UPTRACS END USER AGREEMENT
1. Definitions
1. 1.1. “Documentation” means written or graphical information that is (a) delivered by UPTRACS in performing this agreement and (b) about the Services.
2. 1.2. “Fees” means the fees in any applicable schedule attached hereto.
3. 1.3. “Report” means a statement, summary, analysis, or representation of Customer data generated by the Services.
4. 1.4. “Services” means the software as a service (SAAS) product supplied by UPTRACS under this agreement including software and technology infrastructure and related services.
5. 1.5. “Software Update” means a revision to a Software Upgrade.
6. 1.6. “Software Upgrade” means a new version of UPTRACS’s software that provides new features and enhancements to the Services.
7. 1.7. “Term” means the period of time specified in Section 10.1.
2. The Services. UPTRACS will (a) make the Services available to Customer; and (b) obtain and maintain sufficient hardware, software, and telecommunications infrastructure and services to perform the Services.
3. Licenses, Delivery, Restrictions. UPTRACS grants to Customer a limited, non-exclusive, non-transferable license (without right to sublicense) for Customer’s own business operations to: (a) access and use the Services; and (b) use the Documentation but only for the purposes of using the Services. This license or parts of it may be limited to a number of users as specified in a schedule to this agreement. Except for the rights expressly granted by UPTRACS, UPTRACS reserves all rights to itself, and there are no implied rights or rights granted by estoppel or otherwise. Customer will be liable to UPTRACS for any unauthorized use of the Services that is attributable to Customer. Customer will not copy, translate, rent, sell, sublicense, modify, create derivative works, decompile, disassemble, reverse engineer, distribute, or transfer the Services, Documentation, Software Upgrades, or Software Updates.
4. Fees and Payment Terms. Customer will pay the Fees and invoices for support services, travel, expenses, or charges as provided in any applicable schedule. After the initial Term, UPTRACS will have the right to increase the Fees by notifying Customer in writing of the increase at least 30 days before the expiration of the Term. Additional phone line and minutes overage charges will be automatically added to Customer’s invoice or charges retroactively and that this Agreement is granting such authority to bill without written authorization. Regarding this subject matter. The Fees do not include any taxes, customs, duties, or other charges assessed or imposed by any governmental authority. Customer will be responsible for payment or reimbursement to UPTRACS of any local, state, or federal taxes (excluding taxes imposed on UPTRACS’s income) payable by reason of the transactions contemplated in this agreement, whether due at the time of sale or asserted later as a result of audit of the financial records of either Customer or UPTRACS. All amounts payable to UPTRACS will bear interest at one percent per month, from the due date until paid. In addition to other rights UPTRACS may have at law, equity, or under this agreement, UPTRACS has the right to immediately suspend the Services if Customer does not make payments when due.
5. Ownership. All right, title, and interest in and to UPTRACS’s software and Documentation and all copyrights, patents, trademarks, service marks or other intellectual property or proprietary rights relating to them are and shall remain with UPTRACS.
6. Confidentiality. Each party will keep confidential and not disclose to any third party or use (except as required by this agreement), any non-public information obtained from the other party (“Confidential Information”), including Customer data; provided, however, that neither party is prohibited from disclosing or using Confidential Information that the receiving party can show (a) is publicly available or becomes publicly available through no act or omission of the receiving party; (b) is or has been disclosed to such party by a third party who is not under an obligation of confidentiality with respect to it; or (c) must be used or disclosed under court order or applicable law, provided such use or disclosure is to the minimum extent required by court order or applicable law. Upon termination of this agreement and upon request by the disclosing party, receiving party will promptly return to disclosing party all disclosing party’s Confidential Information in its possession (including all copies and extracts thereof). Termination of this agreement for any reason does not relieve either party of its obligations of confidentiality. The obligations in this Section 6 will survive any termination of this agreement for five years.
