Welcome to Uptrends (“Uptrends”, “we”, “our” or “us”). This Software Services Agreement contain the legal terms and conditions that govern your use of and access to www.uptrends.com and any related or local sites (the “Site”) and our Agents, Software, Documentation, Forums and Content (all as defined below and collectively, the “ Software Services”). Please review these Terms of Service carefully before using our Services. Since this is a binding legal agreement between you and Uptrends LLC, please print a copy of this Agreement for your records.
THIS SOFTWARE SERVICES AGREEMENT (the “Agreement”) is entered into and effective as of the day you “AGREE” (the “Effective Date”) by and between Uptrends LLC (“Uptrends”) and you or the company or entity you represent (“Client” or “You”). You may not access the Services if You are Our direct competitor, except with Our prior written consent.
PLEASE SCROLL DOWN AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE CLICKING “AGREE” OR SIMILAR BUTTON OR INSTALLING OR USING THE SOFTWARE SERVICES (DEFINED BELOW). THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND UPTRENDS AND SETS FORTH THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SOFTWARE SERVICES. BY CLICKING AN “AGREE” OR SIMILAR BUTTON OR BY USING THE SOFTWARE SERVICES, YOU ACCEPT AND ABIDE BY THESE TERMS AND CONDITIONS AS PRESENTED TO YOU. UPTRENDS MAY UPDATE THESE TERMS AND CONDITIONS FROM TIME TO TIME; YOUR CONTINUED USE OF THE SOFTWARE SERVICES CONSTITUTE YOUR ACCEPTANCE OF THE UPDATED TERMS AND CONDITIONS. ANY OTHER CHANGES, ADDITIONS OR DELETIONS BY YOU TO THESE TERMS AND CONDITIONS WILL NOT BE ACCEPTED BY UPTRENDS AND WILL NOT BE PART OF THIS AGREEMENT.
1. Distribution of Software Services.
Subject to the terms and conditions of this Agreement, Uptrends shall provide certain software services (the “Software Services”) and user documentation provided by Uptrends on the use of the Software Services (“Documentation”) to Client and certain individuals or entities that are authorized to use the Software Services (“Authorized Users”). Uptrends hereby grants Client a limited, non-exclusive, non-transferable and non-sub-licensable right and license to access and use the Software Services and Documentation during the Term (defined below) subject to the terms and conditions of this Agreement. For the avoidance of doubt, any installation guide or end user documentation not prepared or provided by Uptrends; any online community site; feedback; or other online or informal forum does not constitute Documentation.
2. Software Services Evaluation Agreement.
If the Software Services and Documentation are provided to Client for evaluation purposes, Uptrends grants to Client a nonexclusive, limited, royalty-free, nontransferable evaluation license to use the Software Services solely for evaluation prior to purchase (“Evaluation License”). The Evaluation License shall terminate on the end date of the pre-determined evaluation period or immediately upon notice from Uptrends, at its sole discretion. Notwithstanding any other provision contained herein, Software Services provided pursuant to an Evaluation License are provided to Client “AS IS” without indemnification, support, or warranty of any kind, express or implied. Except to the extent such terms conflict with the specific evaluation terms set forth in this Section, all other terms of this Software Services Agreement shall apply to the Software Services under an Evaluation License.
3. Client’s Obligations; License Restrictions.
Client will (i) be responsible for its and its Authorized Users’ compliance with this Agreement; (ii) be solely responsible for the accuracy, quality, integrity, and legality of Client Data (defined below) and means relating to acquisition of the Client Data; (iii) not provide, make available to, or permit other individuals to use or access the Software Services, except under the terms listed herein, and that Client will responsible for any unauthorized activity of the Software Services; (iv) not sell, resell, rent, or lease the Software Services; (v) not modify, translate, reverse engineer, decompile, disassemble, create derivative works, or otherwise attempt to derive the source code of the Software Services; (vi) not remove any proprietary notices or labels on the Software Services; (vii) not license the Software Services if Client (or any of its Authorized Users) is a direct competitor of Uptrends or its affiliated entities for the purposes of monitoring the Software Service’s availability, performance, or functionality or for any other benchmarking or competitive purposes; (viii) not use the Software Services to store or transmit infringing, libelous, unlawful, or tortious material or to store or transmit material in violation of third party privacy rights; (vi) not use the Software Services to store or transmit malicious code; or (vii) not interfere with or disrupt the integrity or performance of the Software Services.
