These Terms and Conditions are incorporated into and made a part of the Master Services Agreement between UpCity and Customer.

1. UpCity Employees.

UpCity will designate employees that it determines, in its sole discretion, to be capable of performing the Services set out in the Services and Payment Schedule.

2. Customer Obligations.

The Customer shall:
(a) require that the Customer Contract Manager respond promptly to any reasonable requests from UpCity for instructions, information, or approvals required by UpCity to provide the Services;
(b) cooperate with UpCity in its performance of the Services and provide access to Customer’s information and data as required to enable UpCity to provide the Services.; and
(c) take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in UpCity’s provision of the Services.

3. Fees.

By agreeing to the terms of the Master Customer Agreement and the Services and Payment Schedule, Customer agrees to pay UpCity the Fees indicated for such Services. Payments will be charged on the day the Services go into effect and continue until Services are cancelled pursuant to the terms herein in accordance with the payment terms described in the Services and Payment Schedule. Customer agrees that periodic payments will continue to be charged to Customer’s credit card on a recurring basis. The amount of the recurring charge will be the then-current Fee applicable to the Services selected. Customer acknowledges that the amount of the recurring charge may increase if the Fee increases in accordance with the terms of the Services and Payment Schedule.

4. Cancellation.

All cancellations or modifications of Services must be received in writing by email (support@UpCity.com) or via the UpCity Partner Portal at www.app.upcity.com/login.

5. Late Payments.

All late payments shall bear interest at the lesser of the rate of 7% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse UpCity for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.

6. Failure to Pay.

If Customer’s payment method fails or if Customer’s account is past due or any Fees are unpaid, UpCity shall have the right to either suspend or terminate the Services. Any such suspension or termination will result in the cancellation of any promotional programs applicable to the Services. Customer agrees to submit any disputes regarding any charge to Customer’s account in writing to UpCity within sixty (60) days of such charge, otherwise such dispute will be waived and such charge will be final and not subject to challenge.

7. Taxes.

Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder; provided, that in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, UpCity’s income, revenues, gross receipts, personnel, or real or personal property, or other assets.

8. Limited Warranty and Limitation of Liability.

UpCity warrants that it shall perform the Services in accordance with the terms and subject to the conditions set out in the Services and Payment Schedule and this Agreement. UpCity’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty shall be to use reasonable commercial efforts to cure any such breach. The foregoing remedy shall not be available unless Customer provides written notice of such breach within 10 days after delivery of such Services or Deliverables to Customer. UPCITY MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN THIS PARAGRAPH 8. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED. CUSTOMER ACCEPTS THE SERVICES, AND ANY RELATED SOFTWARE, “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) UPCITY HAS NO OBLIGATION TO INDEMNIFY OR DEFEND AGENCY OR RELATED PARTIES AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) UPCITY DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR RELATED SOFTWARE WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) UPCITY DOES NOT REPRESENT OR WARRANT THAT THE SERVICES, ANY RELATED SOFTWARE, OR SYSTEMS ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.

9. Intellectual Property.

All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names, source code, object code, and domain names, together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of the UpCity in the course of performing the Services, including any items identified as such in the Services and Payment Schedule (collectively, the “Deliverables”) shall be owned by UpCity. UpCity hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, non-transferable, non-sublicenseable, fully paid-up, royalty-free, revocable, worldwide basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.

10. Confidentiality.

From time to time during the term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within 30 days thereafter, is summarized in writing and confirmed as confidential (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Paragraph 9; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Paragraph 10 and Paragraph 11(d) only, Receiving Party’s Group shall mean the Receiving Party’s affiliates and their employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants, and financial advisors.

11. Term, Termination, and Survival.

(a) This Agreement shall commence as of the Effective Date and shall continue thereafter, until all Services have been cancelled as provided in this Paragraph 11(a), unless sooner terminated pursuant to Paragraph 11(b) or Paragraph 11(c) (the “Term”). If Customer terminates the Agreement prior to the expiration of the Term as a result of material breach by Customer, UpCity may assess and collect from Customer applicable Termination Charges. Termination Charges with respect to each Service terminated during the Term shall equal, in addition to all amounts payable by Customer, one-hundred percent (100%) of the remaining fees that would have been payable by Customer under the applicable if the terminated Service(s) had been provided until the end of the Term.