7. Limited Warranty; Remedy and Disclaimer. UPTRACS has title to the software or rights in the software that it uses to provide the Services sufficient to provide the Services. The Services will perform substantially as stated in the Documentation. UPTRACS does not warrant that the Services will be uninterrupted or error-free. Except for any liability under its non-infringement indemnity, UPTRACS’s entire liability and Customer's sole and exclusive remedy for the breach of UPTRACS’s warranty in this Section 7 will be to require UPTRACS to use commercially reasonable efforts to provide modifications or fixes to correct any error in the Services in a timely manner. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED ABOVE, THE SERVICES AND DOCUMENTATION ARE PROVIDED AS-IS AND WITHOUT ANY WARRANTY. THESE WARRANTIES ARE EXCLUSIVE AND UPTRACS DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability. UPTRACS AND CUSTOMER AGREE THAT NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING LOSS OF PROFITS, LOST SAVINGS, LOSS OF USE, OR LOSS OF DATA) ARISING OUT OF THIS AGREEMENT WHETHER IN CONTRACT OR TORT EVEN IF IT HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY WILL BE LIABLE FOR ANY DAMAGES THAT ALONE OR IN THE AGGREGATE EXCEED THE FEES PAID BY CUSTOMER. THIS SECTION 8 SHALL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, AND SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
9. Support and Help Desk
1. 9.1. UPTRACS will provide email and web-based support for the Services from 8:00 a.m. - 5:00 p.m. (Pacific Time), Monday through Friday, excluding company holidays, to assist in identifying and diagnosing problems with the Services (such as error messages, bug fixes, basic how-to functionality questions, and installations). All help-desk calls will be prioritized according to the severity of a call, as determined by UPTRACS in its discretion. Help-desk support does not include training, setup assistance, diagnosis of customer interface problems, or integration or programming services. UPTRACS may provide phone support and/or for the excluded services at UPTRACS’s then current rates at its option. UPTRACS help-desk hours, time zones, and policies are subject to change at the option of UPTRACS. Customer will appoint up to three people as its authorized customer-support contacts. Authorized technical support contacts must complete training on the operation and maintenance of the Services as specified by UPTRACS.
2. 9.2. UPTRACS will use commercially reasonable efforts to provide corrections to errors in the Services in the form of patches, fixes, workarounds, Software Updates, Software Upgrades or other form within a commercially reasonable time depending on the severity of the error as determined by UPTRACS.
3. 9.3. UPTRACS will provide Software Updates and Software Upgrades that are commercially released for no additional fee; however, any education or other services provided by UPTRACS will be subject to additional charges. Any new software services for which UPTRACS generally charges a separate fee are not included.
4. 9.4. UPTRACS will provide Software Updates and Software Upgrades that are commercially released for no additional fee; however, any education or other services provided by UPTRACS will be subject to additional charges. Any new software services for which UPTRACS generally charges a separate fee are not included.
10. Term and Termination. This term of this agreement starts on the Effective Date and, unless earlier terminated as provided in this agreement, ends as provided in the applicable schedule. If Customer defaults or materially breaches this agreement, UPTRACS will give Customer written notice of breach, and Customer will have 30 days to cure. If Customer fails to cure the breach within the notice period, UPTRACS may, in addition to all other available remedies, at law, equity or under this agreement, terminate this agreement and suspend Customer’s access to the Services. Upon expiration or termination of this agreement for any reason, all licenses granted by UPTRACS will immediately terminate, and Customer will return or destroy, as requested by UPTRACS, all copies of the Documentation in Customer’s possession.
11. Customer Representations and Warranties. Customer represents and warrants that its use of the Services will be in accordance with all applicable laws and regulations. Customer agrees to indemnify and hold harmless UPTRACS, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all loss, claims and expenses (e.g. attorneys’ fees), arising out of Customer’s use of the Services, including, but not limited, to out of Customer’s violation of this Agreement.
12. General Terms. Neither party may assign, transfer, or delegate this agreement without the other’s consent, except to the purchaser of substantially all assets of the assigning party. This agreement will be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of laws provisions. Any action relating to this agreement will be brought in the state and federal courts in San Diego County, CA and each party submits to the personal jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this agreement. Neither party shall be liable to the other party for any delay in performance due to circumstances beyond such party’s reasonable control. If any provision of this agreement is found to be contrary to law, then such provision shall be construed as nearly as possible to reflect the intention of the parties, with the other provisions remaining unchanged. For the purposes of this agreement, the relationship of the parties is that of independent contractors, and no party is an agent or representative of the other party, and no party has any express or implied authority to act on behalf of, or make any representations on behalf of the other. Any notice to Customer may be provided by email; all notices to UPTRACS must be by mail (either US mail or courier), at the address below. This agreement and any applicable schedule attached hereto constitutes the entire agreement between the parties pertaining to its subject matter, and all previous written or oral agreements between the parties are canceled. Any modifications of this agreement must be in writing and agreed to by both parties.