4. Expenses & Payment.
All orders placed will be considered final. Fees will be due and payable as set forth on the web site or otherwise conveyed to you during the order process. Fees for any Renewal Term shall be at Uptrends’s then standard rates, currently in effect, or if applicable, as otherwise set forth on the web site or otherwise conveyed to you by Uptrends. If Client fails to pay in accordance with the payment terms, Uptrends shall be entitled, at its sole discretion, (i) to suspend provision of the Software Services temporarily until Client fulfills its pending obligations or (ii) to terminate this Agreement for breach. Unless otherwise stated, all payments made under this Agreement shall be in United States dollars. Except as otherwise expressly provided herein, fees are non-refundable.
5. Upgrading Your Account.
Client may, at any time during the Term, upgrade to a different Uptrends account type. The change in account type will take effect immediately. After an upgrade in account type, Client will be billed immediately for the additional fees due under the upgraded account type for the remaining time of the applicable Term. The amount due and owing for the upgraded account type will be reduced by what the amount the Client has already paid for the applicable Term if it is a yearly license. In regard to an upgraded account type which will be renewed monthly, Client will be billed the fees due for the upgraded account type at the commencement of the Renewal Term.
6. Policy For Automatic Renewal
IF A CUSTOMER’S ACCOUNT IS SET TO RENEW ON THE ANNIVERSARY DATE, THE DATE OF THE START OF THE UPTRENDS MONITORING, UPTRENDS MAY AUTOMATICALLY CHARGE SAID CUSTOMER AT THE END OF THE TERM FOR THE RENEWAL FOR ADDITIONAL PERIODS EQUAL TO THE CURRENT SERVICES AND EXPIRING TERM, UNLESS EITHER PARTY GIVES NOTICE OF NON-RENEWAL AT LEAST NINETY (90) DAYS PRIOR IN WRITING TO EXPIRATION OF THE THEN-CURRENT TERM. THIS NON-RENEWAL WRITTEN NOTICE MUST BE ACCEPTED AND ACKNOWLEDGED BY UPTRENDS IN WRITING. Uptrends reserves the right to increase the fees for any such renewal term at Uptrends’ own discretion without prior notice to the said customer. Any such fee increase shall not exceed more than a ten (10%) percent per unit increase from the fee level for the relevant Service in the immediately prior term, unless the fees in such prior term were designated in the relevant Order Form as discount, multi-year, one-time or promotional pricing. Customer agrees to pay for all of Uptrends LLC legal costs, all fees associated with the collection of any late payments, or if the renewal is not paid within 15 days. Customer also agrees to a late fee of 10% per month for late payments or non-payments including but not limited to auto renewal contracts.
7. Purchase order numbers
If Customer requires the use of a purchase order or purchase order number, Customer must (i) provide the purchase order number at the time of purchase; and (ii) agree that any terms and conditions on a Customer purchase order will not apply to this Agreement and such purchase order terms are null and void.
The fees are exclusive of taxes, and Client shall pay or reimburse Uptrends for all taxes arising out of transactions contemplated by this Agreement. If Client is required to withhold any tax for payments due under this Agreement, Client shall gross its payments to Uptrends so that Uptrends receives sums due in full and free of any deductions. Client will provide documentation to Uptrends showing that taxes have been paid to the relevant taxing authority. “Taxes” means any sales, VAT, use, and other taxes (other than taxes on Uptrends’s income), export and import fees, customs duties and similar charges imposed by any government or other authority. Client hereby confirms that Uptrends can rely on the name and address that Client provides to Uptrends when Client agrees to the Software Services fees or in connection with Client’s payment method as being the place of supply for sales tax and income tax purposes or as being the place of supply for VAT purposes where Client has established its business.
