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GENERAL TERMS AND CONDITIONS OF SERVICES
These General Terms and Conditions of Services (“Terms”), including any referenced Supplemental Terms and any order form (“Order Form”) incorporating these Terms (collectively, the “Agreement”) are entered into between UptimeHealth Inc. (“Company”) and the Subscriber identified on the applicable Order Form or as otherwise provided to Company. Company and Subscriber are each referred to as a “Party” and collectively the “Parties”. Capitalized terms used but not defined in these Terms shall have the meanings given elsewhere in the Agreement.
1.1 General. Company offers a proprietary technology platform (e.g., website, mobile application) with an online marketplace to facilitate the provision of equipment and facility management services (“Marketplace”) (collectively, the “Services”), and on-site maintenance, repair, and support services (“Professional Services”) subject to Supplemental Terms (as defined below).
1.2 Access. Subject to an executed Order Form, and any restrictions herein or as set forth in Company’s policies, guides, and manuals as updated and amended from time to time (“Documentation”), Company grants Subscriber a limited, non-exclusive, non-transferable right for Subscriber’s Authorized Users to access and use the Services in accordance with these Terms and Documentation. The Services are made available to Subscriber via a portal. Subscriber shall (a) be responsible, at its expense, for obtaining its own Internet access, and any required hardware, software, or other technology to connect to the portal, (b) prevent unauthorized access to or use of the Services, nor disclose Company IP, and notify Company promptly of any such unauthorized access or use, and (c) use the Services only in accordance with applicable laws and Documentation. All rights not expressly granted to Subscriber are reserved by Company (and its licensors). There are no implied rights granted by Company.
1.3 Authorized Users. Subscriber may permit its employees, agents, and contractors (“Authorized Users”) to access certain functionality of the Services subject to applicable restrictions or limitations set forth herein, provided that: (a) Subscriber is responsible for all acts and omissions of Authorized Users, including Marketplace transactions and (b) each such Authorized User (i) is permitted to access the Services solely for Subscriber’s internal business purposes, during the Subscription Term and (ii) is bound by the restrictions and other limitations set forth in the Agreement. For clarity this Section 1.3 in no way limits any obligations Subscriber may have related to third parties under a separate written agreement with Company.
1.4 Restrictions. Subscriber and its Authorized Users shall not: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services, or Documentation, (b) modify, translate, or create derivative works based on the Services, (c) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services, (d) use, access, or otherwise exploit the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to the Services, (e) remove any proprietary notices or labels from the Services, or (f) use the Services to threaten, disrespect, harass, defame, or intimidate any third-party providers or other subscribers.
1.5 Professional Services. If indicated on an order form, Subscriber may elect to engage Company for the provision of certain Professional Services subject to additional terms (“Supplemental Terms”) and fees as specified on the order form or Documentation. If Subscriber requests the provision of Professional Services on-site at Subscriber’s facility, and Company agrees in writing to provide such Professional Services, Company shall bill and Subscriber agrees to pay any costs and expenses (including any travel expenses) related to the provision of Professional Services on-site. Subscriber’s execution of an order form for Professional Services constitutes Subscriber’s agreement to be bound to the Supplemental Terms and pay any fees relating to such Professional Services. If these Terms are inconsistent with such Supplemental Terms, the Supplemental Terms shall control with respect to such Professional Services. Company may add or discontinue offering any Professional Services, in whole or in part, in Company’s discretion, at any time unless expressly agreed otherwise in the Agreement.
2.1 Fees. In consideration for the rights granted, Subscriber will pay to Company, without offset or deduction, the fees and expenses described in an Order Form or Documentation. Unless otherwise provided in an Order Form, Company reserves the right to increase fees each Renewal Term by five percent (5%) or at the rate of increase in the Consumer Price Index, whichever is greater. Fees and expenses for the Initial Term are due upon execution of the Order Form. Thereafter, fees are payable within thirty (30) days or receipt of an invoice.
2.2 Taxes. All amounts due under any Order Form are non-cancellable, non-refundable, and exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind (whether foreign, federal, state, local or other) associated with the Agreement, the Services, the Professional Services, and Authorized Users’ access to and use of the Services and/or Professional Services. Subscriber shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on Company’s U.S. income), which may be invoiced by Company from time-to-time.
2.3 Payment Method. Subscriber shall make all payments hereunder using the payment method set forth in the Order Form. All payments shall be made in U.S. Dollars. Subscriber agrees to gross-up payments due to Company for any tax related withholding or deduction required by applicable laws, such that Company is paid the net amount contemplated under the applicable Order Form.
2.4 Late Payments. In addition to any other remedies available to Company hereunder, Subscriber shall pay interest on all late payments at a rate of 1.25% per month, calculated daily and compounded monthly. Subscriber will reimburse Company for all costs and expenses, including attorneys’ fees, incurred in collecting any unpaid amounts owed by Subscriber hereunder.
2.5 Evaluation Period. If Company offers Subscriber an evaluation period (may also be referred to as Learning Phase, Learning Period, or Pilot), once the evaluation period ends (as documented in an Order Form or as otherwise communicated by Company), Company will begin billing Subscriber’s applicable payment method at the rate and schedule (set forth in the Order Form) for a Subscription Term, unless Subscriber cancels at least three (3) days prior to the end of the evaluation period. The Agreement shall govern Subscriber’s evaluation period and any subsequent subscriptions.
