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Last updated: August 11, 2020.
“Contract Start Date” means the commencement of the Initial Term, as set forth in the Order Form.
“Customer Content” means any information, data, images, and other content, in any form or medium, that is submitted by orcollected from or on behalf of Customer through the Services, including data and information collected from or pertaining toUsers, but excluding the Usage Data.
“Documentation” means the documentation that UpKeep makes generally available to its customers in any form related to theServices.
“Effective Date”means the date set forth in the Order Form.
“Fees” means the fees set forth in an Order Form for the Services.
“Hardware” means any hardware, such as machine sensors, that may be resold by UpKeep to Customer from the original selleror manufacturer (each, an “OEM”).
“Initial Term” means the initial term length for the Services set forth in the Order Form.
“Intellectual Property Rights” means all patent, copyright, trademark, trade secret, rights in know-how, business domain names,designs, and other proprietary and intellectual property rights recognized in any jurisdiction worldwide, including moral rights.
“Marks” means a party’s name, logo, and trademarks.
“Order Form” means the initial order for the Services, and any subsequent orders, entered into between the parties in writing(including via a web interface), specifying, among other things, the Services, Fees, payment terms, and other relevant terms asagreed to between the parties.
“Reports” means the tangible reports generated by Customer’s use of the Services.
“Services” means the products and services set forth in an executed Order Form that are made available by UpKeep toCustomer, including the UpKeep website, software, API, and mobile application, but excluding the Hardware.
“Services Term” is defined in Section 11.1 below.
“Term” is defined in Section 11.1 below.
“Third-Party Services” means any products or services provided by third parties that may be integrated with or accessedthrough the Services (i.e. NetSuite).
“Trial” is defined in Section 10.2. Use of the Services and the Hardware during the Trial Period (as defined in the Order Form,if applicable) is subject to the terms of this Agreement, as modified by Section 10.2.
“Usage Data” means any anonymized and aggregated data that is derived from the processing of the Customer Content or theaccess or use of the Services by or on behalf of Customer, that in no way identifies or refers to Customer or Users, and anystatistical or other analysis, information, or data based on or derived from the foregoing.
“User”means Customer’s employees, independent contractors, or other third parties who are authorized by Customer to accessand use the Services under the rights granted to Customer in the Agreement. The number of Users authorized to access theServices is set forth on the applicable Order Form.
2.1 Provision of the Services. During the Services Term and subject to the terms and conditions of the Agreement: (i)Customer may access and use the Services pursuant to the terms of the Agreement; and (ii) UpKeep hereby grants to Customera limited, non-exclusive, non-transferable (except as set forth in Section 12), non-sublicensable license to use and copy theDocumentation as reasonably required to access and use the Services. UpKeep will use commercially reasonable efforts tomaintain the security of the Services.
2.2 Modifications. UpKeep may revise or remove features, functionality, or service levels of the Services at any time. If anysuch revision or removal materially impacts Customer’s use of the Services, Customer may within thirty (30) days’ notice of therevision or removal terminate the applicable Order Form, without cause.
2.4 Subcontractors. Customer acknowledges and agrees that UpKeep may use subcontractors and other third-party serviceproviders in its provision of the Services, provided that UpKeep remains liable for such third party’s breach of the Agreement.
3.1 Use of the Services. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability,and appropriateness of all the Customer Content; (ii) use commercially reasonable efforts to prevent unauthorized access to, oruse of, the Services and notify UpKeep immediately of any such unauthorized access or use; and (iii) provide all necessary personnel and other resources, as reasonably requested by UpKeep, to enable UpKeep to fulfill its obligations hereunder.Customer is fully responsible and liable for all Users’ use of the Services.
3.2 Restrictions. Customer may use the Services solely as set forth in the Agreement and will not: (i) copy, modify, or createderivative works or improvements of the Services; (ii) reverse engineer, disassemble, decompile, modify, or alter the Services;(iii) remove, circumvent, disable, damage, or otherwise interfere with or disrupt the integrity or performance of the Services orany security-related features therein; (iv) input, upload, transmit, or otherwise provide to or through the Services, anyinformation or materials that are unlawful or injurious, or contain, transmit, send, or store material containing harmful computercode, files, scripts, agents, or programs; (v) rent, lease, loan, resell, sublicense, distribute, or otherwise commercially exploit ormake available the Services to any third party or use the Services for service bureau or time-sharing purposes; or (vi) develop orhave developed any products, services, or other materials that compete with the Services or otherwise compete with UpKeep’sbusiness. Each User’s right to access and use the Services through its individual account is personal to such User and suchaccount may not be shared with other individuals. A User account may only be reassigned to a new User who is replacing theapplicable User. Other than User log-in information, Customer will not upload any personal information, as may be defined byapplicable law.
