UPLYNK, INC.
MASTER SERVICES AGREEMENT
This Master Services Agreement, including all exhibits,supplements, appendices, and policies attached or referenced herein (the “Agreement”) are between Uplynk, Inc., its Affiliates and subsidiaries(together, “Uplynk”) and the other signatory to the applicable Service Order (“Customer”) (each, a “Party”and collectively, the “Parties”).
The Applicable terms of this Agreement also govern the use of Free, Trial or BetaServices offered by Uplynk. By clicking on a box to indicate your acceptance or by otherwise using Uplynk’s Free, Trial or Beta Services, You agree to these terms and conditions and consent to be bound by the same. If You are acting on behalf of an entity, you represent that you have the authority to bind the entity to these terms and conditions. If You do not have the authority or You do not agree to these terms and conditions, You or the entity you represent may not use the Services.
In consideration of the mutual promises herein,the Parties agree as follows:
1. DEFINITIONS.
1.1. “Affiliate” means an entity directly or indirectly Controlled by,Controlling or under common Control with a Party, now or in the future. An entity shall “Control" another entity when it owns more than 50% of theequity or other voting interests, or otherwise has primary management oroperational responsibility.
1.2. “Change of Control” means one or moretransactions whereby (a) Control of a Party is transferred, directly orindirectly, whether by operation of law or otherwise, (b) all or substantiallyall of such Party’s assets or equity securities are acquired by a person, firmor entity or (c) such Party is merged or consolidated with or into anotherentity; provided, that, in any case, such Party's equity owners ofrecord immediately before such transaction(s) shall, immediately after suchtransaction(s), hold less than 50% of the voting power of the succeeding,acquiring or surviving entity.
1.3. “ConfidentialInformation” means proprietary,nonpublic or trade secret information, disclosed in written, oral or visualform, that the disclosing Party, its Affiliates or agents (each, "Disclosing Party") provides to thereceiving Party, its Affiliates or agents (each, "Receiving Party") and that Disclosing Party designates asbeing confidential or, if disclosed orally, states at the time of initialdisclosure, or if not so marked or stated should reasonably have beenunderstood as confidential to Disclosing Party, either because of thecircumstances of disclosure or the nature of the information itself and that(a) relates to Disclosing Party, its products, services, developments, tradesecrets, know-how or personnel; and (b) is received by Receiving Party fromDisclosing Party during the Term.
1.4. “CustomerContent” means any digitalassets, including application code or software (“Application Code”), and dataprovided by Customer for storage, delivery or other processing or use associatedwith the Services, uploaded or routed to, passed through and/or stored on orwithin Uplynk's Services or otherwise provided to Uplynk.
1.5. “EndUser” means a subscriber, member or other visitor of an online site orservice owned and/or operated by Customer who uses, benefits from or accessesthe Services.
1.6. “End User Data” means information that identifies an End User and isnecessary to implement and use the Services, including IP address.
1.7. “IntellectualProperty Rights” means all patents, copyrights, trade secrets, trademarksand service marks, trade names, trade dress, goodwill and marketing rightsrelated thereto, works of authorship, inventions, discoveries, improvements,enhancements, methods, processes, formulas, designs, techniques, derivativeworks, know how, all other intellectual property or proprietary rights(registered or not) and equivalents or similar forms of protection existingworldwide, and all applications for and registrations in such rights.
1.8. “ServiceOrder” or "SO" means a specification ofServices to be performed by Uplynk and the associated fees or charges, asagreed and fully executed by the Parties.
1.9. “Services”has the meaning set forth in Section 2 below and, as applicable, Beta Services
1.10. “Service Level Agreement” or “SLA”means the service level agreement applicable to the Services as may be setforth in the applicable Service Supplement.
1.11. “ServiceSupplements” means the documentation available at https://connect.uplynk.com/hubfs/Edgio%20Service%20Supplements/EDGIO-Landing-Page-Online-Supplements.pdf or otherwise attached to a SO, which sets forth the description, rates, servicelevels and other applicable terms for the applicable Services.
1.12. “Statementof Work” or “SOW” means aspecification of the non-standard (i.e., custom or professional) Services to beperformed by Uplynk and the associated fees or charges, as agreed by theParties.
1.13. “Taxes” means any applicable taxes, tax-likecharges, tax-related charges and other charges or surcharges, including allexcise, use, sales, value-added and other fees, surcharges and levies.
2. SERVICES.
2.1. Services. Uplynkshall provide the Services to Customer as specified in an SO or SOW, subject tothe terms and conditions herein (including any applicable SO, SOW and/orService Supplement terms, which are deemed incorporated herein). Services will be provided at the levelsspecified in the applicable Service Level Agreement, if any. Customer’s sole and exclusive remedy for anyinterruption, failure, defect, impairment or inadequacy of the Services isspecified in the Service Level Agreement.
