Therefore, UP9 may make changes to the Service from time to time, including removing any feature or functionality of the Service. UP9 will use commercially reasonable efforts to provide the Customer with reasonable notice (which may be provided via a notice in UP9’s website) prior to any material change in the Service.
2.3 Restrictions. The Customer will not, nor will Customer allow any third party to: (a) copy, modify, adapt, translate or otherwise create derivative works of the Service; (b) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Service; (c) rent, lease, sell, sublicense, assign or otherwise transfer rights in or to the Service; (d) remove any proprietary notices or labels from the Service; (e) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service; (f) develop any other product or service containing any of the concepts and ideas contained in the Service or use the Service for the purpose of building a similar or competitive product; (g) test the Service or use the Service in connection with any benchmark tests, evaluation, or any other tests of which the results are designated or likely to be published in any form or media, or otherwise made available to the public, without UP9’s prior written approval; (h) directly or indirectly take any action to contest UP9’s intellectual property rights or infringe them in any way; (i) make the Service available for timesharing, application service provider or service bureau use; (j) remove, obscure, or alter any notice of copyright, UP9's Marks (as such term is defined below), or other proprietary right appearing in or on any item included with the Service; or use the Service in a manner beyond the scope of rights expressly granted in these Terms.
2.4 Deploying on Test Environment. Customer has been advised and acknowledges that in order to calibrate the Service, the Service must be able to run the tests on the Customer's environment, which tests may, under certain circumstances, affect the Customers environment (including its infrastructure, data base, servers and systems). Customer understands and represents that it shall be solely responsible for any Damages occurring as a result of deploying the Service, including in a live production environment.
2.5 Customer's Right to Use Results. Any and all results obtained by the Customer or Users acting on its behalf through use of the Service, including automatic test suites, are the property of Customer (including all intellectual property attached thereto), provided, however, that UP9 shall have a worldwide, royalty free, unlimited, perpetual license to use such results for any purpose whatsoever. Machine generated test-code is generated under the license terms of Apache 2.0 and may be used by the Customer in accordance with the terms of such license. - Representations
3.1 Mutual Representations
3.1.1 Each party is duly organized and has the full power, legal capacity, and authority to enter into, deliver and fully perform its respective obligations set forth in these Terms; and
3.1.2 The execution or performance of these Terms will not result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which such party is bound.
3.2 Customer's Representations
The Customer represents and warrants that:
3.2.1 It will not use the Service for any illegal or unauthorized purpose or infringe or promote the infringement of any intellectual, proprietary or other right of any party, and the Customer will comply with all applicable laws and regulations (including, but not limited to, all applicable copyright and privacy laws) in the Customer’s use of and access to the Service.
3.2.2 The Customer is the owner of, or has the required rights in all of the environments, servers, systems, and cloud accounts which the Customer uses in connection with its Account(s), and the Customer is solely responsible for any and all activities that relate to such environments, servers, systems, and cloud accounts.
3.2.3 In the event that the Customer’s environments, servers, systems or cloud account(s) contain any personal information (as may be considered as such by any applicable law), the Customer represents and warrants that the Customer holds and maintains such personal information in compliance with any and all applicable laws, and that the Customer is allowed to use the Service in connection with such personal information.