3.1 Company IP. Subscriber acknowledges and agrees that as between Company and Subscriber, all right, title, and interest in the Company IP (including any related patent copyright, trademark, trade secret, intellectual property or other ownership rights) are and will remain the sole and exclusive property of Company (or its licensors). Any derivative works, modifications, suggestions, enhancements, or other feedback Subscriber provides to Company will be solely and exclusively owned by Company, and includes the right for Company to use, reproduce, disclose, publish, distribute, or otherwise exploit, in any manner. Trademarks, logos, and service marks displayed on the Services are registered and/or unregistered trademarks of Company, its licensors or content providers, or other third parties. As used herein, “Company IP” means all of Company’s proprietary technology (including the Services, Documentation, software, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) that Company makes available to Subscriber during the provision of services indicated on an applicable order form.
3.2 Subscriber Data. As between the Parties, except for the limited rights provided herein, Subscriber retains all right, title, and interest (including any and all intellectual property rights) in and to the Subscriber Data as provided to Company. Subscriber hereby grants to Company, its agents, and authorized partners a non-exclusive, worldwide, royalty-free right to use, copy, process store, transmit, distribute, perform and display, modify and create derivative works of the Subscriber Data to the extent necessary to provide the Services and/or Professional Services and to comply with applicable laws. Subscriber shall be solely responsible for ensuring that all Subscriber Data complies with applicable laws. “Subscriber Data” means electronic data and information submitted by or on behalf of Subscriber to the Service or collected and processed by or on behalf of Subscriber using the Service.
4.1 Marketplace Participant. Subscriber may access and use the Marketplace to communicate and engage third parties for the provision of technical, maintenance, and repair services. The terms of such transactions will be further specified in the Marketplace or such documentation provided by Company to Subscriber. These transactions are by and between the identified Marketplace participants (i.e. Subscriber and third-party provider). Company does not endorse, warrant, or guarantee any third-party products or services, including those offered or described in the Marketplace. Company may collect fees and commissions relating to such transactions, but is not responsible or liable for the acts or omissions of any Subscriber or Marketplace participant, their payment or performance obligations, or the benefits or losses associated with any transaction or hardware.
4.2 Third-Party Services. The Marketplace may include certain links to third-party websites for the purpose of Subscriber engaging a third-party provider. Company does not control or operate any such third-party website. Any information Subscriber uploads to a third-party website or provide to a third-party provider is subject to the policies and procedures of such third party, and not Company’s policies. Subscriber agrees that Company will not be responsible or liable for, and does not endorse any content, advertising, products or services provided on or through these third-party websites. Company does not make any representations or warranties as to (a) any API integrations with Subscriber’s or a third party’s services or products or (b) the security of any information (including, without limitation, credit card and other personal information) Subscriber might be requested to give to any third-party website or provider. Subscriber’s use of Company’s API integrations or third-party websites and services is at Subscriber’s sole risk.
4.3 Subscriber Responsibilities. The Marketplace provides Subscriber the opportunity to review the services and products provided by a third-party provider. Subscriber shall be solely responsible for the reviews it uploads to the Marketplace. Any reviews or ratings Subscriber uploads to the Marketplace shall be (a) based on Subscriber’s actual first-hand experience and (b) honest, truthful, and accurate. Subscriber shall not upload any review that Company deems libelous, harassing, obscene, defamatory, offensive, or infringing. Company, in its sole discretion, may remove any reviews or ratings once published to the Marketplace.
5.1 Subscription Term. Unless otherwise specified in an Order Form, the initial term of the Agreement shall commence on the effective date of the order form and continue for the period set forth in the order form, if no period is provided in the order form, the initial term shall continue for twelve (12) months following the effective date of the order form (the “Initial Term”). The Agreement shall thereafter automatically renew for successive renewal terms, equal to the period of the Initial Term (each a “Renewal Term”), unless either Party provides the other Party at least thirty (30) days’ advance written notice of its desire to not renew prior to the end of the then-current Term. The Initial Term and any Renewal Terms may be collectively and individually referred to as the “Subscription Term”.
5.2 Termination. Either Party may terminate the Agreement, including any active Order Form, for the uncured material breach of the other Party if the breaching Party fails to cure such breach within thirty (30) days of becoming aware of the breach, or as otherwise provided in the Agreement.
5.3 Termination for Insolvency. Company may terminate the Agreement (and any or all applicable Order Forms) immediately if Subscriber becomes the subject of any voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, liquidation, or composition for the benefit of credits, if such petition or proceeding is not dismissed within sixty (60) days of filing.
5.4 Other Terminations. Company may terminate the Agreement (and any or all applicable Order Forms), or suspend or terminate Subscriber’s access to the Services and Professional Services, at any time in its sole discretion, with or without notice, if (a) Subscriber is past due on any invoiced fees and fails to cure within ten (10) days’ notice, (b) Subscriber is in breach of the Agreement, or (c) Company has a good faith belief that any Authorized Users’ access or use of the Services violates law or regulation or is disrupting other subscribers’ access to or use of the Services.
