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UpManager.com End User License Agreement & Terms of Use
Last Updated: 26 October 2007
IMPORTANT - READ CAREFULLY: The Internet-based UpManager Service, which may also include UpManager software, content and related documentation and information (hereinafter collectively referred to as the "Service") is owned and operated by UpManager Software, Inc. ("UpManager"), a Texas corporation, and is provided to you ("You") under the terms and conditions of this End User License Agreement (EULA) and Terms of Use (collectively, the "Agreement" or "Terms" or "Contract"), which include UpManager's Statement of Privacy ("Privacy Policy") and UpManager's License and Registration Order Form ("Registration Form") that are available as set forth below and are incorporated herein by reference. YOU HEREBY REPRESENT AND WARRANT THAT YOU: (i) ARE FULLY AUTHORIZED TO SIGN FOR AND BIND THE CONTRACTING PARTY AND (ii) THOROUGHLY HAVE READ, FULLY UNDERSTAND AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, INCLUDING THE TERMINATION, DATA RIGHTS, DISCLAIMER OF WARRANTIES, LIMITATIONS OF LIABILITY, EXCLUSIVE REMEDY, ARBITRATION AND INDEMNITY CLAUSES SET FORTH IN SECTIONS 10, 11, 14, 15 AND 16 BELOW. On this page
1. CONTRACT FOR SERVICE.This is a legal agreement between You and UpManager with respect to Your access and use of the Service. We are UpManager Software, Inc. (with a mailing address of PO Box 641 Henderson, TX 75653-0641). We will refer to ourselves in this contract as either "UpManager", "we" or "our." You are an end user of the Service representing your corporation or business entity, and we will refer to you in this contract as either "You" or "Your."PLEASE NOTE THAT THIS CONTRACT LIMITS OUR LIABILITY AND WE DO NOT PROVIDE WARRANTIES FOR THE SERVICE. THIS CONTRACT ALSO LIMITS YOUR REMEDIES, IMPOSES RESTRICTIONS ON TERMINATION, SETS RULES ON ARBITRATION, AND LIMITS ACCESS AND TRANSFER RIGHTS TO DATA STORED IN CONJUNCTION TO THE SERVICE. These terms are in Sections 10, 11, 14, 15, and 16, and we encourage You to review them carefully. You accept without modification all of the terms, conditions, and notices contained in these Terms in order to access and/or use the Service. If You do not accept these Terms in their entirety, You may not access or use the Service. By using the Service, You agree that You are duly authorized by Your corporation or business entity to bind this Agreement, and You agree that You accept without modification all of the terms, conditions, and notices contained in these Terms. Portions of the Service may be governed by posted guidelines, rules, or other terms and conditions. All such guidelines, rules, terms and conditions are hereby incorporated by reference into these Terms. In the event of a conflict between such other guidelines, rules, terms and conditions and these Terms, then these Terms shall supersede any and all conflicts; however, in the case that the UpManager Privacy Policy, referenced below, has any conflicting language and/or any other guidelines, rules, terms and conditions published in connection with the Service that conflicts with these Terms with respect to the subject matter covered the UpManager Privacy Policy, the UpManager Privacy Policy supersedes these Terms. Back to Top 2. MODIFICATION OF THESE TERMS OF USE; UPDATES.UpManager may amend these Terms at any time by (i) posting a revised Terms document on the UpManager website http://upmanager.com ("UpManager Website"), and/or (ii) sending information regarding the Terms amendment to Your contact email address on file with UpManager. You can find the most recent version of the Terms on the Internet at the hyperlink http://upmanager.com/help/terms.aspx. UpManager is not obligated to inform You of new changes or amendments in the Terms when or before the new changes or amended Terms are posted on the UpManager Website. You are solely responsible for regularly reviewing the Terms on the UpManager Website to obtain timely notice of such amendments. You acknowledge that these Terms may be modified without prior notice by UpManager, and You also acknowledge that it is Your sole responsibility to review the Terms regularly. Any changes to the Terms are effective immediately when posted on the UpManager Website. If You do not agree to the changes in the Terms, then You must stop using the Service. You manifest intent to accept all amended Terms if You continue to use the Service after such amended Terms have been posted and made effective on the UpManager Website. Your continued use of the Service after such amendments affirms Your agreement to and Your acceptance of any and all Terms and changes therein.UpManager is not obligated to provide updates or improvements to the Service. However, if UpManager, in its sole discretion, updates or improves the Service, the Terms shall apply to such updates and improvements unless expressly noted otherwise. Further, UpManager reserves the right to modify or discontinue the Service with or without notice to You. UpManager shall not be liable to You or any third party should UpManager exercise its right to modify or discontinue the Service. Back to Top 3. DESCRIPTION OF SERVICE; EQUIPMENT.(a) Description of Service. The UpManager Service allows individuals and organizations to collect and record communication and sales efforts with customers, thereby allowing these efforts to be processed in statistical reports to be used for potential improvement of customer relations and the allotment of control and analyses over these sales efforts.