2.2. Acceptable Use, Technical Cooperation.
a. Customer is responsiblefor and assumes all liabilities arising out of or related to CustomerContent. Uplynk is a mere intermediary(i.e., passive conduit) for Customer Content and does not exercise editorial orother control over Customer Content. If Uplynkdetermines in its sole discretion that Customer Content or any use of theServices may compromise the Services, is inappropriate or violates or isinconsistent with the AUP or the rights of others (“Adverse Impact”), Uplynk may take such steps as necessary toresolve the Adverse Impact and will use commercially reasonable efforts to avoidany undue interruption of Services and the foregoing is without prejudice toand shall not preclude or limit any other rights and remedies available to Uplynk..
b. For Services to functionas intended, Customer should cooperate in good faith with Uplynk to configureand enable Services. When Customerelects to send or receive Customer Content using the Services, Customer issolely responsible for modifying its content identifiers, consistent withguidance that Uplynk provides, to enable Uplynk to deliver the selectedCustomer Content.
c. Given the nature of theServices, Customer is solely responsible for (i) all activity occurring onCustomer's Uplynk account (ii) all resulting charges and costs and (iii)implementing any monitoring, defensive or protective tools or measures (whetheroffered by Uplynk or a third party) related to Customer’s account. Customer is solely responsible forimplementing token authentication and maintaining the security of Customer's Uplynkaccount login credentials and any other information used to gain access toServices. Customer is solely responsiblefor backing up all Customer Content and Customer Data. “CustomerData” means information that identifies Customer, that is provided to Uplynk for purposes of account creation, billing, authentication, authorization orconfiguration, and may include Customer’s name, contact and billinginformation, IP address, hostnames and other metadata required for Servicesconfiguration (e.g., ingest).
2.3. Use of Suppliers/Subcontractors. Except as otherwise required by law, Uplynk may at any time, and without notice, use the services of one or more suppliers or subcontractors in connection with the performance of its obligations under this Agreement.
2.4. Order of Precedence. To the extent there is any conflict between aSO or SOW, a Service Supplement and the terms and conditions of this Agreement,the order of precedence is: (a) SO, (b) SOW; (b) Service Supplement (in respectof the Services being provided under that Service Supplement only); and (c) theterms and conditions of this Agreement.
3. CHARGES AND PAYMENT.
3.1. Taxes. All charges are exclusive of Taxes, whichCustomer must pay. If Customer provides Uplynk with a valid, duly executed tax exemption certificate, Uplynk shall exemptCustomer from Taxes in accordance with the law, effective on the date Uplynk receives the exemption certificate. IfCustomer disputes the application of any Tax, Customer must give Uplynk writtennotice of the dispute within six months of the date of the invoice. Otherwise, such application of Taxes, as between Uplynk and Customer, shall bedeemed correct and binding on Customer. If Customer is required by law to make any deduction or withholding fromany payment due hereunder to Uplynk, then notwithstanding anything to thecontrary in this Agreement, the gross amount payable by Customer to Uplynkshall be increased so that, after any such deduction or withholding for taxes,the net amount received by Uplynk shall not be less than Uplynk would havereceived had no such deduction or withholding been required.
3.2. Payment.
a. Payment is due within 30days of invoice date. All invoices maybe provided to Customer electronically. Customer shall remit payment to Uplynk at its principal offices, unless Uplynkprovides notice to Customer otherwise. All charges shall be invoiced and payable in United States dollars,unless otherwise mutually agreed in writing.
b. If an invoice is unpaid within 30 days of the invoice date (i.e., the invoice becomes delinquent), Uplynk may, in its sole discretion and effective upon notice to Customer, (i) suspend Services, (ii) apply a late charge on the unpaid amount equal to the lesser of1.5% interest per month or the maximum rate allowed by law, (iii) require Customer to provide a cash deposit or other security to guarantee payment and/or (iv) pursue any other remedy available under this Agreement, at law or in equity.
c. If Customer desires todispute in good faith an invoiced amount, Customer shall, within 30 days of theinvoice date, (i) pay the invoiced amount and (ii) provide notice of thedetails of the dispute, together with all supporting documentation. The Parties shall work diligently to promptlyresolve the dispute and upon resolution, (1) Uplynk shall promptly credit toCustomer any amount found to be owed to Customer or (2) Customer shall promptlypay to Uplynk all amounts found to be owed to Uplynk. If Customer does not timely submit adocumented dispute notice per this Section, Customer waives all rights todispute such amounts, including any claim of set-off or reimbursement.
d. If Uplynk reasonablydeems itself insecure with respect to Customer’s ability to pay (e.g., due toCustomer's withdrawal of credit card authorization for automatic payment), Uplynk may, in its sole discretion and effective upon notice to Customer, (i) modifyCustomer’s payment terms and/or (ii) require Customer to provide a cash deposit or other security to guarantee payment.