3.3 Restrictions. Customer Content. Customer hereby grants to UpKeep a limited, non-exclusive, non-transferable (except as set forth inSection 12) right and license during the applicable Services Term to: (i) download, receive, collect, access, modify, copy, store,retain, and otherwise use the Customer Content in order to provide and support the Services in accordance with the Agreementand to internally develop and improve its products and services; and (ii) provide access to the Customer Content by Third-PartyServices selected by Customer or otherwise upon Customer’s consent or direction. Customer acknowledges and agrees that UpKeep has no responsibility for the services or content of any Third-Party Services and will have no liability for the acts oromissions of such Third-Party Services. Any activities related to Third-Party Services, and any terms associated with suchactivities, are solely between Customer and the applicable Third-Party Services.
3.4 Aggregate Data. Customer hereby grants to UpKeep a non-exclusive, worldwide, perpetual, irrevocable, fully paid,royalty-free right and license to collect, retain, store, use, modify, distribute, and disclose the Customer Content in aggregatedand anonymized form and any inferred insight relating to the Customer Content for any purpose whatsoever, provided that anysuch disclosure does not identify Customer or Users by name or description sufficient to identify Customer or Users as thesource or subject of such information, in whole or in part. “Effective Date”means the date set forth in the Order Form.
4.1 Fees. Customer will pay the Fees specified in the applicable Order Form. All Fees are quoted in United States Dollarsand are non-refundable except as otherwise specifically set forth in the Agreement. Unless otherwise stated in the Order Form,all Fees will be payable thirty (30) days from the invoice date. Any payment not received from Customer by the due date mayaccrue, at UpKeep’s discretion, late charges at the rate of one and a half percent (1.5%) of the outstanding balance per month,or at the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date fully paid.
4.2 Taxes. Fees are exclusive of all local, state, federal, and foreign taxes, levies, or duties of any nature (“Taxes”), andCustomer is responsible for payment of all Taxes, excluding only United States taxes based on UpKeep’s income. If UpKeephas the legal obligation to pay or collect Taxes for which Customer is responsible pursuant to this Section 4.2, the appropriateamount will be invoiced to and paid by Customer, unless Customer provides UpKeep with a valid tax exemption certificateauthorized by the appropriate taxing authority. Customer will indemnify, defend, and hold UpKeep, its officers, directors,consultants, employees, successors, and assigns harmless from all claims and liability arising from Customer’s failure to reportor pay any such Taxes.
4.3 Additional Charges. UpKeep may charge additional amounts for data storage that exceeds the then-current maximumcapacity, if any, available for the given Services. In the event Customer requests an additional number of Users of the Services,Customer shall pay to UpKeep any additional Fees for such Users as set forth in the Order Form or as otherwise mutuallyagreed to.
4.4 Audit. Upon UpKeep’s request, Customer shall certify in a signed writing that its and all Users’ use of the Services is infull compliance with the terms of the Agreement. UpKeep, or its authorized representative, may, upon ten (10) days’ priornotice, inspect and audit Customer’s records and use of the Services to confirm its compliance with the Agreement (includingthe identities of all Users). All such inspections and audits will be conducted during regular business hours and in a manner thatdoes not unreasonably interfere with Customer’s business activities. Customer is responsible for such audit costs only in theevent the audit reveals that Customer’s use is in violation of the Agreement, including underpayment of Fees.
5.1 Customer IP. As between Customer and UpKeep, Customer owns all right, title, and interest in and to: (i) the CustomerContent and Customer’s Marks; (ii) Customer’s Confidential Information; (iii) the Reports (excluding the UpKeep IP as definedbelow); and (iv) all Intellectual Property Rights in the foregoing (collectively, the “Customer IP”). Except as expressly set forthin the Agreement, no license or other rights to any of the Customer IP are granted to UpKeep, and all such rights are herebyexpressly reserved.