(b) Equipment. Accessing the Service requires that the participant have and maintain a broadband connection to the Internet and have and maintain a current and valid licensed subscription to use the UpManager Service. You are solely responsible for obtaining, installing, maintaining, and operating all computer hardware, software, and Internet access services necessary to use or access any aspect of the UpManager Service. UpManager will not be responsible for any errors or problems that arise from any malfunction, failure, or corruption of Your hardware, software, or any Internet access services. Back to Top 4. REGISTRATION & SUBSCRIPTION; CREDIT/DEBIT CARDS & BANK ACCOUNTS; SUBSCRIPTION RENEWALS; FEES & PAYMENTS; FULL TERM CONTRACT PAYMENTS.(a) Registration & Subscription. As a requirement to use the Service, You must submit a completed Registration Form through a designated UpManager partner to UpManager. The Registration Form requires You to read and fully understand, sign for, duly authorize, and agree to be legally bound to all of the terms and conditions of this Agreement, including the disclaimers and limitations of liability set forth in this Agreement as listed herein. You may complete and submit Your submission of the Registration Form via one of the following methods:(i) submission via the electronic registration process by completing the online Registration Form on the UpManager website and digitally signing by clicking the "Submit" button, or (ii) submission via facsimile by sending a completed and signed printed copy of the Registration Form from the UpManager website to the UpManager fax number (800) 784-7641, or As part of the registration application process for the Service, You agree to: (1) provide certain limited information about You as listed on the Registration Form (such information is to be current, complete and accurate) and (2) maintain and update this information as required to keep it current, complete and accurate. The information requested on the original Registration Form shall be referred to as registration data ("Registration Data"). UpManager will evaluate the registration application in good faith and will notify You in a timely manner regarding acceptance or rejection of Your registration application. If UpManager rejects Your application, then You may reapply and UpManager will reconsider the application. You may not register for this Service if You are under 18 years of age. By registering for this Service, You represent to UpManager that You are 18 years of age or older. Further, UpManager may reject a registration application if it determines in its sole discretion that the user is not an appropriate user of the Service. UpManager need not provide a reason for its choice for any rejection or refusal of Your registration application. Upon Your acceptance of these Terms and completion of the Registration Form, You will have opened an account with UpManager, and after UpManager approves Your Registration Data in the Registration Form as valid and agrees to provide the Service to You, You will become an active subscriber to the UpManager Service. UpManager may at any time terminate Your subscription if UpManager feels in its sole discretion that You are in breach of any of these Terms. UpManager need not provide a reason for its termination of Your subscription. If UpManager discovers at any time that any of Your Registration Data is inaccurate, incomplete or not current, UpManager may terminate Your right to access and receive the Service immediately upon discovery. (b) Credit/Debit Cards & Bank Accounts. As a condition to Your right to use the Service as a Subscriber, You must provide UpManager with a bank account belonging to You with sufficient funds to pay the applicable Subscription Fees via automatic debit. You hereby authorize us to debit all charges described in this Agreement from your bank account. The information You supply us is to be submitted on the Registration Form when You register for an active subscription. In the event that Your bank account information changes or funds in the bank account become insufficient for the required Subscription Fees, You must immediately provide us with a new valid and sufficient bank account. You authorize UpManager, from time to time, to undertake steps to determine whether the bank account You have provided to us is a valid bank account number. In the event that You do not provide us with a valid bank account with sufficient funds for the required Subscription Fees upon request during Your subscription period, You will be in violation of these Terms, and we may suspend Your access and subscription to the Service until You provide us with accurate, valid, and sufficient billing information. We also may terminate this Agreement with You and/or revoke Your Site License, in our sole discretion. (c) Subscription Renewals. Your UpManager subscription will be automatically renewed unless terminated by UpManager or unless You notify UpManager of Your decision not to renew prior to 60 days before the end of Your current subscription term. You acknowledge that it is Your sole responsibility to notify UpManager of Your decision to change and/or terminate Your automatic subscription renewal, and such notification is not the responsibility of UpManager. You also acknowledge that Your subscription will continue to renew automatically unless terminated by UpManager or unless we receive notice from You for Your desire to change Your automatic subscription renewal. Your decision not to renew must be in writing and mailed via certified mail to the UpManager mailing address as listed on the UpManager Website. (d) Fees and Payments. As a condition to Your right to use the Service as an active subscriber, You must pay the applicable Subscription Fees for the Service and Your account must remain in good standing. All annual, monthly or similar periodic fees for Your subscription will be automatically debited from the bank account designated on the Registration Form during the registration process for the Service at the start of the subscription term and on regular intervals according to UpManager's payment schedule for the tenure of the term. These fees will be automatically debited at the start of each