UpKeep Technologies, Inc. Terms of Use

Last updated: November 25, 2020.

By signing an Order Form, or accessing or using the services provided by UpKeep Technologies, Inc. (“UpKeep”), you agree, on behalf of you and your company (“Customer”), to be bound by and to comply with these Terms of Use (together with an Order Form, the “Agreement”). For good and valuable consideration, the receipt of which is acknowledged by each party, the parties agree as follows: 

1.     Definitions.

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 or collected from or on behalf of Customer through the Services, including data and information collected from or pertaining to Users, but excluding the Usage Data.

Documentation” means the documentation that UpKeep makes generally available to its customers in any form related to the Services.

Effective Date” means the date set forth in the Order Form.

Fees” means the fees set forth in an Order Form for the Services and Professional Services, if applicable.

Hardware” means any hardware, such as machine sensors, that may be resold by UpKeep to Customer from the original seller or 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 as agreed to between the parties.

Professional Services” means any professional or consulting services that are ancillary to the Services rendered by UpKeep to Customer, but specifically excluding any support and maintenance provided hereunder.

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 to Customer, including the UpKeep website, software, API, and mobile application, but excluding the Hardware.

Services Term” is defined in Section 10.1 below.

Term” is defined in Section 10.1 below.

Third-Party Services” means any products or services provided by third parties that may be integrated with or accessed through 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 the access or use of the Services by or on behalf of Customer, that in no way identifies or refers to Customer or Users, and any statistical 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 access and use the Services under the rights granted to Customer in the Agreement. The number of Users authorized to access the Services is set forth on the applicable Order Form.

2.     The Services.

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 Customer a limited, non-exclusive, non-transferable (except as set forth in Section 11), non-sublicensable license to use and copy the Documentation as reasonably required to access and use the Services. UpKeep will use commercially reasonable efforts to maintain 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 any such revision or removal materially degrades Customer’s use of the Services, Customer may within thirty (30) days’ notice of the revision or removal terminate the applicable Order Form, without cause. UpKeep will use commercially reasonable efforts to notify Customer of any changes to the Services via email and/or by posting such changes to UpKeep’s website.

2.3    Privacy Policy. UpKeep’s privacy policy (located at https://onupkeep.com/privacy) is incorporated herein by reference. UpKeep reserves the right to modify its privacy policy in its reasonable discretion from time to time.

2.4    Subcontractors. Customer acknowledges and agrees that UpKeep may use subcontractors and other third-party service providers in its provision of the Services, provided that UpKeep remains liable for such third party’s breach of the Agreement.

3.     Customer’s Responsibilities.

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, or use 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. In the event Customer suspects a data or security breach, Customer may refer to the Privacy Policy for notification procedures.    

3.2    Restrictions. Customer may use the Services solely as set forth in the Agreement and will not: (i) copy, modify, or create derivative 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 or any security-related features therein; (iv) input, upload, transmit, or otherwise provide to or through the Services, any information or materials that are unlawful or injurious, or contain, transmit, send, or store material containing harmful computer code, files, scripts, agents, or programs; (v) rent, lease, loan, resell, sublicense, distribute, or otherwise commercially exploit or make available the Services to any third party or use the Services for service bureau or time-sharing purposes; or (vi) develop or have developed any products, services, or other materials that compete with the Services or otherwise compete with UpKeep’s business. Each User’s right to access and use the Services through its individual account is personal to such User and such account may not be shared with other individuals. A User account may only be reassigned to a new User who is replacing the applicable User. Other than User log-in information, Customer will not upload any personal information, as may be defined by applicable law.

3.3    Customer Content. Customer hereby grants to UpKeep a limited, non-exclusive, non-transferable (except as set forth in Section 11) 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 Agreement and to internally develop and improve its products and services; and (ii) provide access to the Customer Content by Third-Party Services 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 or omissions of such Third-Party Services. Any activities related to Third-Party Services, and any terms associated with such activities, 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 aggregated and anonymized form and any inferred insight relating to the Customer Content for any purpose whatsoever, provided that any such disclosure does not identify Customer or Users by name or description sufficient to identify Customer or Users as the source or subject of such information, in whole or in part.