9. Term & Termination Agreement and Fair Use Policy
Unless terminated earlier in accordance with this Section, this Agreement will begin on the Effective Date and will continue until the end of the period specified in the applicable quote or order form for the Software Services (the “Initial Service Term”) and shall be automatically renewed for additional terms of the same duration as the Initial Service Term (each, a “Renewal Term”, collectively with the Initial Service Term, the “Term”), unless either party requests termination at least ninety (90) days prior to the end of the then-current Term. In any event, this Agreement may be terminated by either party upon ninety (90) days prior written notice of a material breach by the other party if such breach remains uncured at the expiration of such ninety (90) day period, or it may be terminated by either party immediately if the other party becomes subject to bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, the Client infringes or misappropriates Uptrends’s intellectual property, or breaches the License Restrictions or Confidentiality provision set forth herein. Termination shall not relieve Client of the obligation to pay any fees or other amounts accrued or payable to Uptrends prior to the effective date of termination. Sections 3 through 14 and 16 shall survive any termination or expiration of this Agreement.
UPTRENDS SHALL HAVE THE ABSOLUTE AND UNILATERAL RIGHT IN ITS SOLE DISCRETION TO DENY USE OF AND ACCESS TO ALL OR ANY PORTION OF UPTRENDS PRODUCTS OR SERVICES TO USERS WHO ARE DEEMED BY UPTRENDS TO BE USING THE UPTRENDS PRODUCTS OR SERVICES IN A MANNER NOT REASONABLY INTENDED BY UPTRENDS OR IN VIOLATION OF LAW, INCLUDING BUT NOT LIMITED TO SUSPENDING OR TERMINATING A USER’S ACCOUNT WITH UPTRENDS AND THE LICENSE TO USE THE UPTRENDS PRODUCTS OR SERVICES. Uptrends Products or Services are designed to serve the needs of particular types of users, such as small to medium sized enterprises and Fortune 500 companies. If you have purchased a Uptrends Product or Service that is inappropriate for your actual usage, Uptrends may require you to switch to an appropriate Uptrends Product or Service which may result in your having to pay Uptrends additional fees for use of the appropriate product or to terminate your purchased Uptrends Products or Services and refund, on a prorated basis, any fees paid you may have paid on the unused portion of your Uptrends subscription, provided that the most recent license renewal or original license purchase was made less than 30 days prior. Uptrends may, in our sole discretion and from time to time, establish or amend general operating practices to maximize the operation and availability of Uptrends Products or Services and to prevent abuses. As part of these practices, we reserve the right to monitor our system to identify excessive consumption of network resources, excessive usage of CPU, hosting of illegal content, or monitoring of infrastructure that triggers our virus scanner and to take such technical and other remedies as we deem appropriate. Your consumption of Uptrends Products or Services may be deemed excessive if, within any month, your usage greatly exceeds the average level of monthly usage of Uptrends’s customers, generally. In the event you are deemed to have violated this policy, we reserve the right to offer an alternative pricing plan or Uptrends Product or Service that will permit you to continue to use Uptrends Products or Services. Although violations of this policy have been infrequent, we reserve the right to terminate or suspend your license to Use Uptrends Products or Services and any license to use the Uptrends Software, without prior notice in the event of a violation of this policy. If Uptrends believes that you have breached our Fair Use Policy and the user has not switched to a Business Service, Uptrends we will allow the user 30 days from date of first communication to retrieve their data before deletion of the users account and data. 1st notice will be sent 30 days before account deletion, 2nd notice will be send 20days before account deletion and the 3rd final notice will be sent 2days before account deletion. All communications will be sent to the email address attached to the users account.