(i) Yearly Subscription Services. Yearly Subscription Services may be cancelled by Customer by giving written notice at least [7] days prior to the Renewal Date as set forth in the Services and Payment Schedule. If the Customer fails to give timely written notice of intent to cancel such Services, the Yearly Subscription Services shall be automatically extended for further one-year terms unless Customer gives written notice to UpCity at least [7] days before the expiration of the then current renewal term.

(ii) Monthly Subscription Services. Monthly Subscription Services may be cancelled by Customer by giving written notice at least [7] days prior to the Renewal Date as set forth in the Services and Payment Schedule. If the Customer fails to give timely written notice of intent to cancel such Services, the Monthly Subscription Services shall be automatically extended for further one-month terms unless Customer gives written notice to UpCity at least [7] days before the expiration of the then current renewal term.

(iii) White Label Services Six Month Commitment. Customer may cancel White Label Services by giving written notice at any time after the end of the first six (6) month period beginning on the Effective Date (the “Commitment Period”) the White Label Services Six Month Commitment shall be automatically extended for further a six month term unless Customer gives written notice to UpCity at least [7] days before the expiration of the then current renewal term.

(b) Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party:
(i) Breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach.
(ii) Becomes insolvent or admits its inability to pay its debts generally as they become due.
(iii) Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven days or is not dismissed or vacated within 45 days after filing.
(iv) Is dissolved or liquidated or takes any corporate action for such purpose.
(v) Makes a general assignment for the benefit of creditors.
(vi) Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Notwithstanding anything to the contrary in Paragraph 11(a), UpCity may terminate this Agreement on written notice, by electronic mail, if Customer fails to pay any amount when due hereunder and such failure continues for 5 days after Customer’s receipt of written notice of nonpayment. Notwithstanding any provision to the contrary, Customer’s obligation to pay all Fees due to UpCity under this Agreement shall not terminate until the expiration of Term.
(d) The rights and obligations of the parties set forth in Paragraphs 8 through and including 12, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement, and with respect to Confidential Information that constitutes a trade secret under applicable law, the rights and obligations set forth in Paragraph 10 hereof will survive such termination or expiration of this Agreement until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of the Receiving Party or the Receiving Party’s Group.

12. Limitation of Liability.

IN NO EVENT SHALL UPCITY BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT UPCITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL UPCITY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO UPCITY PURSUANT TO THIS AGREEMENT IN THE LAST 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

13. Entire Agreement.

The Master Services Agreement, including and together with the Services and Payment Schedule, the Terms and Conditions, exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Services and Payment Schedule, the terms and conditions of this Agreement shall supersede and control.

14. Notices.

All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Paragraph 14). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Paragraph 14.
Notice to Customer: At the address listed on page 1 of the Master Service Agreement

Notice to UpCity: UpCity, Inc.
180 North LaSalle Street, Suite 2100 
Chicago, Illinois 60601
Attention: _________________

15. Severability.

If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction; provided, however, that if any fundamental term or provision of this Agreement (including Paragraphs 8 through and including 12), is invalid, illegal, or unenforceable, the remainder of this Agreement shall be unenforceable]. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the court may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

16. Amendments.

No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized representative of each Party.

17. Waiver.

No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

18. Assignment.

Customer shall not assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of UpCity. Any purported assignment or delegation in violation of this Paragraph 18 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. UpCity may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of UpCity’s assets without Customer’s consent. For purposes of this Agreement, any change of control of Customer shall be deemed an “assignment” of this Agreement.

19. Successors and Assigns.

This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.

20. Relationship of the Parties.

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

21. No Third-Party Beneficiaries.

This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

22. Choice of Law.

This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the State of Illinois, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Illinois.

23. Choice of Forum.

Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the US District Court for the Northern District of Illinois or, if such court does not have subject matter jurisdiction, the courts of the State of Illinois sitting in Cook County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the US District Court for the Northern District of Illinois or if such court does not have subject matter jurisdiction, the courts of the State of Illinois sitting in Cook County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

24. WAIVER OF JURY TRIAL.

EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.

25. Counterparts.

This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Paragraph 14, a signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

26. Headings.

The headings of Paragraphs and any other section are included solely for convenience. If a conflict exists between any heading and the text of this Agreement, the text shall control.