4. GRANT OF RIGHTS, INTELLECTUAL PROPERTY.
4.1. Uplynk grants toCustomer the right to access and use the Services during the Term solely forthe purposes of this Agreement. Subject only to the foregoing, Uplynk retains all worldwide rights, title and interestin and to the Services, Uplynk equipment, network and methodologies, softwareand Intellectual Property Rights embodied therein or related thereto, wheneverdeveloped. Customer shall not eitherdirectly or indirectly, reverse engineer, decompile, disassemble or otherwiseattempt to derive source code, nonpublic APIs, or other trade secrets from anyServices (including any related software, hardware or information).
4.2. Customer grants toUplynk, and its agents, suppliers and subcontractors, the right to access anduse, ingest, reproduce, duplicate, format, store, distribute, display andperform Customer Content and associated metadata as necessary to provide theServices. Subject only to the foregoing,Customer retains all rights, title and interest in and to Customer Content andIntellectual Property Rights embodied therein or related thereto. Uplynk shall not, either directly orindirectly, reverse engineer, decompile, disassemble or otherwise attempt toderive source code or other trade secrets from Customer Content.
4.3. To the extent theServices involve the provision of software, such as code, interfaces, scripts,tools, files and libraries, to Customer, Uplynk grants, subject to all termsand conditions of this Agreement, a non-exclusive, non-transferable,non-sublicensable license during the Term to use such software solely for itsinternal business purposes in implementing and using the Services.
5. DATA. TheParties acknowledge and agree that (a) Uplynk, shall, by virtue of providing Services, come into possession of Customer Data and End User Data, (b) any processing of such data occurs exclusively at the direction and discretion of Customer, as exercised through workflows or other agreed means and (c) Uplynk mayuse, process and/or transfer Customer Data, and End User Data (including transfers to entities in countries that do not provide statutory protections for personal data) (i) in connection with providing Services and (ii) as applicable, to incorporate Customer Data into databases controlled by Uplynk and its Affiliates for the purpose of administration, provisioning, invoicing and reconciliation, verification of Customer identity and solvency,maintenance, support and product development, fraud detection and prevention,sales, revenue and Customer analysis and reporting, marketing and Customer use analysis. . To the extent applicable, Uplynk will process any Customer Data andEnd User Data in accordance with Uplynk’s Data Protection Addendum, available upon request. Uplynk’s Privacy Policy is available at uplynk.com/legal/privacy-policy. Customer further acknowledges and agrees that (x) applications provided by Uplynk that involve the storage of information are not designed or intended for use with protected health information (“PHI”),as defined by the Health Insurance Portability and Accountability Act of 1996,as amended by the Health Information Technology for Economic and ClinicalHealth Act and implemented by regulation; and (y) therefore, they must not beused to create, store, transmit or receive PHI.
6. CONFIDENTIALITY. During the Term and for three years thereafter, Receiving Party shall not use, copy or disclose ConfidentialInformation except as permitted herein. All copies of Confidential Information remain the sole property of Disclosing Party. Receiving Party shallprotect Disclosing Party’s Confidential Information using at least the sameprocedures as it uses to protect its own Confidential Information, but no lessthan reasonable procedures. ReceivingParty may disclose Confidential Information to its employees, consultants andcontractors who have a need to know in connection herewith and who haveexecuted a similarly stringent confidentiality agreement or are subject to aprofessional duty of confidentiality. Receiving Party also may disclose Confidential Information pursuant toapplicable law, regulation, subpoena or other order of a court of competentjurisdiction (collectively, “LegalRequirement”) or to establish rights or obligations under this Agreement inany proceeding; provided, that (1) reasonable prior notice, unlesslegally prohibited, is provided to Disclosing Party sufficient to permitDisclosing Party an opportunity to contest such disclosure (2) Receiving Party cooperates with Disclosing Party in complying with any applicable protectiveorder or equivalent and (3) Receiving Party discloses only to the extentnecessary to comply with the Legal Requirement or to establish such rights orobligations. Receiving Party shallnotify Disclosing Party upon discovery of any unauthorized use or disclosure ofConfidential Information and shall cooperate to help Disclosing Party preventfurther unauthorized use or disclosure. Receiving Party acknowledges that Disclosing Party’s ConfidentialInformation is valuable and unique and that unauthorized use or disclosure mayresult in irreparable injury to Disclosing Party for which monetary damages areinadequate. If Receiving Party violatesor threatens to violate this Section 6, Disclosing Party shall be entitled toseek injunctive relief without the need to post bond, in addition to any otheravailable legal or equitable remedies.
7. REPRESENTATIONS AND WARRANTIES.
7.1. Each Party represents andwarrants that: (a) it possesses the full right, power and authority to enterinto and fully perform the Agreement and grant the rights granted herein; (b)it has obtained and shall comply with, and make any necessary payments due inconnection with, all required authorizations, approvals, licenses or permitsfrom all third parties, government authorities or otherwise in order for it toenter into and perform its obligations herein; (c) it is not bound by anycontractual or other legal obligation that would prevent it from entering intoor performing its obligations herein; (d) the execution, delivery andperformance of this Agreement has been duly authorized by all necessarycorporate action; and (e) it shall comply with all applicable laws, rules andregulations in its performance hereunder.