5.2 UpKeep IP. UpKeep owns all right, title, and interest in and to: (i) the Services, the Documentation, and UpKeep’sMarks, and any and all enhancements, improvements, developments, derivative works, or other modifications (including anychanges which incorporate any of Customer’s ideas, feedback, or suggestions) made or related to the Services or theDocumentation; (ii) the Usage Data; (iii) UpKeep’s Confidential Information; and (iv) all Intellectual Property Rights in theforegoing (collectively, the “UpKeep IP”). Except as expressly set forth in the Agreement, no license or other rights to any ofthe UpKeep IP are granted to Customer, and all such rights are hereby expressly reserved.
6.1 Confidential Information. As used herein, “Confidential Information” means all non-public information disclosed by aparty (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as“Confidential,” “Proprietary,” or the like and/or information that the Receiving Party should reasonably understand as beingconfidential or proprietary to the Disclosing Party given the nature of the information and the circumstances of the disclosure,including without limitation, the Agreement and the terms set forth in the Order Form (which will be deemed ConfidentialInformation of both parties), business and marketing plans, financial information, technology and technical information,designs, and business processes. Confidential Information will not include any information that: (i) is or becomes generallyknown to the public without the Receiving Party's breach of any obligation owed to the Disclosing Party; (ii) was in the rightfulpossession or known by the Receiving Party prior to receipt from the Disclosing Party without breach of any obligation owed tothe Disclosing Party; (iii) is received from a third party who obtained such Confidential Information without any third party'sbreach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without theReceiving Party's breach of any obligation owed to the Disclosing Party.
6.2 Protection. Each party will not disclose the other party’s Confidential Information, or use the other party’s Confidentialinformation, for any purpose other than to perform its obligations or exercise its rights under the Agreement, and will protectthe confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of itsown proprietary and confidential information of like kind, but in no event will either party exercise less than reasonable care inprotecting such Confidential Information. The Receiving Party may disclose Confidential Information to its employees, agents,contractors, Affiliates, and other representatives having a legitimate need to know, provided that such representatives are boundto confidentiality obligations no less protective of the Disclosing Party than this Section 6 and that the Receiving Party remainsresponsible for compliance by any such representative with the terms of this Section 6. Notwithstanding the foregoing, nothing herein shall be construed as limiting in any way UpKeep or its affiliates' media properties from reporting or commenting uponCustomer or its business or operations, provided that UpKeep does not provide such media properties’ reporters or editors withaccess to any of Customer’s Confidential Information
6.3 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the DisclosingParty, it will provide the Disclosing Party with prior written notice of such compelled disclosure and reasonable assistance (atDisclosing Party's cost) if the Disclosing Party wishes to contest the disclosure.
6.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of theDisclosing Party in breach of this Section 6, the Disclosing Party will have the right, in addition to any other remedies availableto it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other availableremedies are inadequate.
7.1 Mutual Warranties. Each party represents and warrants that: (i) it is duly organized, validly existing, and in good standingunder the laws of its jurisdiction of formation; (ii) it has full right, power, and authority to enter into and perform its obligationsunder the Agreement; (iii) the Agreement, when executed and delivered, will constitute a valid and binding obligation of suchparty and will be enforceable against such party in accordance with its terms; and (iv) the performance of its obligations underthe Agreement will not violate any applicable law, rule, or regulation, including those related to data privacy.
7.2 By Customer. Customer represents and warrants that its use of the Services, including the Customer Content provided inconnection with the Services, will not violate any applicable law, rule, or regulation, infringe any third party’s intellectualproperty, privacy, or publicity right, or cause a breach of any agreement with any third party.
7.3 By UpKeep. UpKeep represents and warrants that the Services will be provided in all material respects in accordancewith the Documentation and otherwise be performed in a manner consistent with generally accepted industry standards.Customer’s sole remedy and UpKeep’s sole obligation for any such failure will be for UpKeep to use commercially reasonableefforts to correct such non-compliance, provided that in the event such non-compliance cannot be corrected within thirty (30)days, Customer may terminate the Agreement and receive a prorated refund for any prepaid, unused Fees.