5. Post Termination Obligations. Upon the termination or expiration of the Agreement and subject to payment of all amounts then due and owing, (a) Company will transfer a copy of Subscriber Data in Company’s possession or control to Subscriber within thirty (30) days following any termination or expiration (or otherwise upon Subscriber’s reasonable request). Company is not obligated to store any Subscriber Data for more than thirty (30) days following the termination or expiration of the Agreement. Company will delete any Subscriber Data in its control or possession thereafter, but may retain copies for archival purposes; and (b) Subscriber will (i) discontinue all access and use of the Services, and (ii) remain liable for all payments due to Company with respect to the period ending on the date of termination (including any fees and expenses that had not been invoiced prior to termination). Sections 2, 3.1, 5.5, 6, 7.2, 8, 9.2, and 10 will survive any termination or expiration of the Agreement.
6. Confidential Information. All confidential information will be held in confidence, and the receiving Party will take all steps reasonably necessary to preserve the confidentiality of the confidential information of the other Party. The disclosing Party's confidential information will not be used or disclosed by the receiving Party for any purpose except (a) as necessary to exercise rights or perform obligations under the Agreement, or (b) as required by law, provided that the other Party is given a reasonable opportunity to obtain a protective order. The receiving Party will limit its use of and access to the disclosing Party's confidential information to only those of its employees or representatives whose responsibilities require such use or access. The receiving Party will advise all such employees and representatives, before they receive access to or possession of any of the disclosing Party's confidential information, of the confidential nature of the confidential information and require them to abide by the terms of this Section. Either Party may disclose the Agreement to its actual or potential investors, creditors, professional advisors, or attorneys who are subject to a duty of confidentiality. Company’s confidential information includes the Services (and the data that is provided as part of the Services, but not any Subscriber provided data), Documentation, and the pricing under the Agreement.
7.1 Company Limited Warranty. Company warrants that it will provide the online platform and Marketplace (defined as “Services” above) in a competent manner. Company does not warrant that it will be able to correct all reported defects or that use of the Services will be uninterrupted or error free. Company retains the right to modify the Services, including the Company IP, in its sole discretion; provided that doing so does not have a material adverse impact on the Services. Company may pause or interrupt the Services at any time, and Subscriber should expect periodic downtime for updates to the Services.
7.2 Disclaimer. THE SERVICES ARE PROVIDED “AS IS” AND COMPANY MAKES NO ADDITIONAL REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM COMPANY IP. ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, OR NON-INFRINGEMENT.
8. Limitation of Liability. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF REVENUE, SAVINGS OR DATA) ARISING IN CONNECTION WITH THE AGREEMENT, INCLUDING COMPANY IP, PROFESSIONAL SERVICES, OR OTHERWISE, BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. A PARTY’S TOTAL AGGREGATE LIABILITY UNDER THE AGREEMENT, INCLUDING ALL ORDER FORMS WILL UNDER NO CIRCUMSTANCES EXCEED THE FEES ACTUALLY PAID BY THE SUBSCRIBER TO COMPANY DURING THE PRIOR TWELVE (12) MONTHS FROM THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATIONS OF LIABILITY WILL NOT APPLY TO PAYMENT OBLIGATIONS UNDER ANY ORDER FORM, UNAUTHORIZED USE OR DISCLOSURE OF COMPANY IP, OR SUBSCRIBER’S INDEMNIFICATION OBLIGATIONS IN SECTION 9.2. IF THE SERVICES OR PROFESSIONAL SERVICES ARE PROVIDED ON A TRIAL OR EVALUATION BASIS, SUBSCRIBER’S SOLE REMEDY IN CONNECTION THEREWITH WILL BE TERMINATION OF THE TRIAL OR EVALUATION PERIOD.
9.1 Company Indemnification. Subject to the terms and conditions herein, Company shall defend, indemnify, and hold harmless Subscriber and its directors, officers, and employees from and against any third-party claims, actions, proceedings, demands, lawsuits, damages, liabilities and expenses (including reasonable attorneys’ fees and costs)(collectively, “Claim(s)”) alleging that the Services, when used as authorized under these Terms, directly infringes a third party’s intellectual property. If Subscriber’s use of the Services is, or in Company’s opinion is likely to be, enjoined due to the type of infringement specified above, Company may, in its sole discretion: (a) substitute or modify the Services so that the Services become non-infringing without compromising material functionally; (b) procure for Subscriber the right to continue using the Services; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement (and applicable order form) and refund to Subscriber any pre-paid fees for the Services associated with the then-remaining Subscription Term. The foregoing indemnification obligation of Company shall not apply: (i) if the Services are modified without Company’s prior written approval; (ii) the Services are combined with services or processes not authorized by Company in writing; (iii) related to misuse of the Services; (iv) to any third-party components or Subscriber Data; or (v) if the infringement relates to Company’s compliance with specifications or other requirements of Subscriber. THIS SECTION 9.1 SETS FORTH SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY THIRD-PARTY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
9.2 Subscriber Indemnification. Subscriber shall defend, indemnify, and hold harmless Company and its shareholders, partners, members, directors, officers, employees, lenders, successors and assigns, from and against any and all Claims arising out of or relating to (a) Subscriber’s or any Authorized User’s use of the Services in violation of the terms and conditions herein or applicable law or (b) Subscriber’s service offerings or Subscriber Data.
9.3 Procedures. The obligations of each indemnifying party are conditioned upon receiving from the Party seeking indemnification: (a) prompt written notice of the Claim (but in any event notice in sufficient time for the indemnifying party to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (c) all reasonable necessary cooperation of the indemnified party, at indemnifying party’s expense.