7.2. Customerrepresents and warrants that it has obtained and maintains all legally requiredconsents and permissions for the use, processing and transfer of CustomerContent, Customer Data and End User Data provided to Uplynk, and that it will use the Services in accordance with all associatedDocumentation.
8. DISCLAIMER. UPLYNK PROVIDES THE SERVICES “AS IS” AND DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. UPLYNK DOES NOT WARRANT THAT ITS NETWORK, COMPUTER SYSTEMS,AND SERVICES ARE FULLY SECURE AND UPLYNK DOES NOT WARRANT THAT USE OF ANY OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT UPLYNK WILL CORRECTALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS TO THE SERVICES.
9. LIMITATION OF LIABILITY. EXCEPT FOR EACH PARTY’S OBLIGATIONSUNDER SECTION 6 (CONFIDENTIALITY) AND CUSTOMER’S OBLIGATIONS UNDER SECTION2.2(A) (ACCEPTABLE USE, TECHNICAL COOPERATION), INNO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL,CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING LOSTREVENUES, PROFITS OR GOODWILL, LOST OR DAMAGED CUSTOMER CONTENT OR DATA, LOSTCUSTOMERS, BUSINESS INTERRUPTION OR REPLACEMENT SERVICES, HOWEVER CAUSED ANDREGARDLESS OF THEORY OF LIABILITY, WHETHER OR NOT SUCH PARTY KNEW OR HAD REASONTO KNOW OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT THE REMEDIESPROVIDED FOR HEREIN FAIL OF THEIR ESSENTIAL PURPOSE, OR WHETHERFORESEEABLE OR NOT, ARISING FROM THE PERFORMANCE OR NONPERFORMANCE OF THISAGREEMENT, OR ANY ACTS OR OMISSIONS ASSOCIATED THEREWITH OR RELATED TO UPLYNKSYSTEMS, NETWORKS, COMPONENTS OR PROCESSES, ANY UPLYNK SERVICES, EQUIPMENT,SOFTWARE OR DOCUMENTATION. UPLYNK SHALL HAVE NO LIABILITY FOR BANDWIDTHTHEFT (E.G., LEECHING OR HOTLINKING/DIRECT LINKING TO CUSTOMER CONTENT), ORMALICIOUS ACTS BY THIRD PARTIES.
UPLYNK’S AGGREGATELIABILITY FOR ANY AND ALL CAUSES OF ACTIONS, CLAIMS AND DAMAGES IN CONNECTIONWITH THIS AGREEMENT IS LIMITED TO THE LESSER OF (1) DIRECT DAMAGES PROVEN BYCUSTOMER OR (2) THE AMOUNT OF FEES OR CHARGES PAID BY CUSTOMER TO UPLYNK FORTHE SERVICES GIVING RISE TO THE CLAIM UNDER THE APPLICABLE SO OR SOW DURING THE12-MONTH PERIOD BEFORE THE DATE ON WHICH ANY CLAIM AROSE. THE IMMEDIATELY PRECEDING SENTENCE DOES NOT APPLYTO UPLYNK’S CONFIDENTIALITY OR INDEMNITY OBLIGATIONS.
10. INDEMNIFICATION.
10.1. Customer Indemnification.
a. Uplynk Claim. Customer shall, at its cost, defend, indemnify and holdharmless Uplynk and its officers, directors, employees, agents and permittedsuccessors and assigns (each a "UplynkIndemnitee") through final judgment or settlement, from and againstany third-party claim, action, suit, proceeding, judgments, settlements,losses, damages, expenses (including reasonable legal fees and expenses) andcosts (including allocable costs of in-house counsel) (an "Uplynk Claim") brought against an UplynkIndemnitee arising out of or based upon (a) operation or use of Customer’sproducts, websites or services, (b) Customer Content, (c) unauthorized useof or access to the Services or Uplynk equipment, (d) Uplynk’s compliance withCustomer specifications, (e) a combination or modification of the Services or Uplynkequipment by or on behalf of Customer by anyone other than Uplynk or itsauthorized agents, (g) use of other than the then-current, unaltered release ofany Uplynk-provided software used in the Service, or (h) use of the Servicesother than as permitted by this Agreement.