subscription term. These fees will continue to be automatically debited on regular intervals according to UpManager's payment schedule on each subsequent renewal term, unless You notify UpManager in writing as outlined herein of Your intention not to renew. You acknowledge that these fees will automatically debited from the bank account on file in Your account, and You acknowledge that if You do not wish to have Your subscription automatically renewed, it is Your sole responsibility to notify UpManager of Your desire to terminate Your subscription prior to the end of Your current subscription term. You agree to pay or have paid all fees and charges incurred in connection with Your subscription for the UpManager Service (including any applicable taxes) at the rates in effect when the charges were incurred. UpManager may terminate Your subscription immediately and/or disable Your access to the Service if it determines in its sole discretion that Your account is not in good standing, or it determines the billing information for Your listed credit card or bank account under Your UpManager account is not accurate. You agree to maintain and update Your billing information as required to keep it current, complete, and accurate, and You acknowledge that it is Your sole responsibility to maintain and update this information. UpManager may change the fees and charges then in effect, or add new fees or charges, by giving You notice in advance. All fees and charges incurred in connection with Your account will be debited from the bank account designated during the registration process for the Service (or to a different bank account if You make a change to Your account information). YOU, AND NOT UPMANAGER, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS DRAFTED FROM YOUR BANK ACCOUNT BY A THIRD PARTY, WHICH WERE NOT AUTHORIZED BY YOU. This Agreement is personal to You and Your corporation or business entity, and You may not assign Your rights or obligations to anyone. (e) Full Term Contract Payments. Once You become an active subscriber of the UpManager Service, You acknowledge and are fully aware that You are obligated to pay the applicable Subscription Fees for the Service for the tenure of the subscription term as listed in the Registration Form. You acknowledge that You will be required to pay the applicable Subscription Fees for the full Subscription Term, regardless of Your lack of activity, access, or discontinued usage of the Service, and You fully acknowledge and are aware that such action does not warrant Your right to terminate Your required payments for the tenure of the Subscription Term. Back to Top 5. GRANT OF LICENSE; INTELLECTUAL PROPERTY & PROPRIETARY RIGHTS; SOFTWARE OWNERSHIP, USAGE & LIMITATIONS.(a) Grant of License. As a condition to Your right to access the Service, You must have and maintain a current and valid licensed subscription to use the Service. UpManager will grant You the following limited end-user software license ("Site License") and rights below to use the Service provided that You have passed the registration process and are an active subscriber to the Service, Your account is in good standing, and You comply with all terms and conditions of this Agreement.A Site License is restricted to one business residence whose business is conducted and located at one physical address location. We will refer to a single business residence location with a single physical address in these Terms as a "Site". A single Site License will not be granted to You to encompass two (2) or more Sites that fall under Your ownership. If You wish to access and use the Service for two (2) or more Sites, a separate Site License must be obtained for each Site. UpManager will not allow or grant a single Site License to group or encompass multiple Sites and will only grant individual Site Licenses on a per Site basis.
You must indemnify and defend UpManager against any claims or lawsuits, including attorneys' fees, that arise from or result from the licensing or distribution of the templates as modified by You. UpManager may at any time revoke the above license, grants and rights to You if You do fail to comply with these Terms, including but not limited to the termination of Your subscription as outlined in Section 3(b) or failure to comply with the required fees & payments as outlined in Section 3(c). Also, UpManager may at any time revoke Your license, grants and rights if UpManager feels in its sole discretion that You are in breach of any of the terms and conditions in this Agreement. UpManager need not provide a reason for its revocation of Your license, grants and rights. (b) Intellectual Property & Proprietary Rights. All content of any UpManager website related to the Service is: Copyright © 2007 UpManager Software, Inc. and/or its suppliers, c/o UpManager Software, Inc., P.O. Box 641, Henderson, Texas 75653, U.S.A. All rights reserved. UpManager may have patents, patent applications, trademarks, copyrights, or other intellectual property rights covering subject matter in any Web pages that are part of the Service. Except as expressly provided in these Terms, the furnishing of such Web pages to You does not give You any license to these patents, trademarks, copyrights, or other intellectual property, any rights not expressly granted herein are reserved. UpManager, upmanager.com, and the UpManager logo, and other names, logos, icons and marks identifying UpManager's products and services are trademarks and/or copyrights of UpManager and may not be used without the prior written permission of UpManager. The names of actual companies and products mentioned herein may be the trademarks of their respective owners. Any example companies, organizations, products, people and events depicted in the Service for demonstration purposes are fictitious. No association with any real company, organization, product, person, or event is intended