4.     Fees & Payment.

4.1    Fees. Customer will pay the Fees specified in the applicable Order Form. All Fees are quoted in United States Dollars and 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 may accrue, 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”), and Customer is responsible for payment of all Taxes, excluding only United States taxes based on UpKeep’s income. If UpKeep has the legal obligation to pay or collect Taxes for which Customer is responsible pursuant to this Section 4.2, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides UpKeep with a valid tax exemption certificate authorized 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 report or pay any such Taxes.

4.3    Professional Services; Additional Charges. Unless otherwise mutually agreed upon and as applicable, Customer will pay the Professional Services Fees set forth in the Order Form within thirty (30) days of the invoice date. If Customer requests UpKeep to provide Professional Services at Customer’s location or any other location other than UpKeep’s offices, Customer will reimburse UpKeep for all reasonable travel and out-of-pocket expenses incurred by UpKeep. UpKeep will submit accurate and complete records to substantiate such expenses. UpKeep may charge additional amounts for data storage that exceeds the then-current maximum capacity, 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 mutually agreed 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 in full compliance with the terms of the Agreement. UpKeep, or its authorized representative, may, upon ten (10) days’ prior notice, inspect and audit Customer’s records and use of the Services to confirm its compliance with the Agreement (including the identities of all Users). All such inspections and audits will be conducted during regular business hours and in a manner that does not unreasonably interfere with Customer’s business activities. Customer is responsible for such audit costs only in the event the audit reveals that Customer’s use is in violation of the Agreement, including underpayment of Fees.

5.     Proprietary Rights.

5.1    Customer IP.  As between Customer and UpKeep, Customer owns all right, title, and interest in and to: (i) the Customer Content and Customer’s Marks; (ii) Customer’s Confidential Information; (iii) the Reports (excluding the UpKeep IP as defined below); and (iv) all Intellectual Property Rights in the foregoing (collectively, the “Customer IP”). Except as expressly set forth in the Agreement, no license or other rights to any of the Customer IP are granted to UpKeep, and all such rights are hereby expressly reserved.

5.2    UpKeep IP.  UpKeep owns all right, title, and interest in and to: (i) the Services, the Documentation, and UpKeep’s Marks, and any and all enhancements, improvements, developments, derivative works, or other modifications (including any changes which incorporate any of Customer’s ideas, feedback, or suggestions) made or related to the Services or the Documentation; (ii) the Usage Data; (iii) UpKeep’s Confidential Information; and (iv) all Intellectual Property Rights in the foregoing (collectively, the “UpKeep IP”). Except as expressly set forth in the Agreement, no license or other rights to any of the UpKeep IP are granted to Customer, and all such rights are hereby expressly reserved.

6.     Confidentiality.

6.1    Confidential Information. As used herein, “Confidential Information” means all non-public information disclosed by a party (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 being confidential 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 Confidential Information 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 generally known to the public without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (ii) was in the rightful possession or known by the Receiving Party prior to receipt from the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party who obtained such Confidential Information without any third party’s breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without the Receiving 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 Confidential information, for any purpose other than to perform its obligations or exercise its rights under the Agreement, and will protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event will either party exercise less than reasonable care in protecting 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 bound to confidentiality obligations no less protective of the Disclosing Party than this Section 6 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 6.

6.3    Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it will provide the Disclosing Party with prior written notice of such compelled disclosure and reasonable assistance (at Disclosing 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 the Disclosing Party in breach of this Section 6, the Disclosing Party will have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

7.     Representations & Warranties.

7.1    Mutual Warranties. Each party represents and warrants that: (i) it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation; (ii) it has full right, power, and authority to enter into and perform its obligations under the Agreement; (iii) the Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms; and (iv) the performance of its obligations under the 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 in connection with the Services, will not violate any applicable law, rule, or regulation, infringe any third party’s intellectual property, 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 and Professional Services, as applicable, will be provided in all material respects in accordance with 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 reasonable efforts 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, THE REPORTS, AND ALL RELATED DELIVERABLES AND SERVICES ARE PROVIDED “AS IS.” UPKEEP MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. UPKEEP EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. UPKEEP DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR WILL BE SECURE OR UNINTERRUPTED. ANY HARDWARE WARRANTY WILL BE AS DETERMINED BY THE OEM. UPKEEP WILL NOT BE LIABLE FOR ANY IMPACT TO THE SERVICES CAUSED BY THE HARDWARE OR CUSTOMER’S MACHINES OR EQUIPMENT.