3.2.4 Customer will comply with all applicable import, export control and economic sanction laws and regulations, including those of the state of Israel and the United States, that prohibit or restrict the export, re-export, transfer or use of products, technology, services or data, directly or indirectly, to or for certain countries, end uses or end users. Notwithstanding and subject to the foregoing, the Customer represents and warrant that it is not located in Iran, Lebanon, Sudan, Syria, North Korea, Cuba, Libya or Iraq. Upon request, Customer will promptly provide UP9 with information and/or supporting documents which are necessary to UP9 in order to determine whether the Customer’s use of the Service is made in accordance with applicable export laws and other obligations set forth hereunder. Customer understands that UP9 may suspend Customer’s and its User’s access to Services until UP9 receives information/documents to reasonably determine that Customer is in compliance with all applicable export control laws. - Intellectual Property Rights; Customer's Content
4.1 UP9's Intellectual Property Rights
4.1.1 The Service (and any and all improvements enhancements, corrections, modifications, alterations, revisions, extensions and updates and derivative works thereof) and all of the intellectual property rights therein (including UP9’s Marks) are, and shall remain, UP9 exclusive property, including but not limited to, any modifications or custom features to the Service to be developed by UP9 for the Customer’s benefit, whether requested or instructed by the Customer or not, even if the Customer has paid for such modifications, except if UP9 and the Customer have a separate written agreement that specifically states otherwise and references this Section. These Terms do not convey to Customer any interest in or to the Service other than a limited right to use the Service in accordance with the Terms contained herein. Nothing herein constitutes a waiver of UP9’s intellectual property rights under any law. UP9 reserves all rights not expressly granted herein to the Services. Any error and bug reports, additional features, ideas, requests, feedbacks, recommendations, comments, concepts and other requests or suggestions related to the Service (collectively “Ideas”) that the Customer may provide to UP9, will be solely owned by UP9. To the extent UP9 is unable to get sole ownership of such Ideas, Customer hereby grants UP9 a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Ideas in connection with UP9’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Services. Customer shall be solely responsible for abstaining from providing any Ideas which include any of Customer’s confidential information, intellectual property, personal identifiable information, or any other information that identifies Customer as the source of the Ideas. Insofar as Customer does transfer Ideas which include any of the foregoing, the Customer hereby irrevocably assigns and transfers any intellectual property rights in such Ideas to UP9, free of charge, waives any and all moral rights that Customer may have, and releases UP9 from any obligation of confidentiality with respect thereto. All of UP9’s trademarks, including but not limited to any service marks, logos, domain names, copyrights and other proprietary rights associated with UP9 and the Service, whether registered or non-registered, shall be collectively be referred to as “UP9’s Marks”. The Customer agrees not to directly or indirectly (and not to allow any third party to): (a) use UP9’s Marks for any purpose (other than as detailed hereunder) without UP9’s express written consent; and (b) register, attempt to register, or assist anyone else to register any UP9’s Marks or marks confusingly similar thereto.
4.2 Customer's Content
4.2.1 By registering to the Service, Customer hereby grants UP9 a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, and modify Customer’s content contained in the Customer’s environments, servers, systems, and cloud account(s) (“Customer Content”) solely as part of the provision of the Service to the Customer. UP9 will not disclose or publish any Customer Content without Customer’s prior written consent.
4.2.2 Customer authorizes UP9 to use its name, logo and other applicable trademarks, at any time, for the purpose of referencing the Customer as a customer of the Service or in other promotional marketing materials. If the Customer does not wish to be referenced, the Customer may contact UP9 at info@UP9.com.
4.2.3 Notwithstanding and subject to Section 3.2.4, Customer shall bear the sole responsibility of complying with all applicable privacy and export control laws and regulations in respect to the Customer Content.
4.2.4 Customer hereby agrees that UP9 shall not be responsible for any costs and/or expenses with respect to the Customer’s systems, servers and cloud accounts, and all such costs and/or expenses shall be borne solely by the Customer. - Confidentiality
5.1 Each party agrees that it will not disclose to any third party or use any Confidential Information disclosed to it by the other party, except to carry out its rights and obligations under these Terms, and that it will take all reasonable measures to maintain the confidentiality of all other party's Confidential Information in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance. “Confidential Information” shall mean any non-public information of either party, including but not limited to, all computer software (in binary or source code form), programs, designs, concepts, scientific, algorithmic and structural information included in, or related to, the Service, information of a business and commercial nature (such as financial and marketing information disclosed in any form or medium whatsoever). Confidential Information includes, but is not limited to, all information designated by either party as confidential or proprietary within a reasonable time of its disclosure or which a reasonable person would expect to be treated as confidential. “Confidential Information” will not include information that (a) is in or enters the public domain without breach of this Section; (b) is lawfully obtained by the receiving party from a third party without breach of a nondisclosure obligation; (c) is already in the possession of the receiving party as shown by its dated written records; (d) is required by law to be disclosed, provided that the receiving party gives prompt written notice of such requirement prior to disclosure, and reasonably assists the disclosing party in avoiding or limiting such disclosure, all subject to applicable law; or (e) is independently developed by the receiving party without use of the disclosing party's confidential information.
5.2 The receiving party acknowledges that the disclosure of Confidential Information could cause substantial harm to disclosing party that could not be remedied by the payment of damages alone. Accordingly, disclosing party will be entitled to preliminary and permanent injunctive relief and other equitable relief in any relevant jurisdiction for any breach of this Section 5 or misuse of Confidential Information by the receiving party.