or should be inferred. You acknowledge that the Service is proprietary to UpManager and may be protected by copyrights, trademarks, product marks, patents or other proprietary rights and laws; therefore, You are only permitted to use the Service with Your Site License as expressly authorized by UpManager and these Terms. You may not copy, reproduce, distribute, lease, loan, rent, timeshare, deliver or otherwise transfer, directly or indirectly, the Site license granted to You (in whole or in part) or create derivative works of the Service without expressly being authorized to do so by UpManager. If You are not the purchaser of the Site License from UpManager, You are not authorized to connect to or otherwise use the Service. Further, You may not reverse engineer, decompile, alter, modify, disassemble or otherwise attempt to derive source code from the Service. All rights not expressly granted in these Terms are reserved to UpManager. (c) Software Ownership, Usage & Limitations. All UpManager content and third-party software (if any) that is made available to view and/or download in connection with the Service ("Software") is owned by and is the copyrighted work of UpManager and/or the respective owners and is licensed, not sold. Your use of the Software is governed by the terms of the license agreement, if any, which accompanies or is included with the Software ("License Agreement"). You may not install or use any Software that is accompanied by or includes a License Agreement unless You first agree to the License Agreement terms. You may not lend, lease, rent or sublicense any Software used to access the Service or any aspect of the Service. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products or services that are part of the Service except as expressly provided in these Terms. You will not disassemble, decompile, or reverse engineer the Software. All Software is protected by copyright laws and international treaty provisions. Any unauthorized reproduction or redistribution of the Software is expressly prohibited by law, and may result in severe civil and criminal penalties. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. THE SOFTWARE IS WARRANTED, IF AT ALL, ONLY ACCORDING TO THE TERMS OF THE LICENSE AGREEMENT. You acknowledge that the Software, and any accompanying documentation and/or technical information, is subject to applicable export control laws and regulations of the U.S.A. You agree not to export or re-export the Software, directly or indirectly, to any countries that are subject to U.S.A. export restrictions. Your acknowledge that Your license to use the Software with the Service may terminate if UpManager and/or the third-party software vendors, in their sole discretion, modifies the Service to no longer support such Software. Further, You may only use authorized third-party software to sign into and use the Service. You can find a list of authorized third-party software at http://upmanager.com/help/authorized.aspx. Back to Top 6. NO UNLAWFUL OR PROHIBITED USE; CONDUCT & RESPONSIBILITY FOR YOUR ACCOUNT; PASSWORDS & SECURITY.(a) No Unlawful or Prohibited Use. Your use of the Service is subject to all applicable local, state, national and international laws and regulations (including without limitation those governing account collection, export control, consumer protection, unfair competition, anti-discrimination or false advertising). As a condition to Your use of the Service, You agree: (1) to comply with all United States laws, rules and other regulations applicable in connection with the Service; (2) not to use the Service for illegal purposes; (3) not to interfere or disrupt networks connected to the Service; (4) not to use the Service to infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (5) not to transmit through the Service, through Feedback or otherwise, any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature; and (6) not to execute or attempt to execute the breaking and entering of other accounts with the Service that are not Your own.(b) Conduct & Responsibility for Your Account. You are solely responsible for the content of Your transmissions sent and data stored in Your account associated with the Service. UpManager does, however, reserve the right to take any action with respect to the Service that UpManager deems necessary or appropriate in UpManager's sole discretion if UpManager believes You or Your transmissions or use of the Service may create liability for UpManager. UpManager reserves the right at all times to monitor collected data on the Service and disclose any information UpManager deems necessary to (i) ensure Your compliance with this Agreement; (ii) satisfy any applicable law, regulation or legal process; or (iii) protect the rights, property, and interests of UpManager, its employees or the public. UpManager also reserves the right to edit, refuse to transfer or to remove any information or materials, in whole or in part, in UpManager's sole discretion. UpManager does not control or endorse the content or information exchanged by means of the Service and, therefore, UpManager specifically disclaims any liability with regard to the Service and any actions resulting from Your participation in the Service and its deliverables. In the event You use the Service for any purpose that is unlawful or illegal, You acknowledge that You remain solely liable for Your actions; You fully acknowledge that UpManager is not liable for these actions; and You shall not attempt to hold UpManager responsible for Your actions. Subject to these Terms and in accordance with Your authorized use of the Service, You may use the Service within Your corporation or business entity to help manage the buying or selling of goods and services within Your organization, but You may not use the Service as an advertisement of Your own goods or services sold to others. UpManager is not responsible and shall not