b. Customer Indemnification Process. The UplynkIndemnitee shall (a) promptly provide notice to Customer of any Uplynk Claimfor which indemnity is claimed (provided, that, any delay in providingnotice shall not relieve Customer of its obligations hereunder, except to theextent that Customer is materially prejudiced by such delay), (b) permitCustomer to control the defense of any such Uplynk Claim and (c) providereasonable assistance at Customer's reasonable cost. Subject to the foregoing, in any Uplynk Claimfor which indemnification is sought, Customer may select legal counsel torepresent the Uplynk Indemnitee (such counsel to be reasonably satisfactory tothe Uplynk Indemnitee) and to otherwise control the defense. If Customer elects to control the defense,the Uplynk Indemnitee may fully participate in the defense at its owncost. If Customer, within a reasonabletime after receipt of notice of an Uplynk Claim, fails to defend the UplynkIndemnitee, the Uplynk Indemnitee may defend and compromise or settle the UplynkClaim at Customer's cost. Notwithstanding the foregoing, Customer may not consent to entry of anyjudgment or enter into any settlement that imposes liability or obligations onthe Uplynk Indemnitee or diminishes the Uplynk Indemnitee's rights, withoutobtaining the Uplynk Indemnitee's express prior consent, such consent not to beunreasonably withheld or delayed, other than cessation of infringing activity,confidential treatment of the settlement, and/or payment of money that is fullyindemnified by Customer under this Agreement.
10.2. UplynkIndemnification.
a. Customer Claim. Uplynk shall, at its cost, defend Customer (the “Customer Indemnitee”), through finaljudgment or settlement, against any and all third party claims, actions or suitsthreatened or instituted against Customer alleging that a Service directlyinfringes an issued patent or other Intellectual Property Right under the lawsof a country in which such Service is actually provided to Customer (a “Customer Claim”). Uplynk shall indemnify and hold Customerharmless for damages, costs, and expenses, including reasonable attorney’s feesfinally awarded against Customer for such Customer Claim or amounts agreed uponby Uplynk in settlement of such Customer Claim. Notwithstanding the foregoing, Uplynkwill have no obligations hereunder to the extent a Customer Claim arises out ofor relates to one or more conditions stated in subsections (a) through (h) of10.1(a).
b. License, Modification, Replacement and Termination ofInfringing Service. If any Service(s) becomes the subject of a Customer Claim under this section, or in Uplynk’s opinion is likely to become the subject of such a Customer Claim, then Uplynk may, at its sole option, either (i) replace or modify the alleged infringing Service(s) to make it/them non-infringing,while maintaining reasonably equivalent functionality; (ii) procure forCustomer the right to continue using the alleged infringing Service(s) pursuant to this Agreement; or (iii) at Uplynk’s sole option, terminate this Agreement and any outstanding Order Forms with respect to the allegedly infringing Service on30 days’ written notice with both parties having no further obligations or liability to the other, other than the respective party’s obligations under this section and Customer’s obligation to pay all charges and fees for theaffected Service(s) incurred up to termination.
c. Uplynk Indemnification Process. The Customer Indemnitee shall: (a) promptly provide notice to Uplynk of any Customer Claim for which indemnity is claimed (provided, that, any delay in providing notice shall not relieve Uplynk of its obligations hereunder,except to the extent that Uplynk is materially prejudiced by such delay); (b)permit Uplynk to control the defense of any such Customer Claim; and (c)provide reasonable assistance at Uplynk’s reasonable cost. Subject to the foregoing, in any CustomerClaim for which indemnification is sought, Uplynk may select legal counsel to represent the Customer Indemnitee (such counsel to be reasonably satisfactory to the Customer Indemnitee) and to otherwise control the defense. If Uplynk elects to control the defense, theCustomer Indemnitee may fully participate in the defense at its own cost. If Uplynk, within a reasonable time afterreceipt of notice of Customer Claim, fails to defend the Customer Indemnitee,the Customer Indemnitee may defend and compromise or settle the Customer Claim at Uplynk's cost. Notwithstanding the foregoing, Uplynk may not consent to entry of any judgment or enter into anysettlement that imposes liability or obligations on the Customer Indemnitee or diminishes the Customer Indemnitee's rights, without obtaining the CustomerIndemnitee's express prior consent, such consent not to be unreasonablywithheld or delayed, other than cessation of infringing activity, confidentialtreatment of the settlement, and/or payment of money that is fully indemnifiedby Uplynk under this Agreement.
10.3. Exclusive Remedy. Section 10.2 provides the sole and exclusive remedy of Customer and the exclusive obligations of Uplynk in connection with a Customer Claim.
11. TERM AND TERMINATION.
11.1. Term. The termof this Agreement (Term) is coextensive with any SO then in effect unlessearlier terminated as set forth herein. The Term of any applicable SO is setforth in the SO.