10. Customer Data.
Uptrends agrees that the data and information uploaded by Client (or Authorized Users of Client) that is stored or processed via the Software Services (the “Client Data”) shall be treated as confidential by Uptrends and shall remain Client’s sole property. Client agrees that it is responsible for maintaining and protecting backups of all Client Data directly or indirectly processed using the Software Services and that Uptrends is not responsible for the failure to store, the loss, or the corruption of Client Data. Client agrees that Uptrends and its affiliated entities will collect and track technical and related information about Client and Client’s use of the Software Services, including Client’s internet protocol address, the hardware and software that Client utilizes, and various usage statistics to assist with the necessary operation and function of the Software Services and for internal purposes only, including without limitation to facilitate in the provision of updates, support, invoicing, marketing by Uptrends, its affiliated entities, or its agents, and research and development. In the event that Uptrends is required or ordered to disclose Client Data to a third party pursuant to judicial order or other compulsion of law, if legally permitted, Uptrends shall take all commercially reasonable steps to provide the Client with prompt notice of any relevant order or basis for disclosure so as to allow Client to take whatever steps it can to object to such compulsory disclosure if Client so chooses.
11. Tech Support
Technical support is only provided to users of Commercial Services based on your specific purchased Service. Customers can buy additional support if this is necessary. If you are using the Service via a Free account, Uptrends provides support via the Forums and access to Uptrends installation guides and other documentation related to the Service at: https://www.uptrends.com/support (“Documentation”).
12. Confidential Information Agreement
As used in this Agreement, “Confidential Information” means any information (other than Client Data) disclosed by either party to the other party, either directly or indirectly, in writing, orally, or by inspection of tangible objects (i) that the disclosing party identifies as confidential or proprietary or (ii) that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself. Confidential Information may also include confidential or proprietary information disclosed to a disclosing party by a third party or all technical and non-technical information being disclosed by one party to the other party other than Client Data, (including but not limited to product information, plans and pricing, financials, marketing plans, business strategies, customer information, data, research and development, software and hardware, APIs, specifications, designs, proprietary formulas and proprietary algorithms). The receiving party will: (a) hold the disclosing party’s Confidential Information in confidence; (b) restrict disclosure of such Confidential Information to those of its employees or agents with a need to know such information and who are bound (e.g., as a condition to their employment or agency) by obligations respecting the protection of confidential information, which are substantially similar to those of this Agreement and which would extend to the disclosing party’s Confidential Information; (c) use such Confidential Information only for the purposes for which it was disclosed, unless otherwise set forth herein; and (d) to the extent applicable, not modify, reverse engineer, decompile, create other works from, or disassemble any such Confidential Information, unless expressly permitted by applicable law without the possibility of contractual waiver or otherwise specified in writing by the disclosing party. The restrictions in Section 8.1 will not apply to Confidential Information to the extent it (a) was in the public domain at the time of disclosure; (b) became publicly available after disclosure to the receiving party without breach of this Agreement; (c) was lawfully received by the receiving party from a third party without such restrictions; (d) was known to the receiving party, its employees or agents without such restrictions prior to its receipt from the disclosing party; (e) was independently developed by the receiving party without breach of this Agreement; (f) was generally made available to third parties by the disclosing party without such restriction; or (g) is required to be disclosed by the receiving party pursuant to judicial order or other compulsion of law, provided that the receiving party will provide to the disclosing party prompt notice of such order and comply with any protective order imposed on such disclosure. The parties agree that any material breach of this Section or Section 2 will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of these Sections in addition to any other relief to the applicable party may be entitled.
13. Usage Rights.
The Software Services are licensed, not sold. Use herein of the word “purchase” in conjunction with licenses of the Software Services shall not imply a transfer of ownership. Except for the limited rights expressly granted by Uptrends to Client in Section 1, Client acknowledges and agrees that, as between Client and Uptrends, all right, title and interest, including all copyright, trademark, patent, trade secret, intellectual property (including but not limited to algorithms and business processes) and other proprietary rights, arising out of or relating to the provision of the Software Services belong exclusively to Uptrends, other than the Client Data. Uptrends is hereby granted a royalty-free, fully-paid, worldwide, exclusive, transferable, sub-licensable, irrevocable and perpetual license to use or incorporate into its products and services any information, data, suggestions, enhancement requests, recommendations or other feedback provided by Client or its Authorized Users relating to the Software Services. All rights not expressly granted under this Agreement are reserved by Uptrends.