be held liable for any loss of profit revenue resulting from Your usage or non-usage of the Service. You may not use access to the Service to obtain information necessary for You to design, develop or update unauthorized software that You use or provide to others to use to access the Service. You may not charge others to use the Service either directly or indirectly without the express written agreement of UpManager. (c) Passwords & Security. You are responsible for all activity associated with Your Service accounts and passwords associated with Your Site. You must immediately notify UpManager of any use of Your Service account that You did not authorize or any breach in security known to You that relates to the Service. Do not provide Your Service account, password and relevant information to third parties. You may not authorize any third party to access and/or use the Service on Your behalf. You may also not use any automated process or service to access and/or use the Service such as a BOT, a spider or periodic caching of information stored by UpManager. You may not use any software or services with UpManager software or authorized third-party software which modifies or reroutes, or attempts to modify or reroute, the Service. As part of the Service, You will be assigned a username and password to access Your account for the Service. You agree to carefully safeguard all of Your usernames and passwords. You are solely responsible if You do not maintain the confidentiality of usernames and passwords and account information. Furthermore, You are solely responsible for any and all activities that occur under Your account. You agree to immediately notify UpManager of any unauthorized use of Your account or any other breach of security known to You, including if You believe that a username or password or account information has been stolen or otherwise compromised. You will not gain or attempt to gain unauthorized access to any account or database that is not Your own or computer systems or networks not Your own that is associated with the Service, and You will not interfere with another user's use and enjoyment of the Service. UpManager reserves the right at all times to monitor Your access to the Service to help protect the Service against unauthorized access. If UpManager determines in its sole discretion that You are in violation of attempting to gain unauthorized access to the Service, UpManager reserves the right to terminate Your access to and permanently remove You from the Service, as well as contact appropriate authorities to take necessary action against You for Your unauthorized access attempts and breach of security to the Service. Back to Top 7. PRIVACY AND PROTECTION OF PERSONAL INFORMATION.UpManager's use of any personal information You provide us is set out in the UpManager Privacy Statement. See the UpManager Privacy Statement for disclosures relating to the collection and use of Your information and Service account data.Back to Top 8. INTERACTION WITH THIRD PARTY SITES AND SERVICES.The Service may allow You to interact with third-party Web sites and Web services ("Link(s)"). The Links are not under the control of UpManager and UpManager is not responsible for the contents of any Links, including without limitation any link contained in a Link, or any changes or updates to a Link. UpManager is not responsible for any form of transmission received from any Link, nor is UpManager responsible if the Link is not working appropriately. UpManager is providing these Links to You only as a convenience, and the inclusion of any Link does not imply endorsement by UpManager of the Link or any association with its operators. You are responsible for viewing and abiding by any privacy statements and terms of use posted in connection with the Links.You are solely responsible for any dealings with third parties (including advertisers) who support the Service, including the delivery of and payment for goods and services. Back to Top 9. MATERIALS YOU POST OR PROVIDE.When using the Service, we may ask or allow You to submit materials for use in connection with the Service. For materials You post or otherwise provide to UpManager related to the Service (a "Submission"), You acknowledge and grant UpManager full permission to (1) use, copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, modify, translate and reformat Your Submission(s), each in connection with the UpManager Service, and (2) sublicense these rights. This includes but is not limited to customer feedback, testimonials, and/or comments You provide to UpManager. UpManager will not pay You for Your Submission. UpManager may remove Your Submission at any time, and may keep and have full permission on Your Submission indefinitely.Back to Top 10. TERMINATION; SERVICE AND DATA ACCESS RIGHTS AND RESTRICTIONS; NON-TRANSFERABILITY BY YOU, TRANSFERABILITY BY US.(a) Termination. Unless You, or a third party on Your behalf, have entered into a separate written agreement priorly approved by and with UpManager that modifies these Terms, UpManager reserves the right, in its sole discretion, to terminate Your subscription, Your Site License, and/or Your access to and use of the Service or any portion thereof at any time, without notice. Also, UpManager may terminate or suspend Your access to the Service for insufficient funds, which is defined as failing to provide payment or failing to provide accurate billing information with sufficient credit and/or funds to UpManager for Your subscription to the Service for an extended period of time, as determined by UpManager. Additionally, if at any time UpManager feels You are in violation these Terms or are using the Service in an unlawful manner, UpManager reserves the right to terminate Your subscription, Your Site License, and/or Your access to the Service. Further, UpManager may immediately terminate Your subscription, Your Site License, and/or