11.2. Termination forCause.
a. By Customer. Customer may terminate this Agreement for cause, uponnotice to Uplynk if: (i) a receiver or administrator is appointed for Uplynk orits property; (ii) Uplynk makes a general assignment for the benefit of itscreditors; (iii) Uplynk commences, or has commenced against it, proceedingsunder any bankruptcy, insolvency or debtor’s relief law which are not dismissedwithin 60 days; (iv) Uplynk is liquidated or dissolved; (v) Uplynk ceases to dobusiness or otherwise terminates its business operations or (vi) Uplynkmaterially breaches this Agreement and such breach continues unremedied for 10 businessdays after receipt of notice from Customer. If Customer fails to terminate this Agreement within a reasonable timefollowing such 10-day period, then it willbe deemed to have waived its termination right with respect to such uncuredbreach. For clarity and subject to Section 13.5(Force Majeure), a Services Outage as defined in the applicable SLA is notgrounds to terminate this Agreement for cause. Customer's sole remedy for a Services Outage is set forth in theapplicable SLA.
b. By Uplynk. Uplynk may terminate this Agreement for cause and/or suspend Services upon notice to Customer if (i) a receiver or administrator is appointed for Customer or its property; (ii) Customer makes a general assignment for the benefit of its creditors; (iii) Customer commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law which are not dismissed within 60 days; (iv) Customer is liquidated or dissolved; (v) Customer ceases to do business or otherwise terminates its business operations; (vi) Customer fails to pay all undisputed invoiced fees or charges within 30 days from the invoice date, in accordance with this Agreement; (vii) Customer breaches this Agreement and such breach continues unremedied for 10 business days after receipt of notice from Uplynk. Uplynk may terminate, interrupt or suspend Service without prior notice if necessary: (1) to prevent or protect against fraud; (2) to protect Uplynk’s customers, personnel, facilities, equipment,network or services; (3) to prevent violation of Section 7 (Representations and Warranties) or infringement upon the rights of others; or (4) due to Customer’s violation of the AUP, as determined in Uplynk’s sole discretion.
11.3. Termination by Uplynk for Change of Control. If Customer undergoes a Change of Control, Uplynk may terminate the Agreement upon 30 days’ notice to Customer's successor/transferee; provided, that, Uplynk has determined in its sole discretion that Customer’s successor/transferee is either (a) unable to meet Uplynk’s standards for creditworthiness, (b) is otherwise unable to assume and fulfillCustomer’s obligations herein, (c) otherwise presents an undue financial orc redit risk, and/or (d) is a direct competitor of Uplynk.
11.4. Effect ofTermination.
a. Upon expiration ortermination of an SO, SOW or this Agreement for any reason, (i) all Customerrights to access or use Services Uplynk shall terminate and Uplynk shall ceaseproviding same, (ii) Customer shall pay to Uplynk all fees or charges accruedbut unpaid, (iii) all liabilities accrued before the date of expiration ortermination shall survive and (iv) as directed by Uplynk, Customer shall returnor destroy, and certify in writing to Uplynk such destruction of, all copies ofUplynk Confidential Information.
b. If Customer terminates the SO, SOW or this Agreement early without cause or if Uplynk terminates the SO, SOW or Agreement for cause, Customer shall be invoiced and pay to Uplynk an early termination charge in such amount as set forth in the applicable SO,SOW or Agreement. Such early termination charge is agreed by the Parties to be liquidated damages and is not a penalty.
12. PUBLICITY. During the Term, except as otherwise set forth herein, theParties may not issue press releases or other public communications regardingthe Parties’ relationship created by this Agreement or the Services withoutexpress prior consent. Customer shallnot use Uplynk’s name, logo, trademarks and/or service marks, trade names,trade dress or other proprietary identifying symbols or otherwise identify orrefer to Uplynk, except as specifically permitted under this Agreement orotherwise with Uplynk’s express prior consent. Customer grants Uplynkpermission to use Customer’s logo and/or name on the Uplynk website, in Uplynksales presentations, for marketing purposes and promotional materials, and toidentify Customer as a customer of the Services in response to requests forinformation and responses to proposals. All other uses of Customer’s name, logo, trademarks and/or servicemarks, trade names, trade dress or other proprietary identifying symbols shallbe subject to Customer’s consent, which shall not be unreasonably withheld.
13. MISCELLANEOUS.
13.1. Customer Sales. No sale of Servicesby Customer is permitted unless expressly set forth in this Agreement.
13.2. Non-Solicitation. Duringand for one year after the Term, Customer shall not, and shall ensure that itsAffiliates do not, directly or indirectly solicit for employment any personemployed by Uplynk to provide Services. Notwithstanding the foregoing, employment that is initiated by indirectsolicitation (such as general newspaper advertisements or general online jobpostings not targeted at Uplynk's employees) shall not be considered arecruitment or solicitation hereunder.
13.3. No Third-PartyBeneficiaries. Except as otherwise set forth in a ServiceSupplement, there are no third-party beneficiaries to this Agreement, includingany insurance providers or Customers.
