“Affiliate" means, with respect to a party, any entity which directly or indirectly Controls, is Controlled by, or is under common control with such party.
“Confidential Information” has the meaning set forth in Section 9.
“Control” means ownership or control, directly or indirectly, of more than 50% of the voting interests of the subject entity.
“Customer Equipment” means Customer’s and its Affiliates’ computer hardware, software and network infrastructure used to access the Services.
“Customer Data” means data, text, files, and the like that Customer inputs and/or loads into the Services or that 1UPAMS otherwise processes on Customer’s behalf in connection with providing the Services.
“Documentation” means the description of the Services licensed by Customer contained in the official 1UPAMS Services specifications.
“Effective Date” means the date this Agreement or an Order Form referencing this Agreement is first executed.
“Hardware” means any tablet, devices, printers, tablet stands, and the like provided by 1UPAMS, if and as listed in an Order Form.
“Order Form” means an order for the Services signed by Customer and 1UPAMS or a Reseller.
“Reseller” means a reseller authorized in writing by 1UPAMS to provide the Services on 1UPAMS’s behalf.
“Services” means any 1UPAMS cloud solution, downloadable software, and APIs licensed by 1UPAMS to Customer, together with all Updates, as further described in the Documentation and an Order Form.
“Support” has the meaning set forth in Section 6.
“Taxes” means any direct or indirect local, state, foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes.
“Term” means the Term applicable to each of the Services specified on an Order Form, or if no such term period is defined, twelve (12) months, commencing on the effective date of the Order Form.
“Updates” means all Services updates and enhancements that 1UPAMS generally makes available at no additional charge to its customers of the version of the Services purchased hereunder who are currently in payment of applicable fees.
“Users” means Customer's and its Affiliates' employees, agents, contractors, and consultants who are authorized by Customer to use the Services.
2.1 Subject to the terms of the Agreement, 1UPAMS grants Customer and its Affiliates a non-exclusive, non-transferable (except to a successor in interest as permitted hereunder) license to access, use, and install (only for the portions of the Services that are available for download by 1UPAMS) the Services listed under an Order Form during the Term. Customer’s right to use the Services is limited to the location and other restrictions contained in an Order Form and the Documentation.
2.2 Any example language or agreements offered in connection with the Services (e.g., example confidentiality agreements or terms for visitors) are provided solely as examples for informational purposes and Customer is solely responsible for ensuring that any language or agreement it deploys in connection with the Services are appropriately customized and fit for Customer’s purposes. There is optional functionality in the Services that allows Customer to send emails. For every email sent in connection with the Services, Customer acknowledges and agrees that the Services may add a source identifier for the Services (e.g., a small logo, a “powered by” tagline or the like).
2.3 Notwithstanding anything to the contrary in this Agreement, 1UPAMS shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies, and 1UPAMS will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other 1UPAMS offerings, and (ii) disclose such data solely in aggregate or other de-identified forms in connection with its business.
2.4 1UPAMS, if it does so, shall provide the Hardware listed in the applicable Order Form. 1UPAMS shall pass through any and all warranties provided by the applicable manufacturer(s). The Hardware shall be subject to the shipping and returns policies set during the purchase.
3.1 As between the parties, Customer is responsible for, (i) all activities conducted under its User logins, (ii) obtaining and maintaining any Customer Equipment and any ancillary software and/or services needed to connect to, access, install (only for the portions of the Services that are available for download by 1UPAMS), or otherwise use the Services, except for any Hardware and, (iii) ensuring that it has the proper third-party licenses to make use of the Services with.
3.2 Customer shall use the Services solely for its internal business purposes, in compliance with applicable law (including any and all privacy and spam laws), and shall not: (a) resell, sublicense, lease, time-share or otherwise make the Services available to any third party (including customers of Customer); (b) process, send, or store infringing or unlawful material using the Services; (c) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Services or the data contained therein; (d) modify, copy or create derivative works based on the Services; (e) do any “mirroring" or “framing" of any part of the Services, or create Internet links to the Services which include log-in information, user names, passwords, and/or secure cookies; (f) reverse engineer the Services; (g) propagate any virus, worms, Trojan horses, or other programming routine intended to damage any system or data; (h) access or use the Services for the purpose of building a competitive product or service or copying its features or user interface; or (i) use the Services, or permit it to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication.
4.1 Customer shall retain all ownership rights in and to all Customer Data passing through or generated by the Services and Customer Confidential Information. 1UPAMS shall have and retain all ownership rights in the Services and all work provided by 1UPAMS during the course of providing Support to Customer (if any). 1UPAMS hereby grants Customer a royalty-free, fully paid-up, nonexclusive, license to use the foregoing on the same terms and conditions as the Services during the Term. 1UPAMS is not liable for any information stored or collected by the end-user after purchasing the service.
4.2 1UPAMS shall own any suggestions, enhancement requests, recommendations, or other feedback provided by Customer or its Users relating to the operation of the Services.
4.3 If you are a citizen of European Union countries or areas where distinct privacy laws are practised, you will be solely responsible for the shared data with 1UPAMS.
For any question regarding the collection or processing of your personal data, or for any request to exercise your rights concerning your personal data, you can contact us in writing at any time at info@1UPAMS.com.
5.1 The Fees for the Services are as stated in an Order Form. Unless otherwise stated in the applicable Order Form, Fees for the Initial Term are due and payable net thirty (30) days from the date of electronic delivery of the Services by 1UPAMS and are payable to 1UPAMS or Reseller, as applicable. Fees for any renewal Terms are due in accordance with the above, except that they are due net thirty days from the effective date of the renewal.