Your right and access to use the Service if (1) You breach these Terms; (2) UpManager is unable to verify or authenticate any information You provide to UpManager; (3) such information is inaccurate; or (4) UpManager decides, in its sole discretion, to discontinue offering the Service. UpManager shall not be liable to You or any third party for termination of the Service or termination of Your subscription to the Service.Further, You acknowledge and agree that all outstanding charges owed to UpManager by You will remain Your liability after termination or suspension of Your subscription or automatic subscription renewal, and termination of Your subscription to the Service does not void any overdue charges owed by You, including but not limited to any subsequent charges or liabilities due to UpManager, if applicable. In the event Your billing information is found to be inaccurate or insufficient, UpManager shall send notification statements and invoices for Your remaining unpaid balances to Your physical mailing address, as listed on the Registration Form (or to a different physical mailing address if You make a change to Your account information). (b) Service and Data Access Rights and Restrictions You fully acknowledge and understand that at any time You may not assume that You have the right to obtain ownership of data stored in conjunction with the Service. In the event Your subscription, Your Site License, and/or Your right and access to the Service has been suspended and/or terminated, You may not obtain, request, access, or inquiry into any data that has been stored in conjunction with the Service up and to the time of such suspension and/or termination, nor shall You assume that You have the right to obtain ownership of data stored in conjunction with the Service after such suspension and/or termination. UpManager in its sole discretion may or may not grant You the right to obtain any data stored in conjunction with the Service, and all requests for data stored in conjunction with the Service is outlined in Section 11. (c) Non-transferability by You, Transferability by Us. The terms and conditions, subscriptions, licenses and rights in these Terms shall not be assigned or transferred by You to another entity, regardless of merger, consolidation, liquidation, or sale of assets, without the prior written consent of UpManager, and any attempt to the contrary is void. Upon proper written notification to You, UpManager reserves the right to legally reassign and/or transfer the binding of this entire Agreement, including Your Site License and/or Your subscription to the Service, that exists between You and UpManager to exist between You and another entity. You fully acknowledge and understand that UpManager may make this reassignment and transfer of this entire Agreement, including Your Site License, to another entity, and You acknowledge that You are fully aware that such transfer is a legal and valid transaction and reassignment of this Agreement between You and the assigned entity. You also acknowledge that all Terms of this Agreement will remain in full force with without any modifications, alterations, additions, or subtractions thereof between You and the assigned entity, and any changes made in the Agreement between You and the assigned entity must be fully expressed in writing and agreed to by You and the assigned entity. Back to Top 11. DATA TRANSFER RIGHTS & SERVICES.UpManager does not provide free data transfer services. Moreover, You hereby fully acknowledge and agree that You do not have any ownership rights to data stored in conjunction to the Service. UpManager, in its sole discretion, may agree to offer data transfer services, and such offering of data transfer services may require You to pay data transfer fees, as outlined by UpManager. UpManager reserves the right, in its sole discretion to discontinue the offering of data transfer services at any time without prior notice. Also, UpManager reserves the right, in its sole discretion, to not provide data transfer services. If You wish to obtain data stored in conjunction with the Service, You may request UpManager to provide data transfer services to You. Such data transfer services, if offered by UpManager, shall be delivered to You according to the methods and specifications that UpManager deems fit. In the event Your subscription, Your Site License, and/or Your right and access to the Service has been suspended and/or terminated and You request for UpManager to provide data transfer services, there may be additional charges for such data transfer services, and UpManager reserves the right in its sole discretion to not offer data transfer services to You based on such suspension and/or termination. In the event You request to obtain data stored in conjunction with the Service at any time and such offering of data transfer services is not available or made available to You, You hereby adhere to and deem acceptable UpManager's denial of data transfer services to You. Further, You hereby agree, at Your expense, to indemnify, defend and hold UpManager, its parents, subsidiaries, affiliates, officers, and employees, harmless from and against any claim or demand of loss, cost, damages, liability or expense, including reasonable attorneys' fees, arising out of or relating to without limitation Your absence of rights to data stored in conjunction to the Service and/or UpManager's denial of data transfer services to You.Back to Top 12. CUSTOMER SUPPORT & THIRD-PARTY SUPPORT.UpManager may, but is not required to, provide You with customer support ("Support"). Unless You have entered into a separate written support agreement with UpManager with respect to the Service, UpManager may terminate any Support it provides at any time in its sole discretion.Authorized third-party software that uses the Service is not supported by UpManager and You should contact the provider of such software for support, if any. Back to Top ELECTRONIC NOTICES.You consent to UpManager providing You any information regarding the Service in electronic form. UpManager may provide such information to You via e-mail at the e-mail address You specified when You registered for the Service, or by Your access to website owned by UpManager. As long as You access and use the Service, You must have the necessary software and hardware to receive such notices. If You do not consent to receive any notices electronically, You must discontinue Your use of the Service.Back to Top 14. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY; EXCLUSIVE REMEDY.UPMANAGER PROVIDES THE SERVICE AND THE SOFTWARE "AS IS," "WITH ALL FAULTS" AND "AS AVAILABLE," AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. UPMANAGER, ITS AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, SUCCESSORS, ASSIGNS, AFFILIATES, RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS AND/OR SUPPLIERS (COLLECTIVELY, THE "UPMANAGER PARTIES") MAKE NO WARRANTIES. THE UPMANAGER PARTIES DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, STATUTORY AND IMPLIED, INCLUDING WITHOUT LIMITATION (1) WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND NON-INFRINGEMENT, (2) WARRANTIES ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND (3) WARRANTIES THAT ACCESS TO OR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FACE OF THIS AGREEMENT. UPMANAGER MAY CHANGE THE SERVICE OR THE FEATURES IN ANY WAY, AND AT ANY TIME AND FOR ANY REASON.IN NO EVENT SHALL ANY OF THE UPMANAGER PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDING LOSS OF PROFIT REVENUE OR USE) ARISING OUT OF, BASED ON, OR RESULTING FROM THIS AGREEMENT OR YOUR USE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, LOSS OF DATA AND/OR DAMAGE TO DATA, OR LOSS OF PROFITS FROM ANY CAUSE, INCLUDING BUT NOT LIMITED TO, THE DELAY OR INABILITY TO USE THE SERVICE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR FOR THE ABSENSE OR PRESENSE OF ANY INFORMATION, SOFTWARE, PRODUCTS, OR SERVICES OBTAINED THROUGH THE SERVICE, OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF UPMANAGER OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY EXCEPT AS EXPRESSLY PROVIDED HEREIN. THE FOREGOING LIMITATIONS APPLY REGARDLESS OF THE CAUSE OR CIRCUMSTANCES GIVING RISE TO SUCH LOSS, DAMAGE, OR LIABILITY, EVEN IF SUCH LOSS, DAMAGE OR LIABILITY IS BASED ON NEGLIGENCE OR OTHER TORTS OR BREACH OF CONTRACT (INCLUDING FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM). BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. YOU AND UPMANAGER AGREE THAT ANY CAUSE OF ACTION ARISING OUR OF OR RELATED TO THIS AGREEMENT MUST COMMENCE WITHIN THREE (3) MONTHS AFTER THE CAUSE OF ACTION ACCRUES, OR IN THE CASE OF NONPAYMENT, WITHIN THREE (3) MONTHS FROM THE DATE OF LAST PAYMENT. OTHERWISE, BOTH PARTIES ACKNOWLEDGE AND AGREE THAT SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. YOU ACKNOWLEDGE THAT YOU HAVE THOROUGHLY READ AND FULLY UNDERSTAND THESE TERMS LISTED HEREIN, AND, SHOULD YOU OBJECT TO ANY TERMS AND CONDITIONS OF THE TERMS OR BECOME DISSATISFIED WITH ANY PORTION OF THE SERVICE, YOUR ACKNOWLEDGE AND UNDERSTAND THAT YOUR SOLE AND EXCLUSIVE RECOURSE AND REMEDY IS TO IMMEDIATELY: (A) DISCONTINUE USE OF THE SERVICE; AND (B) NOTIFY UPMANAGER OF YOUR REQUEST TO TERMINATE YOUR AUTOMATIC RENEWAL SUBSCRIPTION, IF APPLICABLE. YOU ACKNOWLEDGE THAT YOU HAVE THOROUGHLY READ AND FULLY UNDERSTAND THESE TERMS LISTED HEREIN, AND, SHOULD YOU OBJECT TO ANY TERMS AND CONDITIONS OF THE TERMS OR BECOME DISSATISFIED WITH ANY PORTION OF THE SERVICE, YOUR ACKNOWLEDGE AND UNDERSTAND THAT YOUR SOLE AND EXCLUSIVE RECOURSE AND REMEDY IS TO IMMEDIATELY: (A) DISCONTINUE USE OF THE SERVICE; AND (B) NOTIFY UPMANAGER OF YOUR REQUEST TO TERMINATE YOUR AUTOMATIC RENEWAL SUBSCRIPTION, IF APPLICABLE. Back to Top 15. DISPUTE RESOLUTION ACKNOWLEDGEMENT; GOOD FAITH NEGOTIATION; ABRITRATION; RELIEF IN AID OF ARBITRATION.(a) Dispute Resolution Acknowledgment. You acknowledge that UpManager possesses valuable confidential and proprietary information, including trademarks and business practices, which, if revealed in open court, would be damaging to UpManager. The parties further acknowledge and agree that it is preferable to resolve all disputes between them confidentially, individually, and in an expeditious and inexpensive manner. The parties accordingly acknowledge and agree that private dispute resolution is preferable to court actions.(b) Good Faith Negotiation. Before commencing any arbitration in the manner set out in Subsection 15 (c) below, the parties shall first attempt to resolve any dispute or differences between them by way of good faith negotiation. The good faith negotiation shall commence by each party communicating their position regarding the complaint, claim, dispute, or controversy to the other party, and how the parties should resolve the dispute. The parties shall then make good faith efforts to negotiate a resolution of the claim, dispute, or controversy. Neither party shall commence any arbitral proceedings unless and until the good faith negotiation fails. (c) Arbitration. ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS CAPABLE IN LAW OF BEING SUBMITTED TO BINDING ARBITRATION) AGAINST UPMANAGER, ITS AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, SUCCESSORS, ASSIGNS, AFFILIATES, RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS AND/OR SUPPLIERS (COLLECTIVELY, THE "UPMANAGER PARTIES") arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships between the parties, whether pre-existing, present or future, (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), UpManager's advertising, or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE NATIONAL ARBITRATION FORUM ("NAF") under its Code of Procedure and any specific procedures for the resolution of small claims and/or consumer disputes then in effect (available via the Internet at http://www.arb-forum.com, or via telephone at 1-800-474-2371). The arbitration will be limited solely to the dispute or controversy between You and UpManager. Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. Information may be obtained and claims may be filed with the NAF at P.O. Box 50191, Minneapolis, MN 55405, or by e-mail at file@arb-forum.com, or by online filing at http://www.arb-forum.com. (d) Relief in Aid of Arbitration. Notwithstanding the provisions in this Section 15 or anywhere else in this Agreement, UpManager shall have the right to seek and obtain any provisional or interim relief from any court of competent jurisdiction to protect its trademark or property rights or to preserve the status quo pending good faith negotiation and/or arbitration. You hereby agree, at Your expense, to indemnify, defend and hold UpManager, its parents, subsidiaries, affiliates, officers, and employees, harmless from and against any claim or demand of loss, cost, damages, liability or expense, including reasonable attorneys' fees, arising out of or relating to without limitation any third-party claim, action or allegation of infringement based on information, data, files or other content submitted by You in conjunction with Your use of the Service; any fraud or manipulation, or other breach of these Terms by You; any third-party claim, action or allegation brought against UpManager arising out of or relating to a dispute between its users over the terms and conditions of a contract or related to the purchase and sale of any services; or the infringement by You, or other user of the Service using Your account or identity, of any intellectual property or other right of any person or entity. Back to Top 16. INDEMNITY.You hereby agree, at Your expense, to indemnify, defend and hold UpManager, its parents, subsidiaries, affiliates, officers, and employees, harmless from and against any claim or demand of loss, cost, damages, liability or expense, including reasonable attorneys' fees, arising out of or relating to without limitation any third-party claim, action or allegation of infringement based on information, data, files or other content submitted by You in conjunction with Your use of the Service; any fraud or manipulation, or other breach of these Terms by You; any third-party claim, action or allegation brought against UpManager arising out of or relating to a dispute between its users over the terms and conditions of a contract or related to the purchase and sale of any services; or the infringement by You, or other user of the Service using Your account or identity, of any intellectual property or other right of any person or entity.Back to Top 17. GENERAL TERMS.These Terms are governed in all respects by the laws of the State of Texas as such laws are applied. You hereby irrevocably consent to the exclusive jurisdiction and venue of courts in Rusk County, Texas, U.S.A. in all disputes arising out of or relating to the use of the Service. You agree that no joint venture, partnership, employment, or agency relationship exists between You and UpManager as a result of this Agreement or use of the Service. UpManager may assign this Agreement, in whole or in part, at any time. UpManager's performance of this Agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of UpManager's right to comply with governmental, court and law enforcement requests or requirements relating to Your use of the Service or information provided to or gathered by UpManager with respect to such use.If any provision of this Agreement is held to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then such provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision as determined by UpManager and the remainder of the agreement shall continue in effect. The provisions of this Agreement governing disclaimers of warranties, liability limitation, indemnity obligations, intellectual property and governing law shall survive termination of the Agreement. UpManager's failure to act with respect to a breach by You does not waive UpManager's right to act with respect to subsequent or similar breaches. This Agreement shall inure to the benefit of and be binding upon each party's successors and assigns. UpManager shall not be liable for any delay or failure to perform resulting directly or indirectly from any causes beyond UpManager's reasonable control. Unless otherwise provided in this Agreement, any required correspondence permitted to be given under this Agreement shall be delivered (i) by hand; (ii) by registered or certified mail, postage prepaid and return receipt requested to the address provided by the other party, or to such other address as a party may designate by written notice in accordance with this Section 15; (iii) by overnight courier or (iv) by electronic mail in conjunction with a confirmation letter mailed under the conditions described in (ii). Notice so given shall be deemed effective when received, or if not received by reason of fault of addressee, when delivered. You understand and agree that You are solely responsible for periodically reviewing these Terms on a regular basis. You must report any violations of these Terms. To do so, send an email to UpManager through the "Contact Us" page on the UpManager Website. This Agreement, including the documents expressly incorporated by reference above, constitute the complete and exclusive understanding agreement between You and UpManager with respect to the Service, and such agreements supersede all prior or contemporaneous understandings, proposals, communications, agreements, negotiations and discussions between the parties, whether electronic, oral or written, between the user and UpManager with respect to the Service. A printed version of the most current version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Back to Top |
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