10. 1 Support Services. Subscriber agrees and consents to Company accessing Subscriber’s account and/or creating duplicative or impersonating accounts for the provision of support services as described in an Order Form.
10.2 Connect Equipment Data. Subscriber agrees and consents to Company accessing data collect by any device or machinery that possesses the capability to send or receive data or commands through electronic means, either autonomously or through external control, to or from a centralized system, platform, or other devices, whether directly or indirectly (“Connected Equipment”). Subscriber grants Company the non-exclusive, perpetual, irrevocable, royalty-free right to use, analyze, reproduce, modify, adapt, publish, distribute, and display the data from Connected Equipment to utilize this data primarily for improving products, services, and overall platform performance. Connected Equipment data includes, but is not limited to, device maintenance information, performance metrics, and other relevant operational data.
10.3 Hosting Providers. Subscriber acknowledges that the Services are hosted by third-party hosting providers (the “Hosting Providers”). Company may changes its Hosting Providers at any time. Subscriber’s use of the Services is subject to any applicable restrictions or requirements imposed by the Hosting Providers. Notwithstanding any other provision of the Agreement, Company shall not be liable for any problems, failures, defects, or errors with the Services to the extent caused by the Hosting Providers. Subscriber acknowledges that the fees payable for the Services reflect the fact that Company is not responsible for the acts and omissions of the Hosting Providers.
10.4 Statistical Data. Company may analyze Subscriber Data, and data or other content or information of other clients, to create aggregated or anonymized statistics or data that do not identify Subscriber or any individual, and Company may during and after the Subscription Term use and disclose such statistics or data in its discretion, subject to applicable laws and regulations.
10.5 Publicity. Company may use Subscriber’s name and logo to issue press releases and on customer lists published on Company’s website and marketing materials.
10.6 Assignment. Neither Party may assign the Agreement or assign any of its rights, without the prior written consent of the other Party; provided, however, that either Party may assign its rights under the Agreement without the consent of the other Party in the event of a corporate reorganization, consolidation, merger, sale, or transfer of all or substantially all of its assets. Any purported assignment or delegation in violation of this paragraph is null and void. The Agreement will bind and inure to the benefit of each Party’s successor and permitted assigns.
10. 7 Notices. Subscriber agrees that an email to its email address on record will constitute formal notice under the Agreement.
10.8 Waiver. No waiver by either Party of any of the provisions of the Agreement is effective unless explicitly set forth in writing and signed by such Party.
10.9 Third-Party Beneficiaries. There are no third-party beneficiaries to the Agreement.
10.10 Force Majeure. Neither Party will be liable hereunder by reason of any failure or delay in the performance of its obligations under the Agreement on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, pandemics, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause that is beyond the reasonable control of either Party.
10.11 Governing Law; Venue. The laws of the State of Massachusetts will govern the Agreement and any dispute arising hereunder without giving effect to the choice of law provisions thereof. Subscriber hereby consents to jurisdiction and venue in any federal or state court located within the State of Massachusetts, and Subscriber shall not bring any suit, claim or other cause of action except in a court within the State of Massachusetts, USA.
10.12 Entire Agreement. Except as otherwise expressly provided in writing, the Agreement sets forth the entire agreement between Subscriber and Company regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter.
SUPPLEMENTAL TERMS FOR PROFESSIONAL SERVICES
UptimeHealth Inc. (“Company”) may offer optional, supplemental Professional Services as described in the Documentation. If Subscriber elects to use the supplemental Professional Services, these supplemental terms shall control with respect to such Professional Services (“Supplemental Terms”). Capitalized terms not defined in these Supplemental Terms have the meaning given elsewhere in the Agreement.
These General Terms and Conditions of Services (“Terms”), including any referenced Supplemental Terms and any order form (“Order Form”) incorporating these Terms (collectively, the “Agreement”) are entered into between UptimeHealth Inc. (“Company”) and the Subscriber identified on the applicable Order Form or as otherwise provided to Company. Company and Subscriber are each referred to as a “Party” and collectively the “Parties”. Capitalized terms used but not defined in these Terms shall have the meanings given elsewhere in the Agreement.
1. Nature of the Services
1.1 General. Company offers a proprietary technology platform (e.g., website, mobile application) with an online marketplace to facilitate the provision of equipment and facility management services (“Marketplace”) (collectively, the “Services”), and on-site maintenance, repair, and support services (“Professional Services”) subject to Supplemental Terms (as defined below).
1.2 Access. Subject to an executed Order Form, and any restrictions herein or as set forth in Company’s policies, guides, and manuals as updated and amended from time to time (“Documentation”), Company grants Subscriber a limited, non-exclusive, non-transferable right for Subscriber’s Authorized Users to access and use the Services in accordance with these Terms and Documentation. The Services are made available to Subscriber via a portal. Subscriber shall (a) be responsible, at its expense, for obtaining its own Internet access, and any required hardware, software, or other technology to connect to the portal, (b) prevent unauthorized access to or use of the Services, nor disclose Company IP, and notify Company promptly of any such unauthorized access or use, and (c) use the Services only in accordance with applicable laws and Documentation. All rights not expressly granted to Subscriber are reserved by Company (and its licensors). There are no implied rights granted by Company.