8.     Indemnification.

8.1    By UpKeep. Subject to the other provisions of this Section 8, UpKeep will defend, indemnify, and hold Customer and its officers, directors, consultants, employees, successors, and assigns (“Customer Indemnitees”) harmless against any and all losses, damages, liabilities, and costs, including reasonable attorneys’ fees (“Damages”) incurred by Customer Indemnitees arising out of or relating to any third-party claim, suit, action, or proceeding (“Claims”) that allege: (i) UpKeep’s breach of any of its representations, warranties, or obligations set forth in Sections 6 or 7.1 of the Agreement; and (ii) Customer’s use of the Services in compliance with the Agreement infringes any third party’s Intellectual Property Right (an “IP Claim”). The foregoing obligation does not apply to any IP Claim to the extent arising out of or relating to: (a) modifications to the Services not made or authorized by UpKeep; (b) materials supplied by or on behalf of Customer, including without limitation the Customer Content; (c) combination of the Services with products or services, including any Third-Party Services and Hardware; (d) designs or instructions provided by Customer to UpKeep; (e) Customer’s continued use of the allegedly infringing material after being notified of modifications that would have avoided such alleged infringement; or (f) Customer’s use 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 or may be infringing, UpKeep may, at its option and expense: (i) replace or modify the Services to be non-infringing, provided that such modification or replacement contains substantially similar features and functionality; (ii) obtain for Customer a license to continue using the Services; or (iii) if neither of the foregoing is commercially practicable, terminate the Agreement and Customer’s rights hereunder and provide Customer a prorated refund for any prepaid, unused Fees. THE REMEDIES SET FORTH IN THIS SECTION 8 STATE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND UPKEEP’S SOLE AND EXCLUSIVE 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 and its officers, directors, consultants, employees, successors, and assigns (“UpKeep Indemnitees”) harmless against any and all Damages incurred by UpKeep Indemnitees arising out of or relating to a Claim that: (i) alleges Customer’s breach of any of its representations, warranties, or obligations set forth in Sections 3, 6, or 7 of the Agreement; and (ii) relates to the Customer Content 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 indemnitee providing the indemnifying party with prompt written notice of the Claim (and any information that may reasonably give rise to a Claim), but only if the indemnifying party is materially adversely prejudiced by failure to receive such notice; (ii) the indemnifying party having the right to defend the Claim at its own expense and with counsel of its choosing; (iii) the indemnifying party having the  right, in its sole discretion, to settle the Claim so long as such settlement does not impose any monetary or material non-monetary obligations on the indemnitee (other than indemnitee no longer using the Services, as the case 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 may reasonably require to investigate, defend, or settle the Claim.

9.     Limitations of Liability.

9.1    Consequential Damages Exclusion. EXCEPT FOR: (i) A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 6; (ii) EACH PARTY’S RESPECTIVE INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT; OR (iii) INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE (THE “EXCLUSIONS”), NEITHER PARTY MAY BE HELD LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF GOOD WILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, LOSS OF CONTENT OR DATA, COST OF COVER, OR INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE AGREEMENT.

9.2    Limitation of Liability. EXCEPT FOR THE EXCLUSIONS, UPKEEP’S MAXIMUM CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THE AGREEMENT FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, WILL NOT 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 TOTAL LIABILITY WITH RESPECT TO AN IP CLAIM UNDER SECTION 8.1 WILL NOT EXCEED THE GREATER OF (1) TWO MILLION DOLLARS ($2,000,000), OR (2) TWO TIMES THE TOTAL FEES PAID BY CUSTOMER TO UPKEEP IN THE PRIOR TWELVE (12) MONTH PERIOD.