7.4 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, THE SERVICES, THEREPORTS, AND ALL RELATED DELIVERABLES AND SERVICES ARE PROVIDED “AS IS.” UPKEEP MAKES NOADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER INFACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. UPKEEP EXPRESSLYDISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. UPKEEP DOES NOT WARRANT THAT THE SERVICESARE ERROR-FREE OR WILL BE SECURE OR UNINTERRUPTED. ANY HARDWARE WARRANTY WILL BE ASDETERMINED BY THE OEM. UPKEEP WILL NOT BE LIABLE FOR ANY IMPACT TO THE SERVICES CAUSED BYTHE HARDWARE OR CUSTOMER’S MACHINES OR EQUIPMENT.
8.1 By UpKeep. Subject to the other provisions of this Section 8, UpKeep will defend, indemnify, and hold Customer and itsofficers, directors, consultants, employees, successors, and assigns (“Customer Indemnitees”) harmless against any and alllosses, damages, liabilities, and costs, including reasonable attorneys’ fees (“Damages”) incurred by Customer Indemniteesarising out of or relating to any third-party claim, suit, action, or proceeding (“Claims”) that allege: (i) UpKeep’s breach of anyof its representations, warranties, or obligations set forth in Sections 6 or 7.1 of the Agreement; and (ii) Customer’s use of theServices in compliance with the Agreement infringes any third party’s Intellectual Property Right (an “IP Claim”). Theforegoing obligation does not apply to any IP Claim to the extent arising out of or relating to: (a) modifications to the Servicesnot made or authorized by UpKeep; (b) materials supplied by or on behalf of Customer, including without limitation theCustomer Content; (c) combination of the Services with products or services, including any Third-Party Services andHardware; (d) designs or instructions provided by Customer to UpKeep; (e) Customer’s continued use of the allegedlyinfringing material after being notified of modifications that would have avoided such alleged infringement; or (f) Customer’suse of the Services not strictly in accordance with the Agreement.
8.2 Infringement Remedies. If UpKeep or a court or other body of competent jurisdiction determines that the Services is ormay be infringing, UpKeep may, at its option and expense: (i) replace or modify the Services to be non-infringing, providedthat such modification or replacement contains substantially similar features and functionality; (ii) obtain for Customer alicense to continue using the Services; or (iii) if neither of the foregoing is commercially practicable, terminate the Agreementand Customer’s rights hereunder and provide Customer a prorated refund for any prepaid, unused Fees. THE REMEDIES SETFORTH IN THIS SECTION 8 STATE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND UPKEEP’S SOLE ANDEXCLUSIVE LIABILITY IN RELATION TO AN IP CLAIM.
8.3 By Customer. Subject to the other provisions of this Section 8, Customer will defend, indemnify, and hold UpKeep andits officers, directors, consultants, employees, successors, and assigns (“UpKeep Indemnitees”) harmless against any and allDamages incurred by UpKeep Indemnitees arising out of or relating to a Claim that: (i) alleges Customer’s breach of any of itsrepresentations, warranties, or obligations set forth in Sections 3, 6, or 7 of the Agreement; and (ii) relates to the CustomerContent as used by UpKeep in accordance with the Agreement.
8.4 Procedure. Each indemnifying party’s obligations as set forth in this Section 8 are contingent on: (i) the indemniteeproviding the indemnifying party with prompt written notice of the Claim (and any information that may reasonably give rise toa Claim), but only if the indemnifying party is materially adversely prejudiced by failure to receive such notice; (ii) theindemnifying party having the right to defend the Claim at its own expense and with counsel of its choosing; (iii) theindemnifying party having the right, in its sole discretion, to settle the Claim so long as such settlement does not impose anymonetary or material non-monetary obligations on the indemnitee (other than indemnitee no longer using the Services, as thecase may be), and provided that the indemnitee will be included in any release language as part of any such settlement; and (iv)the indemnitee providing (at the indemnifying party’s expense) such assistance and information as the indemnifying party mayreasonably require to investigate, defend, or settle the Claim.egate Data. Customer hereby grants to UpKeep a non-exclusive, worldwide, perpetual, irrevocable, fully paid,royalty-free right and license to collect, retain, store, use, modify, distribute, and disclose the Customer Content in aggregatedand anonymized form and any inferred insight relating to the Customer Content for any purpose whatsoever, provided that anysuch disclosure does not identify Customer or Users by name or description sufficient to identify Customer or Users as thesource or subject of such information, in whole or in part.