1.3 Authorized Users. Subscriber may permit its employees, agents, and contractors (“Authorized Users”) to access certain functionality of the Services subject to applicable restrictions or limitations set forth herein, provided that: (a) Subscriber is responsible for all acts and omissions of Authorized Users, including Marketplace transactions and (b) each such Authorized User (i) is permitted to access the Services solely for Subscriber’s internal business purposes, during the Subscription Term and (ii) is bound by the restrictions and other limitations set forth in the Agreement. For clarity this Section 1.3 in no way limits any obligations Subscriber may have related to third parties under a separate written agreement with Company.
1.4 Restrictions. Subscriber and its Authorized Users shall not: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services, or Documentation, (b) modify, translate, or create derivative works based on the Services, (c) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services, (d) use, access, or otherwise exploit the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to the Services, (e) remove any proprietary notices or labels from the Services, or (f) use the Services to threaten, disrespect, harass, defame, or intimidate any third-party providers or other subscribers.
1.5 Professional Services. If indicated on an order form, Subscriber may elect to engage Company for the provision of certain Professional Services subject to additional terms (“Supplemental Terms”) and fees as specified on the order form or Documentation. If Subscriber requests the provision of Professional Services on-site at Subscriber’s facility, and Company agrees in writing to provide such Professional Services, Company shall bill and Subscriber agrees to pay any costs and expenses (including any travel expenses) related to the provision of Professional Services on-site. Subscriber’s execution of an order form for Professional Services constitutes Subscriber’s agreement to be bound to the Supplemental Terms and pay any fees relating to such Professional Services. If these Terms are inconsistent with such Supplemental Terms, the Supplemental Terms shall control with respect to such Professional Services. Company may add or discontinue offering any Professional Services, in whole or in part, in Company’s discretion, at any time unless expressly agreed otherwise in the Agreement.
2. Fees and Payment
2.1 Fees. In consideration for the rights granted, Subscriber will pay to Company, without offset or deduction, the fees and expenses described in an Order Form or Documentation. Unless otherwise provided in an Order Form, Company reserves the right to increase fees each Renewal Term by five percent (5%) or at the rate of increase in the Consumer Price Index, whichever is greater. Fees and expenses for the Initial Term are due upon execution of the Order Form. Thereafter, fees are payable within thirty (30) days or receipt of an invoice.
2.2 Taxes. All amounts due under any Order Form are non-cancellable, non-refundable, and exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind (whether foreign, federal, state, local or other) associated with the Agreement, the Services, the Professional Services, and Authorized Users’ access to and use of the Services and/or Professional Services. Subscriber shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on Company’s U.S. income), which may be invoiced by Company from time-to-time.
2.3 Payment Method. Subscriber shall make all payments hereunder using the payment method set forth in the Order Form. All payments shall be made in U.S. Dollars. Subscriber agrees to gross-up payments due to Company for any tax related withholding or deduction required by applicable laws, such that Company is paid the net amount contemplated under the applicable Order Form.
2.4 Late Payments. In addition to any other remedies available to Company hereunder, Subscriber shall pay interest on all late payments at a rate of 1.25% per month, calculated daily and compounded monthly. Subscriber will reimburse Company for all costs and expenses, including attorneys’ fees, incurred in collecting any unpaid amounts owed by Subscriber hereunder.
2.5 Evaluation Period. If Company offers Subscriber an evaluation period (may also be referred to as Learning Phase, Learning Period, or Pilot), once the evaluation period ends (as documented in an Order Form or as otherwise communicated by Company), Company will begin billing Subscriber’s applicable payment method at the rate and schedule (set forth in the Order Form) for a Subscription Term, unless Subscriber cancels at least three (3) days prior to the end of the evaluation period. The Agreement shall govern Subscriber’s evaluation period and any subsequent subscriptions.
3. Ownership.
3.1 Company IP. Subscriber acknowledges and agrees that as between Company and Subscriber, all right, title, and interest in the Company IP (including any related patent copyright, trademark, trade secret, intellectual property or other ownership rights) are and will remain the sole and exclusive property of Company (or its licensors). Any derivative works, modifications, suggestions, enhancements, or other feedback Subscriber provides to Company will be solely and exclusively owned by Company, and includes the right for Company to use, reproduce, disclose, publish, distribute, or otherwise exploit, in any manner. Trademarks, logos, and service marks displayed on the Services are registered and/or unregistered trademarks of Company, its licensors or content providers, or other third parties. As used herein, “Company IP” means all of Company’s proprietary technology (including the Services, Documentation, software, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) that Company makes available to Subscriber during the provision of services indicated on an applicable order form.
3.2 Subscriber Data. As between the Parties, except for the limited rights provided herein, Subscriber retains all right, title, and interest (including any and all intellectual property rights) in and to the Subscriber Data as provided to Company. Subscriber hereby grants to Company, its agents, and authorized partners a non-exclusive, worldwide, royalty-free right to use, copy, process store, transmit, distribute, perform and display, modify and create derivative works of the Subscriber Data to the extent necessary to provide the Services and/or Professional Services and to comply with applicable laws. Subscriber shall be solely responsible for ensuring that all Subscriber Data complies with applicable laws. “Subscriber Data” means electronic data and information submitted by or on behalf of Subscriber to the Service or collected and processed by or on behalf of Subscriber using the Service.
