Terms & Conditions
These Terms and Conditions are entered into between UpCity, Inc. (“UpCity”) and Customer. UpCity and Customer may execute one or more Service and Fee Schedules (each a “Fee Schedule”) setting forth the products and services (the “Services”) to be provided by UpCity, the fees to be paid by Customer and the duration of the engagement. These Terms and Conditions shall govern all such Fee Schedules. These Terms and Conditions and each Fee Schedule executed by the parties may sometimes collectively be referred to as the “Agreement.” Notwithstanding the foregoing, in the event that Customer entered into a Master Service Agreement or otherwise agreed to terms and conditions with UpCity prior to June 1, 2020 in connection with having UpCity provide Services or access to Software, and provided that Customer has not, subsequent to June 1, 2020 executed a new Fee Schedule for such Services or access to the Software, then these Terms and Conditions do not apply and your relationship remains subject to the terms and conditions located at https://www.upcity.com/terms/terms012015/
Customer’s ability to receive Services from UpCity and its participation in the UpCity Marketplace is dependent upon Customer’s compliance with the terms of this Agreement and the provisions of the UpCity Integrity Policy located at https://upcity.com/providers/marketplace/community-guidelines/. The success of the UpCity Marketplace is dependent on UpCity’s ability to help businesses identify trustworthy service providers. That trust is built on the credibility and recommendability of the providers, such as Customer, who participate in the UpCity community. Any violation of the provisions of the Integrity Policy shall be deemed to be a violation of this Agreement.
1. Services And Deliverables.
UpCity will provide Services to Customer as set forth in each applicable Fee Schedule. The Services may include providing Customer with access to and use of UpCity’s proprietary software (the “Agency Software”). Customer shall not use the Agency Software for purposes of benchmarking, collecting and publishing data or analysis relating to the performance of the Agency Software, or developing a product that is competitive with the Agency Software. Customer shall not
- modify, alter, enhance or make derivative works of the Agency Software,
- reverse engineer, reverse assemble, disassemble or decompile the Agency Software,
- copy, rent or lease the Agency Software,
- represent that it possess any proprietary interest in the Agency Software or
- directly or indirectly, take any action to contest UpCity’s intellectual property rights in the Agency Software.
2. Customer Obligations.
The Customer shall:
- designate a Customer Contact in each Fee Schedule and require that the Customer Contact respond promptly to any reasonable requests from UpCity for instructions, information, or approvals required by UpCity to provide the Services;
- 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;
- take all steps necessary, including obtaining any required licenses or consents, to prevent Customer caused delays in UpCity’s provision of the Services;
- ensure that the Client Site (as identified in the applicable Fee Schedule)
does not contain, advertise, link to or otherwise be related to content that
- is obscene, defamatory, libelous, slanderous, profane, indecent or unlawful;
- infringes or misappropriates third party intellectual property rights (including, but not limited to, copyrights, trademarks, service marks or any other proprietary, publicity or privacy right);
- constitutes “hate speech”, whether directed at an individual or a group, and whether based upon the race, sex, creed, national origin, religious affiliation, sexual orientation or language of such individual or group;
- promotes or contains viruses, worms, corrupted files, cracks or other materials that are intended to or may damage or render inoperable software, hardware or security measures; or
- facilitates, promotes or forwards illegal contests, pyramid schemes or chain letters.
3. Term; Termination
This Agreement shall be effective as of Customer’s acceptance of these Terms and Conditions and, except as otherwise provided for herein, shall remain in effect until all mutually executed Fee Schedules have expired or are terminated pursuant to terms of this Agreement. In the event that either party believes that the other has materially breached any obligations under this Agreement, such party shall so notify the breaching party in writing. The breaching party shall have ten (10) days from the receipt of notice to cure the alleged breach and to notify the non-breaching party in writing of such cure. If the breach is not cured to the reasonable satisfaction of the non-breaching party within such ten (10) day period, the non-breaching party shall have the right to immediately terminate this Agreement. If UpCity terminates the Agreement or any Fee Schedule due to a breach by Customer, Customer shall be obligated to pay, as liquidated damages and not as a penalty, all amounts that would have been due under each Fee Schedule had such Fee Schedule not been terminated.
Subject to the terms of this Agreement, Customer agrees to pay UpCity the fees as set forth in each applicable Fee Schedule. Payments will be charged on the day the Services go into effect and continue until Services are cancelled pursuant to the terms of this Agreement and in accordance with the payment terms described in the applicable Fee Schedule. Customer agrees that periodic payments will continue to be charged to Customer’s credit card on a recurring basis. Notwithstanding the foregoing or any provision in this Agreement to the contrary, the amount of the recurring charge for any Services as set forth in a Fee Schedule may be increased to match the then-current fee applicable to the Services selected by Customer. In the event that Customer disputes any invoice or charge, Customer shall notify UpCity in writing of such dispute within sixty (60) days of date of the invoice or charge. In the absence of such notice, any dispute shall be waived and the invoice or charge will be final and not subject to challenge. Fees not paid when due shall accrue interest at the rate of 1.5% per month or the highest rate permissible under applicable law.