9.1 Consequential Damages Exclusion. EXCEPT FOR: (i) A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITYOBLIGATIONS IN SECTION 6; (ii) EACH PARTY’S RESPECTIVE INDEMNIFICATION OBLIGATIONS IN THISAGREEMENT; OR (iii) INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE (THE “EXCLUSIONS”), NEITHERPARTY MAY BE HELD LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF GOOD WILL, BUSINESSINTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, LOSS OF CONTENT OR DATA, COST OF COVER, ORINDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OFTHE AGREEMENT.
9.2 Limitation of Liability. EXCEPT FOR THE EXCLUSIONS, UPKEEP’S MAXIMUM CUMULATIVE LIABILITYARISING FROM OR RELATING TO THE AGREEMENT FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THEFORM OF ANY CLAIM OR ACTION, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY,WILL EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO UPKEEP IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM. UPKEEP’S TOTALLIABILITY WITH RESPECT TO AN IP CLAIM UNDER SECTION 8.1 WILL NOT EXCEED THE GREATER OF (1) TWOMILLION DOLLARS ($2,000,000), OR (2) TWO TIMES THE TOTAL FEES PAID BY CUSTOMER TO UPKEEP IN THEPRIOR TWELVE (12) MONTH PERIOD.
10.1 Term. The Agreement begins on the Effective Date and, unless earlier terminated pursuant to the Agreement, willcontinue in effect for so long as there is an active Order Form (the “Term”). Unless otherwise stated in the applicable OrderForm, each Order Form will automatically renew for successive twelve (12) month periods (each, a “Renewal Term,” and theInitial Term and each Renewal Term, the “Services Term”), unless either party provides at least thirty (30) days’ prior writtennotice (email shall suffice) to the other party of its intent not to renew.
10.2 Trial. If applicable, during the Trial Period set forth in the Order Form, Customer may, for no Fees, evaluate theperformance and functionality of the Services and the Hardware (the “Trial”). Unless Customer has notified UpKeep in writing prior to the end of the Trial that it is terminating at the end of the Trial, the Initial Term set forth in the Order Form willautomatically commence, at which time UpKeep will automatically charge Customer for any applicable Fees related to theServices and the Hardware for the Initial Term in accordance with this Agreement. In the event Customer terminates the OrderForm at the end of the Trial and does not return the Hardware to UpKeep within thirty (30) days, Customer will be liable for theSubscription Fees and Hardware Fees set forth in the Order Form and Customer’s credit card on file will be automaticallycharged for such Fees. UPKEEP’S REPRESENTATIONS AND WARRANTIES UNDER SECTIONS 7 AND ITSINDEMNIFICATION OBLIGATIONS UNDER SECTION 8 WILL NOT APPLY TO CUSTOMER’S USE OF THESERVICES OR THE HARDWARE DURING THE TRIAL PERIOD. FOR THE TRIAL, CUSTOMER’S GENERALLIABILITY CAP UNDER SECTION 9.2 WILL BE THE AGGREGATE FEES THAT WOULD BE PAYABLE BYCUSTOMER FOR AN ANNUAL SUBSCRIPTION (AS SET FORTH IN THE APPLICABLE ORDER FORM) ANDUPKEEP WILL HAVE NO GENERAL LIABILITY.
10.3 Termination for Cause. Either party may terminate the Agreement or any Order Form with immediate effect, in whole orin part, by giving the other party prior written notice, if the other party: (i) commits a material breach of any of its obligationsunder the Agreement, which breach is not cured within thirty (30) days following receipt of written notice, or the parties agreecannot be cured within thirty (30) days; (ii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as theybecome due; (iii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject,voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iv) makes or seeksto make a general assignment for the benefit of its creditors; (v) applies for or has appointed a receiver, trustee, custodian, orsimilar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of itsproperty or business; or (iv) has wound up or liquidated its business, voluntarily or otherwise.
10.4 Termination or Suspension by UpKeep. UpKeep may terminate the Agreement or the applicable Order Form uponCustomer’s failure to make any payments due hereunder, and not disputed in good faith, within five (5) business days followingCustomer’s receipt of written notice regarding such failure to pay. In the event that UpKeep reasonably suspects Customer or aUser is in breach of Section 3.2 or any applicable laws, rules, or regulations, UpKeep may immediately terminate or suspend Customer’s or such User’s access to the Services without advanced notice, in addition to any other remedies as UpKeep mayhave.