4. Marketplace (this section applies to Subscribers who participate in the Marketplace)
4.1 Marketplace Participant. Subscriber may access and use the Marketplace to communicate and engage third parties for the provision of technical, maintenance, and repair services. The terms of such transactions will be further specified in the Marketplace or such documentation provided by Company to Subscriber. These transactions are by and between the identified Marketplace participants (i.e. Subscriber and third-party provider). Company does not endorse, warrant, or guarantee any third-party products or services, including those offered or described in the Marketplace. Company may collect fees and commissions relating to such transactions, but is not responsible or liable for the acts or omissions of any Subscriber or Marketplace participant, their payment or performance obligations, or the benefits or losses associated with any transaction or hardware.
4.2 Third-Party Services. The Marketplace may include certain links to third-party websites for the purpose of Subscriber engaging a third-party provider. Company does not control or operate any such third-party website. Any information Subscriber uploads to a third-party website or provide to a third-party provider is subject to the policies and procedures of such third party, and not Company’s policies. Subscriber agrees that Company will not be responsible or liable for, and does not endorse any content, advertising, products or services provided on or through these third-party websites. Company does not make any representations or warranties as to (a) any API integrations with Subscriber’s or a third party’s services or products or (b) the security of any information (including, without limitation, credit card and other personal information) Subscriber might be requested to give to any third-party website or provider. Subscriber’s use of Company’s API integrations or third-party websites and services is at Subscriber’s sole risk.
4.3 Subscriber Responsibilities. The Marketplace provides Subscriber the opportunity to review the services and products provided by a third-party provider. Subscriber shall be solely responsible for the reviews it uploads to the Marketplace. Any reviews or ratings Subscriber uploads to the Marketplace shall be (a) based on Subscriber’s actual first-hand experience and (b) honest, truthful, and accurate. Subscriber shall not upload any review that Company deems libelous, harassing, obscene, defamatory, offensive, or infringing. Company, in its sole discretion, may remove any reviews or ratings once published to the Marketplace.
5. Term and Termination
5.1 Subscription Term. Unless otherwise specified in an Order Form, the initial term of the Agreement shall commence on the effective date of the order form and continue for the period set forth in the order form, if no period is provided in the order form, the initial term shall continue for twelve (12) months following the effective date of the order form (the “Initial Term”). The Agreement shall thereafter automatically renew for successive renewal terms, equal to the period of the Initial Term (each a “Renewal Term”), unless either Party provides the other Party at least thirty (30) days’ advance written notice of its desire to not renew prior to the end of the then-current Term. The Initial Term and any Renewal Terms may be collectively and individually referred to as the “Subscription Term”.
5.2 Termination. Either Party may terminate the Agreement, including any active Order Form, for the uncured material breach of the other Party if the breaching Party fails to cure such breach within thirty (30) days of becoming aware of the breach, or as otherwise provided in the Agreement.
5.3 Termination for Insolvency. Company may terminate the Agreement (and any or all applicable Order Forms) immediately if Subscriber becomes the subject of any voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, liquidation, or composition for the benefit of credits, if such petition or proceeding is not dismissed within sixty (60) days of filing.
5.4 Other Terminations. Company may terminate the Agreement (and any or all applicable Order Forms), or suspend or terminate Subscriber’s access to the Services and Professional Services, at any time in its sole discretion, with or without notice, if (a) Subscriber is past due on any invoiced fees and fails to cure within ten (10) days’ notice, (b) Subscriber is in breach of the Agreement, or (c) Company has a good faith belief that any Authorized Users’ access or use of the Services violates law or regulation or is disrupting other subscribers’ access to or use of the Services.
5.5 Post Termination Obligations. Upon the termination or expiration of the Agreement and subject to payment of all amounts then due and owing, (a) Company will transfer a copy of Subscriber Data in Company’s possession or control to Subscriber within thirty (30) days following any termination or expiration (or otherwise upon Subscriber’s reasonable request). Company is not obligated to store any Subscriber Data for more than thirty (30) days following the termination or expiration of the Agreement. Company will delete any Subscriber Data in its control or possession thereafter, but may retain copies for archival purposes; and (b) Subscriber will (i) discontinue all access and use of the Services, and (ii) remain liable for all payments due to Company with respect to the period ending on the date of termination (including any fees and expenses that had not been invoiced prior to termination). Sections 2, 3.1, 5.5, 6, 7.2, 8, 9.2, and 10 will survive any termination or expiration of the Agreement.
6. Confidential Information. All confidential information will be held in confidence, and the receiving Party will take all steps reasonably necessary to preserve the confidentiality of the confidential information of the other Party. The disclosing Party's confidential information will not be used or disclosed by the receiving Party for any purpose except (a) as necessary to exercise rights or perform obligations under the Agreement, or (b) as required by law, provided that the other Party is given a reasonable opportunity to obtain a protective order. The receiving Party will limit its use of and access to the disclosing Party's confidential information to only those of its employees or representatives whose responsibilities require such use or access. The receiving Party will advise all such employees and representatives, before they receive access to or possession of any of the disclosing Party's confidential information, of the confidential nature of the confidential information and require them to abide by the terms of this Section. Either Party may disclose the Agreement to its actual or potential investors, creditors, professional advisors, or attorneys who are subject to a duty of confidentiality. Company’s confidential information includes the Services (and the data that is provided as part of the Services, but not any Subscriber provided data), Documentation, and the pricing under the Agreement.