10.     Term & Termination.

10.1    Term. The Agreement begins on the Effective Date and, unless earlier terminated pursuant to the Agreement, will continue in effect for so long as there is an active Order Form (the “Term”). The term of each Order Form will commence on the Contract Start Date. Unless otherwise stated in the applicable Order Form, each Order Form will automatically renew for successive twelve (12) month periods (each,  a “Renewal Term,” and the Initial Term and each Renewal Term, the “Services Term”), unless either party provides at least thirty (30) days’ prior written notice (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 the performance 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 will automatically commence, at which time UpKeep will automatically charge Customer for any applicable Fees related to the Services and the Hardware for the Initial Term in accordance with this Agreement. In the event Customer terminates the Order Form at the end of the Trial and does not return the Hardware to UpKeep within thirty (30) days, Customer will be liable for the Subscription Fees and Hardware Fees set forth in the Order Form and Customer’s credit card on file will be automatically charged for such Fees. UPKEEP’S REPRESENTATIONS AND WARRANTIES UNDER SECTION 7 AND ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 WILL NOT APPLY TO CUSTOMER’S USE OF THE SERVICES OR THE HARDWARE DURING THE TRIAL PERIOD. FOR THE TRIAL, CUSTOMER’S GENERAL LIABILITY CAP UNDER SECTION 9.2 WILL BE THE AGGREGATE FEES THAT WOULD BE PAYABLE BY CUSTOMER FOR AN ANNUAL SUBSCRIPTION (AS SET FORTH IN THE APPLICABLE ORDER FORM) AND UPKEEP 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 or in part, by giving the other party prior written notice, if the other party: (i) commits a material breach of any of its obligations under the Agreement, which breach is not cured within thirty (30) days following receipt of written notice, or the parties agree cannot be cured within thirty (30) days; (ii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become 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 seeks to make a general assignment for the benefit of its creditors; (v) applies for or has appointed 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; 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 upon Customer’s failure to make any payments due hereunder, and not disputed in good faith, within five (5) business days following Customer’s receipt of written notice regarding such failure to pay. In the event that UpKeep reasonably suspects Customer or a User 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 may have.

10.5    Effects of Termination.  Upon expiration or termination of the Agreement: (i) Customer will cease all use of the applicable 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 prior to the effective date of such termination; and (iii) each party will return or destroy (and provide certification of such deletion upon request) any of the other party’s Confidential Information then in its possession and UpKeep will delete the Customer Content, provided that UpKeep may retain one copy of the Customer Content and Customer’s Confidential Information solely for archival purposes or compliance with any legal requirement and in accordance with its data retention policy. Notwithstanding the foregoing, UpKeep has no obligation to retain the Customer 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, including without 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.     General Provisions.

11.1    Publicity. UpKeep may include Customer on its customer lists. Any other use of a party’s Marks is subject to the other party’s prior consent, in each instance. All use of a party’s Marks will be in accordance with its trademark guidelines, if provided.

11.2    No Waiver. The Agreement may not be altered, amended, or modified in any way except by a writing signed by both parties. The failure of a party to enforce any provision of the Agreement will not be construed to be a waiver of the right of such party 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 a court 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 laws of 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 exclusive jurisdiction and venue of the federal, state, and local courts in Los Angeles, California in connection with any action arising out of or in connection with the Agreement. 

11.5    Relationship. UpKeep and Customer are independent contractors and the Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between UpKeep and Customer. Neither party has any right or authority 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 benefits on 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 in performing any obligation under the Agreement if such failure or delay is due to fire, flood, earthquake, strike, war (declared or undeclared), 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 the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign the Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under the Agreement; provided that in the event Customer assigns the Agreement to a competitor of UpKeep (as reasonably determined by UpKeep), UpKeep may immediately terminate the Agreement. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.

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 10880 Wilshire Blvd., Suite 850, Los Angeles CA, 90024, with Attention to Legal Department, or at such other address for which such party gives notice hereunder. Notice is effective upon receipt. Notwithstanding the foregoing, Customer consents to receive electronic communications that may be sent by UpKeep (including through the Services, such as posting on Customer’s account) and any such communication will constitute notice under this Section 11.8.

11.9    Entire Agreement. The Agreement constitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof. With the exception of an Order Form, any purchase order, written terms or conditions, or other document that Customer sends to UpKeep (whether prior to or after execution of the Agreement) that contains terms that are different from, in conflict with, or in addition to the terms of the Agreement are hereby rejected and will be void and of no effect.