5.2 Upon execution of this Agreement, payment obligations under any Order Form are non-cancelable and, except as expressly provided in this Agreement, upon payment, all payments made by Customer are non-refundable. If Customer is paying by credit card, Customer shall provide 1UPAMS with all relevant information regarding Customer’s credit card prior to the provision of the Services. Customer represents and warrants to 1UPAMS that such information is true and that Customer is authorized to use such payment instrument.
Customers will promptly update their account information with any changes (for example, a change in Customer billing address or credit card expiration date) that may occur. Customer hereby authorizes 1UPAMS to bill Customer’s payment instrument in advance periodically in accordance with the terms described in the Services, and Customer further agrees to pay any charges so incurred. Any payment not received from Customer by the due date may accrue (except for amounts than under reasonable and good faith dispute) late charges, from the date such payment was due until the date paid. Failure to make payments in accordance with this Section may result in the suspension of Customer's ability to access or use the Services until payment is made. In the event Customer issues purchase orders in its normal course of business, Customer shall provide 1UPAMS with a purchase order upon execution of this Agreement, or Order Form, or if Customer does not provide 1UPAMS with such purchase order, Customer authorizes 1UPAMS to accept this Agreement in lieu of a purchase order.
5.3 Customer is responsible for monitoring Customer’s use of the Services. If a Customer is aware that its use of the Services is found to be greater than the number of locations licensed or other metrics licensed hereunder, Customer shall notify 1UPAMS or Reseller of such excess use. 1UPAMS or Reseller will invoice Customer for the additional fees for the period commencing on the date of excess use as reported above or as otherwise identified by 1UPAMS, through the remainder of the Term, and the unpaid Fees shall be payable in accordance with Section 5.1.
5.4 Unless otherwise provided, the fees do not include any Taxes. Customer is responsible for paying all Taxes, including, but not limited to sales, use, GST, and VAT taxes, associated with its purchases hereunder, excluding Taxes based on 1UPAMS’s or Reseller’s net income or property. If an invoice includes Taxes, Customer is responsible for such Taxes, unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority upon execution of this Agreement. Taxes not included on an invoice shall be the responsibility of the Customer to remit to the appropriate tax authorities as necessary.
As long as Customer is current on the payment of Fees, 1UPAMS shall provide Support in accordance with its standard support services.
7.1 Each party represents and warrants that (i) it has the legal power to enter into and perform under this Agreement; and (ii) it shall comply with all other applicable laws in its performance hereunder.
7.2 1UPAMS warrants to Customer that the Services will substantially conform in all material respects to the Documentation (“Services Warranty”). The Services Warranty does not apply when: (a) the Services that has been modified by any party other than 1UPAMS; or (b) the Services that has been improperly used and/or installed in a manner other than as authorized under the Agreement to the extent such modification(s) or improper installation cause the Services to be nonconforming. As Customer’s sole and exclusive remedy and 1UPAMS’s entire liability for any breach of the foregoing warranty, 1UPAMS will repair or replace any nonconforming Services so that it operates as warranted or, if 1UPAMS is unable to do so, terminate the license for such Services and return or request the Reseller to return the license fees paid for the non-conforming Services as Customer’s sole and exclusive remedy.
7.3 EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. 1UPAMS DOES NOT WARRANT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
8.1 As used herein, “Confidential Information" means all confidential and proprietary information of a party (“Disclosing Party") disclosed to the other party (“Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected under this Agreement), the Services, Documentation, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to Disclosing Party.
8.2 Receiving Party shall not disclose any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party's prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party's Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Notwithstanding the foregoing, 1UPAMS may use, for its business purposes, data generated by the use of the Services in an anonymized format. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party's Confidential Information.
8.3 If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if Disclosing Party wishes to contest the disclosure.
8.4 Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party's Confidential Information as long as it remains confidential and, upon request, return to the Disclosing Party or destroy (at the Disclosing Party's election) all materials containing such Confidential Information.
IN NO EVENT SHALL 1UPAMS HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.1 This Agreement commences on the Effective Date and continues until all licenses granted in accordance with this Agreement have expired or have been terminated. The term of each Order Form shall be as set forth therein, which shall automatically renew unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
9.2 A party may terminate this Agreement for the cause: (i) upon 30 days written notice to the other party of a material breach of this Agreement if such breach remains uncured at the expiration of such period; (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; and (iii) as otherwise provided herein.
9.3 Within thirty (30) days after the termination of this Agreement, Customer shall certify in writing to 1UPAMS that all copies of the Services (where applicable), Updates, and Documentation in any form, including partial copies within modified versions, have been destroyed or returned to 1UPAMS.
10.1 The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third-party beneficiaries to this Agreement.
10.2 Each party may include the other's name and logos in its customer or vendor lists and other materials.
10.3 No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by Customer and 1UPAMS. To the extent of any conflict between this Agreement and any other schedule or attachment, this Agreement shall prevail unless expressly stated otherwise. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or in any other order document (other than a statement of work, or other mutually executed order documents expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void. This Agreement, which includes all documents referenced herein, statements of work and attachments hereto, represents the entire agreement of the parties and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
10.4 No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as to best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.
10.5 Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to a natural disaster, actions or decrees of governmental bodies or communications line failure which (i) hinders, delays or prevents a party in performing any of its obligations, and (ii) is beyond the control of, and without the fault or negligence of, such party, and (iii) by the exercise of reasonable diligence such party is unable to prevent or provide against (“Force Majeure Event).
10.6 Neither party may assign its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other party. Any attempted assignment in breach of this Section shall be void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. For clarity, 1UPAMS may use subcontractors in the ordinary course of business.
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