13.4. Beta Trial or Free Products and Services. From time to time, Uplynk may offer the opportunity to test and evaluate certain products, services and functionality that Uplynk has not yet made commercially available (Beta Services), or has made available on a proof of concept, free or trial basis (“Trial Services”). Access to the Beta or Trial Services is permitted solely for internal evaluation during the period designated by Uplynk(or if not designated, 30 days) and the Services may be used only in accordance with any limitations or restrictions set forth in Uplynk documentation. Uplynk retains all Intellectual Rights in the Beta, Free or Trial Services, and either party may terminate or suspend the use of any or all of these Services at anytime for any reason with or without notice. The Beta, Free or Trial Services maybe incomplete, modified or rendered inoperable at any time, may contain errors,bugs, or other problems which Uplynk is under no obligation to correct or mitigate, and the Beta Services may never be released and made available as a commercial product, service or feature. These Services constitute Confidential Information under this Agreement. Notwithstanding anything else in this Agreement, the Beta, Free or Trial Services are provided “as is with all faults” with no warranty, indemnity, SLA or support, they may not be fully secure, their use is at the user’s sole risk and expense, and Uplynk Liability to any user or third party arising out of or related to the BetaServices will not exceed $500.00. Notices, if any, relating to the Beta, Free or Trial Services will be sent to the email address provided by a user in setting up an account (or for Customers in accordance with the notice provisions below).
13.5. Third PartyComponents. TheServices, including Uplynk’s Free, Trial or Beta Services, may allow connection or linking to or the download of certain software, files, or components that aresubject to open source and/or third party licensing terms (“Third PartyComponents”). Customer acknowledges and agrees that the download, connection orlink to such Third Party Components and the use of the same is subject to theaccompanying license terms, is at Customer’s sole risk and expense, and is provided “as is.” Uplynk disclaims all obligations,liabilities and warranties of any kind, whether express or implied with respectto such Third Party Components.
13.6. ServiceImprovements. Customer acknowledges that Uplynk is constantly enhancing its Services and has the rightto independently make, use, develop, acquire, license, market, promote, or distribute products, software, or technologies that perform the same or similarfunctions as, or otherwise compete with products, software, or technologiesthat Customer may develop, produce, market, or distribute now or in the future,provided the same is not in violation of the terms of this Agreement.
13.7. Feedback. Feedback concerning Customer’s experience with the Services and Beta Services is essential to their improvement, and Uplynk welcomes Customer’s feedback. Customer agrees that Uplynk may contact Customer by telephone, electronic mail, or other means, to solicit Customer’s feedback,and Customer agrees that Uplynk owns and may use in any manner and without limitation, attribution or compensation in any form, all comments, suggestions,complaints and other feedback Customer provides relating to the Services andBeta Services.
13.8. Notices. All notices, requests, approvals,consents and other communications required or permitted herein shall be inwriting, in English and shall be deemed conclusively made (a) if personallydelivered, upon delivery, (b) if delivered by overnight courier or private mailservice, upon receipt, (c) if delivered by certified mail return receiptrequested, five days from deposit in the mail or (d) if delivered by e-mail,upon confirmation of delivery. If to Uplynk: Uplynk, Inc., 901 N Market St. Suite 100, Wilmington, DE 19801,Attention: Uplynk Legal Department; e-mail: Legalteam@uplynk.com If to Customer: at the contact information specified in an SO. EitherParty may change its contact information upon notice to the other Party. Forclarity, if a notice is not received because the receiving Party has failed tonotify the other Party per the preceding sentence or because receipt isrefused, such notice nonetheless shall be deemed to have been conclusively madeseven days after delivery was reasonably initiated.
13.9. ForceMajeure. Neither Party shall be liable by reason of any failure ordelay in the performance of its obligations herein due to acts of God, civildisorders, acts of terrorism, rebellion, fires, explosions, accidents, floods,vandalism, sabotage, unavailability of equipment, software or parts fromvendors, work stoppages or other labor activity, labor conditions, shortages,fire, flood, storm, earthquake or other natural disaster, explosion, embargoes,strikes, labor disputes, riots, insurrection, war or unrest, militaryaction, export sanctions, governmental restrictions or action, terrorism orthreat of terrorism, computer viruses or worms, computer sabotage, or maliciousonline attacks (provided, that the Party claiming such cause has takencommercially reasonable steps to prevent such attacks) or other cause beyondsuch Party’s reasonable control (each, a "Force Majeure Event"). Uplynkmay limit use of Services due to a Force Majeure Event. A Party whose performance is affected by aForce Majeure Event shall promptly provide notice with relevant details to theother Party and the obligations of the Party giving such notice shall besuspended to the extent caused by such Force Majeure Event for as long as theForce Majeure Event continues; and the time for performance of the affectedobligation shall be extended by the delay caused by the Force MajeureEvent. If the affected Party isprevented by the Force Majeure Event from performing its obligations withregard to a Service for 30 days, then it may in its sole discretion immediatelyterminate the affected Service by giving notice of termination to the otherParty. Upon such termination, Uplynk isentitled to payment of all accrued but unpaid fees or charges incurred throughthe date of such termination. TheParties shall otherwise bear their own costs and Uplynk shall be under nofurther liability to perform the Services affected by the Force Majeure Event.
