Last Updated: 9.12.2023
Please read these Uplift Platform Terms of Service (this “Agreement”) as it governs your (“you”, “your” or “Customer”) use of the Uplift Platform (the “Services”) offered by Uplift Labs, Inc. (“Uplift Labs”).
1.1 Acceptance. By clicking the “I Accept” button at the time you registered for the use of the Services, you are agreeing to be bound by the terms of this Agreement. Certain elements of the Services may be subject to additional terms and conditions specified from time to time; your use of those elements of the Services is subject to those additional terms and conditions, which are incorporated into this Agreement by this reference. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that entity to this Agreement. In that case, you are entering into these Terms on behalf of that entity, and “you” and “your” or “Customer” will refer to that entity. If you have a separate written agreement with Uplift Labs that governs your use of the Services, then that written agreement will control and supercede this Agreement
1.2 Changes to this Agreement. Uplift Labs may update the terms of this Agreement from time to time in Uplift Labs’ sole discretion. If Uplift Labs does update the terms, Uplift Labs will let you know by posting the updated Agreement on Uplift Lab’s website located here: [INSERT]. It is important that you review the terms of the Agreement whenever we update them or you use the Services. If you continue to use the Services after we have posted an updated Agreement it means that you accept and agree to the changes. If you do not agree to be bound by the changes, you may not use the Services anymore.
2.1 Grant of License. Subject to the terms and conditions of this Agreement, Uplift hereby grants to Customer a non-exclusive, nontransferable (except pursuant to Section 8.2), nonsublicensable, limited right and license, during the Term (as defined in Section 7), to access and use the Service as made available by Uplift through the Service, solely for Customer’s own internal business use. Customer may only access and use the Service with valid user number(s) and password(s) granted to Customer by Uplift. Except as set forth in this Section 2.1, no other right or license of any kind is granted by Uplift to Customer hereunder with respect to the Service.
2.2 Restrictions. Customer hereby acknowledges and agrees that it shall not use the Service for any purpose other than the purpose for which Uplift has developed the Service, and that it shall use the Service in accordance with all applicable laws, rules, and regulations. Except as expressly provided in Section 2.1, Customer shall not, and shall not permit any employee or third party to, without the prior written consent of Uplift: (a) copy all or any portion of the Service; (b) decompile, disassemble or otherwise reverse engineer the Service, or any portion thereof, or determine or attempt to determine any source code, algorithms, methods, or techniques used or embodied in the Service or any portion thereof; (c) modify, translate, or create any derivative works based upon the Service; (d) distribute, disclose, market, rent, lease, assign, sublicense, pledge, or otherwise transfer the Service, in whole or in part, to any third party; (e) remove or alter any copyright, trademark, or other proprietary notices, legends, symbols, or labels appearing on or in the Service; (f) perform, or release the results of, benchmark tests or other comparisons of the Service with other software or materials; (g) permit the Services to be used for or in connection with any facility management, service bureau, or time-sharing purposes, services, or arrangements, or otherwise used for processing data or other information on behalf of any third party; or (h) use the Service for any purpose other than in accordance with the terms and conditions of this Agreement. In the event of any violation of this Section 2.2, Uplift may immediately terminate this Agreement, and shall be entitled to equitable relief.
2.3 Grant of License in Customer Materials. Customer hereby grants to Uplift a worldwide, royalty-free, non-exclusive, limited, nontransferable (except pursuant to Section 8.2) right and license, during the Term, to use, reproduce, distribute, transmit, perform, display, and make derivative works of any and all data, information, content, and other materials prepared by Customer through the use of, stored by Customer in connection with, or transmitted by Customer by or through, the Service (the “Customer Materials”) for purposes of making the Service available to Customer and for analytic, statistical, security, quality control, and similar purposes. Customer represents and warrants to Uplift that it has the right to grant the foregoing licenses in the Customer Materials. The Customer Materials shall be Customer’s Confidential Information and subject to Section 5.
2.4 Third Party Service Providers. If Customer has opted to utilize a third party service as provided for on Exhibit A (the “Third Party Service Provider”), then notwithstanding Sections 2.3 and 5, Uplift shall have the right to transfer the Customer Materials to the Third Party Service Provider for the purposes of the services provided by the Third Party Service Provider. Customer acknowledges that Customer must have a direct relationship with the Third Party Service Provider and Uplift makes no representations, warranties or guarantees with respect to the services provided by the Third Party Service Provider and Customer will look to the Third Party Service Provider with respect to any claims regarding the Third Party Service Provider’s services and use of the Customer Materials.
As between Uplift and Customer, Uplift and its licensors own and shall retain all right, title and interest in and to the Service and any portions thereof, including, without limitation, any copy or derivative work thereto. Customer shall not take any action to jeopardize, encumber, limit, or interfere in any manner with Uplift’s or its licensors’ ownership of and rights with respect to the Service. Customer shall have only those rights in and to the Service as are expressly granted to it under this Agreement.
4.1 Customer will pay Uplift the fees described on [insert name of one page document that has business terms] (the “Platform Terms”). Uplift reserves the right to change such fees at the end of the Initial Term and each Renewal Term, upon thirty (30) days prior notice to Customer (which may be sent by email).
4.2 Uplift may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Uplift thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Uplift’s net income.