5.3 Upon termination of these Terms, Customer will immediately return to the other party or destroy all copies of the UP9’s Confidential Information in its possession or control, except for copies stored in backups, which shall continue to stay confidential. Each party’s obligations of non-disclosure with regard to Confidential Information will expire five (5) years from the date first disclosed to the receiving party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Terms for as long as such Confidential Information remains subject to trade secret protection under applicable law. - Ordering Document; Fees; Taxes
6.1 Ordering Document
6.1.1 For the purposes of these Terms, the term “Ordering Document” shall mean UP9's purchase order form (“Purchase Order”) agreed between UP9 and the Customer or between UP9 and its authorized resellers (“Reseller(s)”). The parties may agree to use another form of document or instrument to record their agreement on the type and number of licenses purchased by Customer, but such other forms and instruments shall bind UP9 only if executed by an authorized officer of UP9; provided however, that in any event whatsoever, any pre-printed/boilerplate terms in such forms issued by the Customer (or by the Reseller) to UP9 (for administrative, accounting or other purposes) will be null and void and shall not have any effect on the parties’ rights, and these Terms shall prevail.
6.1.2 Any mutually agreed upon Ordering Document shall be deemed an integral part of these Terms, and these Terms shall apply thereto. In the event of a conflict between these Terms and the applicable Ordering Document, the terms of the applicable Ordering Document shall prevail solely if (a) the applicable Ordering Document expressly identifies and supersedes or modifies a specific provision in these Terms; and (b) the applicable Ordering Document is signed by an authorized signatory of both parties.
6.1.3 The type and scope of the Service will be as set forth in the Ordering Document. Such Ordering Document shall include at least the following information: (a) the type of license; (b) the number of licenses to be purchased by the Customer; (c) Customer name; (d) the Fees and the payment terms; (e) subscription term; and (f) any other details to be agreed upon by the parties.
6.1.4 UP9 is not obligated to accept any Ordering Document for any reason or for no reason.
6.2 Fees
6.2.1 Access and use of the Service is conditioned on payment by the Customer to UP9 of the fees agreed upon between the Customer and UP9 or between UP9 and the Reseller, as the case may be (the “Fees”). Unless otherwise explicitly detailed in these Terms, all amounts owed to UP9 are non-cancellable and the Fees paid are non-refundable.
6.2.2 UP9 will invoice for the Service as set forth in the applicable Ordering Document, and each invoice will be paid via bank wires, checks, or other methods made available by UP9, in US dollars, within thirty (30) days from the date of the invoice. Any undisputed Fees unpaid by the due date shall thereafter bear interest at the rate of one percent (1%) per month (or the maximum amount permitted by applicable law, whichever is less), during the period between the date the payment first becomes due and the date such amount is actually paid.
6.2.3 UP9 may use various third-party billing service providers. When using such third-party provider’s services, the Customer agrees to follow and comply with the policies of such provider.
6.2.4 UP9 reserves the right to change its fees at any time, and Customer shall be informed of such changes via email prior to such changes (“Notification”). Should Customer not agree to the price changes, Customer's sole remedy shall be to contact UP9 directly and to request non-renewal of its use of the Services prior to the effective date of the price changes as shall be detailed in the Notification.
6.3 Taxes. All Fees payable hereunder, do not include local, state, or federal sales, use, excise, personal property, VAT or other taxes, customs and duties, including, without limitation, any withholding tax. Any such taxes, to the extent legally applicable, excluding taxes based on UP9’s net income, shall be borne and paid by the Customer. The Customer will pay all applicable taxes when invoiced by UP9 or will supply appropriate tax exemption certificates in a form satisfactory to UP9. In cases wherein the Customer is legally required to withhold any income or remittance tax from amounts payable to UP9, then (a) the Customer will promptly notify UP9; (b) the amounts payable to UP9 will be automatically increased to the full extent required to offset such tax, so that the amount remitted to UP9, net of all taxes, equals the amount stated in the invoice; and (c) the Customer will provide UP9 with the official receipt of payment of such taxes to the appropriate taxing authority. - Term and Termination; Consequences of Termination
7.1 Term and Termination
7.1.1 Term of these Terms. These Terms will enter into effect once accepted by the Customer in the registration process and/or by its actual use of the Service, and shall remain in effect for an indefinite period of time so long as the Customer uses the Service, unless terminated by a mutual agreement of both parties.