Uptrends warrants to Client that for a period of thirty (30) days following the initial purchase of the Software Services to Client that the Software Services will perform substantially in conformance with published documentation. Uptrends does not warrant that the Software Services will meet all of Client’s requirements or that use of the Software Services will be uninterrupted, secure, or error-free. To the maximum extent permitted under applicable law, as Uptrends’s and its suppliers’ entire liability, and as Client’s sole and exclusive remedy for a breach of the foregoing warranty, Uptrends will, at its sole option and expense, promptly repair the Software Services. Each party warrants that: (i) it has the necessary corporate power and authority to enter into and perform this Agreement; (ii) this Agreement does not and will not conflict with any other agreement or understanding to which such party is a party or by which it is bound; and (iii) the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement.
THE SOFTWARE SERVICES AND ALL OTHER PRODUCTS AND SERVICES, INCLUDING THIRD PARTY HOSTING SERVICES, PROVIDED HEREUNDER ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10, UPTRENDS HEREBY DISCLAIMS, ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. UPTRENDS SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES AS TO THE CONDITION, VALUE OR QUALITIES OF ANY SERVICES, INFORMATION OR MATERIALS PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, WHETHER ANY SUCH SERVICES, INFORMATION OR MATERIALS WILL BE ACCURATE, COMPLETE, SECURE, CONTINUOUS, UNINTERRUPTED, NON-INFRINGING OR ERROR-FREE, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY AS TO THE WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT, INCLUDING ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. UPTRENDS ALSO SPECIFICALLY DISCLAIMS RESPONSIBILITY OF THIRD PARTY PRODUCTS AND SERVICES WITH WHICH CLIENT MAY UTILIZE THE SOFTWARE SERVICES, AND CLIENT SPECIFICALLY DISCLAIMS AND WAIVES ANY RIGHTS AND CLAIMS CLIENT MAY HAVE AGAINST UPTRENDS WITH RESPECT TO SUCH THIRD PARTY PRODUCTS AND SERVICES, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
16. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) IN NO EVENT WILL UPTRENDS OR ITS AFFILIATED ENTITIES HAVE ANY LIABILITY, CONTINGENT OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY OR EXEMPLARY DAMAGES IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SOFTWARE SERVICES OR ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST OR CORRUPTED DATA, LOSS OF GOODWILL, WORK STOPPAGE, EQUIPMENT FAILURE OR MALFUNCTION, PERSONAL INJURY, PROPERTY DAMAGE OR ANY OTHER DAMAGES OR LOSSES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STATUTE, INDEMNITY OR OTHERWISE) UPON WHICH ANY SUCH LIABILITY IS BASED; AND (II) THE ENTIRE AGGREGATE LIABILITY OF UPTRENDS AND ITS AFFILIATED ENTITIES AND THE SOLE REMEDY AVAILABLE TO THE CLIENT IN ANY CASE IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SOFTWARE SERVICES OR ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER SHALL BE LIMITED TO TERMINATION OF THIS AGREEMENT AND MONETARY DAMAGES THAT IN THE AGGREGATE MAY NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAYABLE OR PAID TO UPTRENDS BY CLIENT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO ITS TERMINATION.
17. Intellectual Property and Client Indemnification.
Uptrends will indemnify and hold Client harmless from any third party claim brought against Client that the Software Services, as provided by Uptrends to Client under this Agreement and used or distributed within the scope of this Agreement, infringes or misappropriates any U.S. patent, copyright, trademark, trade secret, or other intellectual property rights of a third party, provided (i) use of the Software Services by Client is in conformity with the Agreement and Documentation; (ii) the infringement is not caused by modification or alteration of the Software Services or Documentation; and/or (iii) the infringement was not caused by a combination or use of the Software Services with products not supplied by Uptrends. Uptrends indemnification obligations are contingent upon Client: (i) promptly notifying Uptrends in writing of the claim; (ii) granting Uptrends sole control of the selection of counsel, defense, and settlement of the claim; and (iii) providing Uptrends with reasonable assistance, information and authority required for the defense and settlement of the claim. This Section states Uptrends’s entire liability (and shall be Client’s sole and exclusive remedy) with respect to indemnification to Client.
Last updated 2019-02-13.