5.1 Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business or technical information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information”). Confidential Information of Uplift includes non-public information regarding features, functionality and performance of the Service. Confidential Information of Customer includes non-public data provided by Customer to Uplift to enable the provision of the Services, including, without limitation, the Customer Materials. The Receiving Party shall: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information except as provided in Section 2.4.
5.2 Exceptions. The Disclosing Party agrees that the obligations in Section 5.1 shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public without a breach by the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by applicable law or regulation.
6.1 Mutual Representations. Each party represents and warrants to the other party that the execution, delivery and performance of this Agreement (a) is within its corporate powers, (b) has been duly authorized by all necessary corporate action on such party’s part, and (c) does not and shall not contravene or constitute a default under, and is not and shall not be inconsistent with, any judgment decree or order, or any contract, agreement, or other undertaking, applicable to such party.
6.2 Disclaimer. THE SERVICE IS PROVIDED “AS IS” AND WITH ALL FAULTS AND UPLIFT MAKES NO WARRANTY THAT ALL ERRORS, FAILURES, OR DEFECTS SHALL BE CORRECTED, OR THAT ACCESS TO OR USE OF THE SERVICE SHALL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY UPLIFT, ITS AGENTS, OR ITS EMPLOYEES, SHALL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT. TO THE EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL UPLIFT OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, OR INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND OR OTHER ECONOMIC LOSS ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, EVEN IF UPLIFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED.
6.3 Maximum Liability. Notwithstanding anything in this Agreement to the contrary or the failure of essential purpose of any limited remedy or limitation of liability, Uplift’s entire liability arising from or relating to this Agreement or the subject matter hereof, under any legal theory (whether in contract, tort, indemnity or otherwise), shall not exceed the amounts actually received by Uplift from Customer hereunder.
7.1 Term. The term of this Agreement shall commence on the Effective Date and shall, unless earlier terminated as provided herein, continue for initial period set forth on the Platform Terms (the “Initial Term”). This Agreement shall, unless earlier terminated as provided herein, thereafter renew automatically for additional one (1) year terms (each a “Renewal Term” and together with the Initial Term, the “Term”). Either party may terminate this Agreement as of the end of the Initial Term, or as of the end of any subsequent Renewal Term, by written notice to the other party at least sixty (60) days prior to the renewal anniversary date.
7.2 Termination for Default. If either party materially defaults in any of its obligations under this Agreement, the non-defaulting party, at its option, shall have the right to terminate this Agreement by written notice to the other party unless, within thirty (30) calendar days after receiving written notice of such default, the defaulting party remedies the default.
7.3 Effect of Termination. Upon the expiration or termination of this Agreement, all rights and licenses granted to Customer hereunder shall immediately terminate. Within ten (10) days after any termination or expiration of this Agreement, each party shall, at its sole expense, return to the other party all Confidential Information of the other party (and all copies and extracts thereof) then in the possession or under the control of such party. Either party’s termination of this Agreement shall be without prejudice to any other right or remedy that it may have at law or in equity, and shall not relieve either party of breaches occurring prior to the effective date of such termination. The provisions of Sections 2.2 (“Restrictions”), 3 (“Proprietary Rights”), 4 (“Confidential Information”), 6 (“Representations and Disclaimer”), 7 (“Term and Termination”) and 8 (“General Provisions”), shall survive the expiration or any termination of this Agreement.
8.1 Notices. Any notice, request, demand or other communication required or permitted hereunder shall be in writing, shall reference this Agreement, and shall be deemed to be properly given: (a) when delivered personally; (b) when sent by facsimile, with written confirmation of receipt; (c) seven (7) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) two (2) business days after deposit with a nationally recognized private industry express courier (e.g., Federal Express or DHL), with written confirmation of receipt. All notices shall be sent to the address set forth in the preamble to this Agreement.
8.2 Assignment. This Agreement may not be assigned, in whole or part, whether voluntarily, by operation of law, or otherwise, by Customer without the prior written consent of Uplift. Subject to the preceding sentence, the rights and liabilities of the parties hereto are binding on, and shall inure to the benefit of, the parties and their respective successors and permitted assigns. Any attempted assignment other than in accordance with this Section 8.2 shall be null and void.
8.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S.A., without reference to its conflicts of law provisions.
8.4 Construction. This Agreement has been negotiated by the parties and their respective counsel. This Agreement shall be interpreted fairly in accordance with its terms and without any construction in favor of or against either party.
8.5. Waiver. The waiver by either party of a breach of or a default under any provision of this Agreement, shall be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
8.6 Severability. If the application of any provision of this Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby, and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
8.7 Relationship of the Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment, or fiduciary relationship between the parties. Neither party, nor either party’s agents, have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times shall continue to be, that of independent contractors.
8.8 Captions and Section Headings. The captions and Section and paragraph headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
8.9 Counterparts. This Agreement may be executed in one or more counterparts, with the same effect as if the parties had signed the same document. Each counterpart so executed shall be deemed to be an original, and all such counterparts shall be construed together and shall constitute one Agreement.
8.10 Modification. No amendment or modification of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized signatory of Uplift and Customer.
8.11 Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof, and supersedes (a) all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements, and communications, whether oral or written, between the parties relating to the subject matter of this Agreement, and (b) all past courses of dealing and industry custom.