10.5 Effects of Termination. Upon expiration or termination of the Agreement: (i) Customer will cease all use of theapplicable Services and delete, destroy, or return all copies of the applicable Documentation in its possession or control; (ii)Customer will be responsible for payment of any monies (including any Fees and expenses) due to UpKeep for any period priorto the effective date of such termination; and (iii) each party will return or destroy (and provide certification of such deletionupon request) any of the other party’s Confidential Information then in its possession, provided that UpKeep may retain onecopy of the Customer Content and Customer’s Confidential Information solely for archival purposes or compliance with anylegal requirement in relation to the retention of records. Notwithstanding the foregoing, UpKeep has no obligation to retain theCustomer Content after termination of the Agreement.
10.6 Surviving Provisions. Sections 1, 3.2, 4, 5, 6, 7.4, 8, 9, 10.5, 10.6 and 11 (together with all other provisions, includingwithout limitation, all Order Forms, that may be reasonably interpreted as surviving termination or expiration of the Agreement)will survive the termination or expiration of the Agreement.
11.1Publicity. UpKeep may include Customer on its customer lists. Any other use of a party’s Marks is subject to the otherparty’s prior consent, in each instance. All use of a party’s Marks will be in accordance with its trademark guidelines, ifprovided.
11.2 No Waiver. The Agreement may not be altered, amended, or modified in any way except by a writing signed by bothparties. The failure of a party to enforce any provision of the Agreement will not be construed to be a waiver of the right of suchparty to thereafter enforce that provision or any other provision or right.
11.3 Severability. In the event that any provision of the Agreement is determined to be invalid, illegal, or unenforceable by acourt of competent jurisdiction, the rest of the Agreement will remain in full force and effect.
11.4 Governing Law. The Agreement will be interpreted, construed, and enforced in all respects in accordance with the lawsof the State of California, without reference to its choice of law rules and not including the provisions of the 1980 U.N.Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusivejurisdiction and venue of the federal, state, and local courts in Los Angeles, California in connection with any action arising outof or in connection with the Agreement.
11.5 Relationship. UpKeep and Customer are independent contractors and the Agreement will not establish any relationship ofpartnership, joint venture, employment, franchise, or agency between UpKeep and Customer. Neither party has any right orauthority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other party,whether express or implied, or to bind the other party in any respect whatsoever. The Agreement does not confer any benefitson any third party unless expressly stated therein.
11.6 Force Majeure. Except for Customer’s payment obligations, neither party will be liable for failure to perform or delay inperforming any obligation under the Agreement if such failure or delay is due to fire, flood, earthquake, strike, war (declared orundeclared), embargo, blockade, legal prohibition, governmental action, riot, insurrection, epidemic or pandemic, damage,destruction, power outage, telephone outage, internet access provider failure, or any other similar cause beyond its control.
11.7 Assignment. Neither party may assign or delegate its rights, duties, and obligations under the Agreement without theother party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assignthe Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale ofassets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under theAgreement; provided that in the event Customer assigns the Agreement to a competitor of UpKeep (as reasonably determinedby UpKeep), UpKeep may immediately terminate the Agreement. Subject to the foregoing, the Agreement will bind and inureto the benefit of the parties and their respective successors and permitted assigns. 7
11.8 Notices. Any notice required or permitted by the Agreement will be in writing and will be sent by facsimile, email,courier, or personal delivery, if to Customer then at the address provided on the Order Form, and if to UpKeep then at 1100Glendon Ave Suite 715 Los Angeles CA 90024, with Attention to Legal Department, or at such other address for which suchparty gives notice hereunder. Notice is effective upon receipt. Notwithstanding the foregoing, Customer consents to receiveelectronic communications that may be sent by UpKeep (including through the Services, such as posting on Customer’saccount) and any such communication will constitute notice under this Section 220.127.116.11Entire Agreement. The Agreement constitutes the entire agreement and supersedes all prior or contemporaneous oral orwritten agreements regarding the subject matter hereof. With the exception of an Order Form, any purchase order, written termsor conditions, or other document that Customer sends to UpKeep (whether prior to or after execution of the Agreement) thatcontains terms that are different from, in conflict with, or in addition to the terms of the Agreement are hereby rejected and willbe void and of no effect.