7.1.2 UP9 may terminate these Terms and the licenses granted hereunder for convenience, at any time, by providing Customer with thirty (30) days prior written notice. In such case UP9 shall refund Customer with the pre-paid fees paid to UP9 pro-rated with respect to the un-utilized term.
7.1.3 The Customer may cease using the Service at any time, provided however, that upon any such termination of the Service, the Customer will not be entitled to any refund of Fees previously paid, and such termination of the Service will not release the Customer from its obligation to pay all Fees, and such Fees will be immediately due and payable in full.
7.1.4 UP9 may terminate these Terms and the licenses granted hereunder, in any case of a material breach by the Customer (including non-payment of Fees) of these Terms and/or any applicable law, which has not been cured by the Customer within fourteen (14) days following a written notice thereof from UP9. In respect to any free of charge licenses, such as trial licenses, UP9 may terminate the license and these Terms at any time by providing the Customer with a seven (7) day prior notice.
7.2 Consequences of Termination
Upon any termination of a license to use the Service, the following shall apply: 7.2.1 All rights granted to the Customer under the applicable license shall immediately be terminated.
7.2.2 Customer shall immediately delete software elements off the Customer's environments, servers, systems, and cloud accounts, including all of UP9’s Confidential Information and any other intellectual property of UP9 made available to it in connection with these Terms, and shall make no further use of same.
7.2.3 If the license terminated was the last license used by the Customer, then UP9 may suspend or delete the respective Account(s).
7.2.4 The expiration or termination of the license or these Terms shall not relieve the Customer of any obligation intended to survive under these Terms, including but not limited to, Sections 1.1, 4.1, 5, 6.2, 7.2, 8, 9, 10, 11, and 12. - Audit Rights.
8.1 UP9 reserves the right, and Customer hereby grants the UP9 with a right, to inspect (either by personnel of the UP9 or by any third party acting on UP9’s behalf) the Customer's records and code, as necessary to verify compliance with these Terms, including, without limitation, Section 7.2 above, and Customer shall make its records and systems directly related to its use of the Service available for such inspection, copy and audit, on reasonable notice of not less than 5 (five) business days, during normal business hours throughout the term of these Terms and for 2 (two) year thereafter, or as otherwise required by applicable laws and/or regulations. UP9 shall not conduct more than one (1) audit in a twelve (12) month period. Customer shall fully cooperate with UP9 and/or any auditor inspection and audit. - Indemnification
The Customer hereby agrees to indemnify, defend and hold UP9 and its directors, employees, service providers, agents, sub-contractors, representatives, and anyone on UP9's behalf (the “Related Parties”) harmless from and against any and all claims, including related judgments, awards, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) and other expenses (collectively “Damages”) that are based on or arise directly or indirectly out of or from (a) Customer breach of these Terms; (b) any misuse of the Account(s) by the Customer and any third party on the Customer’s behalf; (c) any breach of the Customer's representations and warranties set forth herein; and (d) Customer or Customer employees’ or personnel’s negligence or willful misconduct. - Disclaimer of Warranties
10.1 EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE CUSTOMER UNDERSTANDS AND AGREES THAT THE SERVICE AND ANY RELATED SERVICES PROVIDED TO THE CUSTOMER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, UP9 AND ITS RELATED PARTIES DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
10.2 UP9 AND ITS RELATED PARTIES DO NOT WARRANT: (A) THAT THE SERVICE AND ANY RELATED SERVICES PROVIDED TO THE CUSTOMER WILL MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS; (B) THAT THE CUSTOMER’S USE OF THE SERVICE AND ANY RELATED SERVICES PROVIDED TO THE CUSTOMER WILL BE UNINTERRUPTED; OR (C) THAT DEFECTS, IF ANY, WILL BE CORRECTED.
10.3 The foregoing exclusions and disclaimers are an essential part of these Terms and formed the basis for determining the price charged for the Service and any related services.
10.4 UP9’s Service and software contain third-party proprietary software programs, including, but not limited to, open source components. Open source components are provided AS IS, without any warranty, express or implied, and in accordance with their respective license terms. In any event of a conflict between any open source license and the terms of this Agreement, then the open source license terms shall prevail, but solely in connection with such open source software. A list of such open source components (may be updated from time to time by UP9) can be provided upon request from UP9.