7. Representations and Warranties; Disclaimer
7.1 Company Limited Warranty. Company warrants that it will provide the online platform and Marketplace (defined as “Services” above) in a competent manner. Company does not warrant that it will be able to correct all reported defects or that use of the Services will be uninterrupted or error free. Company retains the right to modify the Services, including the Company IP, in its sole discretion; provided that doing so does not have a material adverse impact on the Services. Company may pause or interrupt the Services at any time, and Subscriber should expect periodic downtime for updates to the Services.
7.2 Disclaimer. THE SERVICES ARE PROVIDED “AS IS” AND COMPANY MAKES NO ADDITIONAL REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM COMPANY IP. ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, OR NON-INFRINGEMENT.
8. Limitation of Liability. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF REVENUE, SAVINGS OR DATA) ARISING IN CONNECTION WITH THE AGREEMENT, INCLUDING COMPANY IP, PROFESSIONAL SERVICES, OR OTHERWISE, BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. A PARTY’S TOTAL AGGREGATE LIABILITY UNDER THE AGREEMENT, INCLUDING ALL ORDER FORMS WILL UNDER NO CIRCUMSTANCES EXCEED THE FEES ACTUALLY PAID BY THE SUBSCRIBER TO COMPANY DURING THE PRIOR TWELVE (12) MONTHS FROM THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATIONS OF LIABILITY WILL NOT APPLY TO PAYMENT OBLIGATIONS UNDER ANY ORDER FORM, UNAUTHORIZED USE OR DISCLOSURE OF COMPANY IP, OR SUBSCRIBER’S INDEMNIFICATION OBLIGATIONS IN SECTION 9.2. IF THE SERVICES OR PROFESSIONAL SERVICES ARE PROVIDED ON A TRIAL OR EVALUATION BASIS, SUBSCRIBER’S SOLE REMEDY IN CONNECTION THEREWITH WILL BE TERMINATION OF THE TRIAL OR EVALUATION PERIOD.
9. Indemnification.
9.1 Company Indemnification. Subject to the terms and conditions herein, Company shall defend, indemnify, and hold harmless Subscriber and its directors, officers, and employees from and against any third-party claims, actions, proceedings, demands, lawsuits, damages, liabilities and expenses (including reasonable attorneys’ fees and costs)(collectively, “Claim(s)”) alleging that the Services, when used as authorized under these Terms, directly infringes a third party’s intellectual property. If Subscriber’s use of the Services is, or in Company’s opinion is likely to be, enjoined due to the type of infringement specified above, Company may, in its sole discretion: (a) substitute or modify the Services so that the Services become non-infringing without compromising material functionally; (b) procure for Subscriber the right to continue using the Services; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement (and applicable order form) and refund to Subscriber any pre-paid fees for the Services associated with the then-remaining Subscription Term. The foregoing indemnification obligation of Company shall not apply: (i) if the Services are modified without Company’s prior written approval; (ii) the Services are combined with services or processes not authorized by Company in writing; (iii) related to misuse of the Services; (iv) to any third-party components or Subscriber Data; or (v) if the infringement relates to Company’s compliance with specifications or other requirements of Subscriber. THIS SECTION 9.1 SETS FORTH SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY THIRD-PARTY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
9.2 Subscriber Indemnification. Subscriber shall defend, indemnify, and hold harmless Company and its shareholders, partners, members, directors, officers, employees, lenders, successors and assigns, from and against any and all Claims arising out of or relating to (a) Subscriber’s or any Authorized User’s use of the Services in violation of the terms and conditions herein or applicable law or (b) Subscriber’s service offerings or Subscriber Data.
9.3 Procedures. The obligations of each indemnifying party are conditioned upon receiving from the Party seeking indemnification: (a) prompt written notice of the Claim (but in any event notice in sufficient time for the indemnifying party to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (c) all reasonable necessary cooperation of the indemnified party, at indemnifying party’s expense.
10. Miscellaneous
10.1 Support Services. Subscriber agrees and consents to Company accessing Subscriber’s account and/or creating duplicative or impersonating accounts for the provision of support services as described in an Order Form.
10.2 Hosting Providers. Subscriber acknowledges that the Services are hosted by third-party hosting providers (the “Hosting Providers”). Company may changes its Hosting Providers at any time. Subscriber’s use of the Services is subject to any applicable restrictions or requirements imposed by the Hosting Providers. Notwithstanding any other provision of the Agreement, Company shall not be liable for any problems, failures, defects, or errors with the Services to the extent caused by the Hosting Providers. Subscriber acknowledges that the fees payable for the Services reflect the fact that Company is not responsible for the acts and omissions of the Hosting Providers.
10.3 Statistical Data. Company may analyze Subscriber Data, and data or other content or information of other clients, to create aggregated or anonymized statistics or data that do not identify Subscriber or any individual, and Company may during and after the Subscription Term use and disclose such statistics or data in its discretion, subject to applicable laws and regulations.
10.4 Publicity. Company may use Subscriber’s name and logo to issue press releases and on customer lists published on Company’s website and marketing materials.
10.5 Assignment. Neither Party may assign the Agreement or assign any of its rights, without the prior written consent of the other Party; provided, however, that either Party may assign its rights under the Agreement without the consent of the other Party in the event of a corporate reorganization, consolidation, merger, sale, or transfer of all or substantially all of its assets. Any purported assignment or delegation in violation of this paragraph is null and void. The Agreement will bind and inure to the benefit of each Party’s successor and permitted assigns.