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.
6. Limited Warranty; Disclaimer Of Warranties;
UpCity warrants that it shall perform the Services in accordance with the terms of 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 6. 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:
- UpCity has no obligation to indemnify or defend agency or related parties against claims related to infringement of intellectual property;
- UpCity does not represent or warrant that the services or related software will perform without interruption or error; and
- 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. upcity makes no warranty or claim as to any benefits that may be derived by customer in connection with customer’s receipt of services provided hereunder.
7. 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 (collectively, the “Deliverables”) shall be owned by UpCity. During the Term and upon payment by Customer of all amounts due under this Agreement, UpCity hereby grants Customer a worldwide revocable, non-exclusive, non-transferrable, non-sublicensable, limited license to use utilize the Services to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.
In connection with entering into and performing under this Agreement, each party may receive or have access to commercially valuable technical and non-technical confidential or proprietary information of the other party, including information in whatever form, relating to the business of such party that is not generally known or available to others, including but not limited to, source code and documentation for software, trade secrets, know how, customer lists, pricing strategies, payment terms, this Agreement, marketing and business plans, information concerning such party’s vendors, and such party’s contemplated plans, strategies and prospects (“Confidential Information”). In addition to the foregoing, each party recognizes that the other party may have received and in the future may receive confidential or proprietary information of a third party (“Third Party Confidential Information”). Any Third Party Confidential Information disclosed by one party to the other party shall be deemed to be the disclosing party’s Confidential Information. Except as expressly and unambiguously allowed herein, the receiving party will hold in confidence and not disclose any Confidential Information of the disclosing party and will similarly bind its employees and agents. Each party acknowledges and agrees that any Confidential Information received or obtained from the other party will be the sole and exclusive property of the other party and may not be used, disseminated or disclosed except as may be necessary to perform the obligations required under this Agreement or as may be required by law. If disclosure is required by law, then, to the extent permitted by law, the party required to disclose Confidential Information will provide notice to and shall reasonably cooperate with the other party (at the other party’s request and expense) so that the other party may preserve the confidentiality of the Confidential Information to the extent reasonably possible. Notwithstanding the foregoing, Confidential Information shall not include, and neither party will be liable for disclosure of, any information received by the receiving party under this Agreement if the information:
- is or becomes generally available to or known to the public through no wrongful act of the receiving party;
- was previously known by the receiving party through no wrongful act of receiving party;
- was independently developed by the receiving party without reference to the Confidential Information; or
- was lawfully disclosed to the receiving party by a third party under no obligation of confidentiality to the other party.
9. 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.
10. Entire Agreement.
These Terms and Conditions and each Fee Schedule constitute 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 these Terms and Conditions and any mutually executed Fee Schedule, these Terms and Conditions shall supersede and control.
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 11). 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
- on receipt by the receiving Party; and
- if the Party giving the Notice has complied with the requirements of this Paragraph 11.
Notice to Customer: At the address listed on page 1 of the applicable Fee Schedule
Notice to UpCity: UpCity, Inc.
180 North LaSalle Street, Suite 2100
Chicago, Illinois 60601
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, 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.
UpCity may amend these Terms and Conditions by publishing such amendments at https://www.upcity.com/terms/terms012015/ (or any successor site thereto). Customer’s continued use of the products and services provided under this Agreement shall be deemed to be Customer’s consent to such modified terms.
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.
15. Construction of Agreement.
Each party and its counsel have participated fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement.
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 16 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.
17. 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.
18. 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.
19. 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.
20. Jurisdiction and Governing Law.
Each party consents to the exclusive personal jurisdiction of the state and federal courts located in Cook County, Illinois and agrees that any claim against the other arising from or in connection with this Agreement shall be brought in such courts. The rights and obligations of the parties under this Agreement shall be governed by and construed under the laws of the state of Illinois without reference to conflict of laws principles.
21. Waiver of Jury Trial.
Each party acknowledges that any controversy that may arise under 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 or the transactions contemplated hereby.
22. Attorneys’ Fees.
In the event that UpCity engages counsel to assist in enforcing any of its rights under this Agreement and regardless of whether UpCity actually initiates litigation in connection therewith, UpCity shall be entitled to recover from Customer and Customer shall pay to UpCity all such legal fees and costs incurred by UpCity.
If Customer chooses to provide UpCity with ideas or suggestions regarding any UpCity product or service, Customer agrees that UpCity is free to use any such ideas and suggestions for any purpose, including, without limitation, developing, improving and marketing products and services, without any liability or payment of any kind to Customer.
24. Force Majeure.
UpCity shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, pandemic, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of UpCity.
Any provisions of this Agreement that contemplates continuing effectiveness after the expiration or termination of the Agreement, including but not limited to the provisions of Paragraph 7 (Intellectual Property), Paragraph 8 (Confidentiality), Paragraph 9 (Limitation of Liability) and Paragraph 20 (Jurisdiction and Governing Law), Paragraph 21 (Waiver of Jury Trial) and Paragraph 22 (Attorneys’ Fees) shall survive expiration or termination of this Agreement
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.