10.5 UP9 may provide hyperlinks to other websites or resources. Because UP9 has no control over such sites and resources, the Customer acknowledges and agrees that UP9 shall not be responsible for the availability of such sites or resources, nor shall UP9 be responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. When the Customer accesses these third-party sites, Customer does so at the Customer’s own risk, and Customer should refer to each such website’s individual “Terms of Service” and not rely on these Terms in any way. - Limitation of Liability
11.1 UP9, AND ITS RELATED PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, LOST PROFITS OR OTHER INTANGIBLE LOSSES), UNDER ANY THEORY OF LAW INCLUDING UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY, BREACH OF ANY STATUTORY DUTY, OR OTHERWISE ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICE AND ANY RELATED SERVICES PROVIDED TO CUSTOMER (EVEN IF UP9 OR ITS RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE). Some jurisdictions may not allow the limitation or exclusion of liability for incidental or consequential damages, so some of the above may not apply to the Customer. In such jurisdictions, liability is limited to the fullest extent permitted by law.
11.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UP9’S AND ITS RELATED PARTIES’ TOTAL AGGREGATE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNTS ACTUALLY RECEIVED BY UP9 OR RESELLER FROM THE CUSTOMER FOR THE SERVICE PROVIDED TO THE CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE CIRCUMSTANCES FIRST GIVING RISE TO THE CLAIM OF LIABILITY (THE “CAP AMOUNT”); EXCEPT THAT IF SUCH SERVICES WERE PROVIDED TO THE CUSTOMER FREE OF CHARGE, THEN THE CAP AMOUNT SHALL BE LIMITED TO US$1,000.
11.3 The Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action it may have arising out of or related to use of the Service or otherwise under these Terms must be filed within two (2) years after such claim or cause of action arose or the Customer hereby agrees to be forever barred from bringing such claims.
11.4 These Terms shall not confer any rights or remedies upon any person or entity on behalf of the Customer other than the Customer.
11.5 PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 11 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN UP9 AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE. - Miscellaneous
12.1 Either party’s failure to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of these Terms will be effective unless it is in writing and signed by the party granting the waiver.
12.2 If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from these Terms.
12.3 UP9 may freely assign its rights and responsibilities hereunder without notice to the Customer. These Terms are not assignable, transferable or sublicensable by the Customer except with UP9’s prior written consent.
12.4 These Terms constitute the entire understanding between the Customer and UP9, and revoke and supersede all prior agreements between the parties, and are intended as a final expression of the parties' agreement.
12.5 Any heading, caption or section title contained in these Terms is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.
12.6 UP9 reserves the right at any time to modify these Terms. Any such modification will be effective immediately upon posting the amended Terms on UP9’s website or by sending an electronic mail to the Customer. The Customer’s continued use of the Service after the effective date of any such modification will be deemed acceptance of such modified Terms.
12.7 All disputes arising out of this Agreement will be subject to the governing law of State of California, U.S and the exclusive jurisdiction of the competent courts located in the city of San Francisco California, U.S. The parties understand and fully agree that they are giving up their right to have a trial by jury. The parties agree and submit to the personal and exclusive jurisdiction and venue of these courts, except that nothing will prohibit either party from instituting an action in any court of competent jurisdiction to obtain injunctive relief or protect or enforce its intellectual property rights. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms.
12.8 UP9 may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that UP9 remains responsible for the performance of each such Subcontractor. Notwithstanding anything to the contrary in these Terms with respect to any third-party vendors including any hosting (e.g. AWS) or payment vendors (e.g. PayPal), UP9 will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of UP9.
12.9 Neither party will be responsible for any failure or delay in the performance of its obligations under these Terms (except for any payment obligations ) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God. 12.10 The relationship between the parties is that of independent contractors. Nothing in these Terms will be construed to establish any partnership, joint venture or agency relationship between the parties. Neither party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other party’s prior written consent. 12.11 Notices and all other communications provided for in these Terms shall be in writing and shall be deemed to have been duly given when personally delivered or sent by email (info@UP9.com if to UP9, and the email provided by the Customer as part of the Registration Data if to the Customer), provided that the recipient confirmed the receipt of such notice, or certified mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth on the respective Ordering Document or last given by each party to the other. Such notice, demand or other communication shall be deemed given (a) if sent by an email - upon receipt of confirmation as set forth above; (b) at the expiration of seven (7) days from the date of mailing by registered mail; or (c) immediately if delivered by hand.
Last modified: January 4, 2022