10.6 Notices. Subscriber agrees that an email to its email address on record will constitute formal notice under the Agreement.
10.7 Waiver. No waiver by either Party of any of the provisions of the Agreement is effective unless explicitly set forth in writing and signed by such Party.
10.8 Third-Party Beneficiaries. There are no third-party beneficiaries to the Agreement.
10.9 Force Majeure. Neither Party will be liable hereunder by reason of any failure or delay in the performance of its obligations under the Agreement on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, pandemics, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause that is beyond the reasonable control of either Party.
10.10 Governing Law; Venue. The laws of the State of Massachusetts will govern the Agreement and any dispute arising hereunder without giving effect to the choice of law provisions thereof. Subscriber hereby consents to jurisdiction and venue in any federal or state court located within the State of Massachusetts, and Subscriber shall not bring any suit, claim or other cause of action except in a court within the State of Massachusetts, USA.
10.11 Entire Agreement. Except as otherwise expressly provided in writing, the Agreement sets forth the entire agreement between Subscriber and Company regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter.
SUPPLEMENTAL TERMS FOR PROFESSIONAL SERVICES
UptimeHealth Inc. (“Company”) may offer optional, supplemental Professional Services as described in the Documentation. If Subscriber elects to use the supplemental Professional Services, these supplemental terms shall control with respect to such Professional Services (“Supplemental Terms”). Capitalized terms not defined in these Supplemental Terms have the meaning given elsewhere in the Agreement.
1. Nature of the Professional Services. The Professional Services consist of annual maintenance routines, repairs, asset tagging, or onboarding support to be performed by Company, or a third-party provider on Company’s behalf, as mutually agreed to by the Parties. The Professional Services do not include any diagnostic work, engineering, repairs, parts, labor, or expenses unless otherwise agreed in writing by the Parties.
2. Non-Circumvention. Subscriber acknowledges that the Company’s business relies on the disclosure of information about contracted vendors and service providers for equipment services to the Subscriber. The Subscriber agrees that it will not at any time attempt to deal directly in any manner or circumvent the Company or otherwise exploit the relationship with or attempt to directly negotiate services with vendors and service providers disclosed by the Company without express written permission from the Company for a period of at least three years after the expiration of the agreement.
3. Right to Subcontract. Service Provider retains the right to subcontract the Services to a qualified vendor. Service Provider remains responsible for the quality of the Services and in the event a subcontractor performs the Services to Subscriber, Subscriber agrees to direct communications about the equipment and the services to Service Provider. Subscriber remains responsible for its obligations under this Agreement in any event.
4. Professional Services. Company is an independent contractor, and as such, shall have the right to determine the method, details, and means of performing the Professional Services. Nothing in the Agreement or any order forms shall operate to create any employment relationship. Unless otherwise noted in an order form, Company, or a third-party provider on Company’s behalf, may perform the Professional Services for Subscriber at: (a) Company’s premises or (b) any other location as mutually agreed to between the Parties. Company shall have the sole right to designate the appropriate personnel, or third-party provider, necessary to perform the Professional Services under an order form. Company reserves the right to substitute personnel or third-party providers for any reason and in its own discretion.
5. Subscriber Responsibilities. Subscriber acknowledges that the provision of Professional Services under the Agreement is conditioned on Subscriber performing certain responsibilities including, but not limited to: (a) schedule an appointment for Professional Services with Company or the third-party provider, (b) provide safe and secure access to the machine(s), during normal business hours, (c) maintain environmental controls (temperature, humidity, dust, etc.) in the locale in which Subscriber stores the machine(s), and (d) comply with all federal, state and local laws and regulations (including but not limited to obtaining any licenses, permits or other authorizations required to operate the machine(s)).
6. Warranty. Company represents and warrants that (a) it, or a third-party provider, will perform the Professional Services using personnel of required skill, experience and qualifications; and (b) it will perform the Professional Services in a professional and workmanlike manner with commercially reasonable industry standards for similar services. EXCLUSIVE REMEDY, AND SERVICE PROVIDER’S SOLE OBLIGATION, FOR ANY BREACH OF THIS OR ANY OTHER WARRANTY HEREUNDER SHALL BE FOR SERVICE PROVIDER, UPON RECEIPT OF WRITTEN NOTICE, TO USE COMMERCIALLY REASONABLE EFFORTS TO CURE THE BREACH AT ITS OWN EXPENSE, AND FAILING THAT, TO RETURN ANY FEES PAID TO SERVICE PROVIDER FOR THE SERVICES RELATED TO SUCH BREACH.
7. Disclaimer. THE PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND COMPANY MAKES NO ADDITIONAL REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY SPECIFICALLY DISCLAIMS ANY WARRANTIES OR GUARANTEES WITH RESPECT TO OUTCOME RESULTING FROM THE PROFESSIONAL SERVICES.
8. Indemnification. Subscriber shall defend, indemnify and hold harmless Company from and against any third party claims, demands, loss, damage or expense relating to or resulting from (a) bodily injury or death or damage arising from Company’s, or a third-party provider’s, access to or use of Subscriber’s machines, facilities, or other property or (b) any willful or negligent act or omission of Subscriber.