13.10. Choice of Law,Forum. This Agreement shall be construed and enforced inaccordance with the laws of the State of Delaware, without regard to conflictof laws principles. Each Party agreesthat any action, suit or other proceeding arising from or based upon thisAgreement (each, a "Dispute") will be brought and maintained only in a Federal or State court of competentjurisdiction located in Delaware. EachParty consents to the mandatory jurisdiction and venue of such courts andwaives any right to object to jurisdiction and venue. The prevailing Party in any Dispute shall beentitled to recovery of its reasonable attorneys' fees and costs. The Parties agree that the United NationsConvention on Contracts for the International Sale of Goods shall not apply tothis Agreement.
13.11. Relationship ofParties. The Parties are independent contractors and agree that thisAgreement does not establish a partnership, association, joint venture oragency relationship or other co-operative entity between the Parties.
13.12. Waiver,Amendments. No failure or delay by either Party to exercise or enforceany right herein shall operate as a waiver of any such right. This Agreement may be amended only by awriting signed by an authorized representative of Uplynk and an authorizedrepresentative of Customer.
13.13. Severability. If anyprovision of this Agreement is held by a court of competent jurisdiction to beunenforceable or contrary to law, such holding shall not render the Agreementunenforceable or contrary to law as a whole, and, in such event, such provisionshall be changed and interpreted so as to best accomplish the objectives ofsuch provisions within the limits of applicable law.
13.14. Assignment. NeitherParty may assign this Agreement without the other Party’s express prior consentexcept that Uplynk may freely assign its rights and obligations under thisAgreement, in whole or in part, (a) to a parent or Affiliate or (b) inconnection with a Change of Control. This Agreement shall be binding upon and inure to the benefit of all permitted successors and assigns. Any assignment in contravention of this Section 13.10 is null and void.
13.15. Trade Compliance. Customer will comply with all applicable export, import, and economic sanctions laws and regulations(hereinafter referred to as "Trade Compliance Laws"), including, but not limited to, the Export Administration Regulations of the U.S.Department of Commerce, Bureau of Industry and Security and the embargoes and tradesanction programs administered by the U.S. Department of the Treasury, Office of Foreign Assets Control. Unless authorized by a license or applicable regulatory authorization, Customer represents and warrants that it will not directly or indirectly use theServices to export, import, or re-export items, software, technology, data, or information covered under this Agreement to any country, person, or entity that is prohibited or restricted under Trade Compliance Laws. Customer represents and warrants that neitherCustomer nor its End Users are identified on any government export exclusion lists, including but not limited to the U.S. Denied Persons, Entity, andSpecially Designated Nationals Lists.
13.16. Anti-Corruption Compliance. Customer will complywith the Foreign Corrupt Practices Act, UK Anti-Bribery Act, and otherapplicable anti-bribery laws ("Anti-Bribery Laws"). Customer will not directly or indirectly offer, pay, give, promise, or authorize any money, gift,or anything of value in violation of Anti-bribery Laws and that in any way relate to or affect this Agreement. Customer acknowledges that Anti-bribery Laws prohibit transfer of money or anything of value to any government official or employee, political party, party official,candidate for political office, or private individual for the purpose of: obtaining, retaining, or directing business; influencing any official act or decision; or securing any improper advantage. Customer represents and warrants that in the performance of its obligations under this Agreement, it has not nor will it act in violation of Anti-Bribery Laws. Customer must keep accurate books and records in relation to this Agreement and make those records available to Uplynk upon request and with reasonable notice.
13.17. Survival. TheParties’ rights and obligations set forth in Sections 3.2(c) (InvoiceDisputes), 4 (Grant of Rights, Intellectual Property), 6 (Confidentiality), 8(Disclaimer), 9 (Limitation of Liability), 10 (Indemnification) and 13 (Miscellaneous)shall survive termination or expiration of this Agreement.
13.18. Entire Agreement. ThisAgreement, the AUP(s), the Service Supplements (including any SLAs), the Exhibit(s), and all SOs, SOWs or addenda between the Parties are incorporatedherein by reference, constitute the entire agreement between the Parties withrespect to its subject matter and supersede all other prior or contemporaneousrepresentations, understandings or agreements; and there are no otherrepresentations, understandings or agreements between the Parties relative tosuch subject matter. No amendment tothis Agreement is valid unless in writing and signed by both Parties.
13.19. Remedies. Unless otherwise provided for in this Agreement, to the extent permitted by applicable law, the Parties’ rights and remedies provided herein are cumulative and in addition to any other rights and remedies at law or equity.
13.20. Construction. Descriptive headings in this Agreement are for convenience only and shall not affect the construction of this Agreement. The terms “include,” “including” or “e.g.” mean “include, without limitation”. The term “day” means calendar day unless otherwise indicated. Terms with well-known technical or industry meanings are so construed. Each Party and its counsel have fully reviewed and contributed to this Agreement. Any rule of construction that ambiguities are resolved against the drafting Party shall not apply in interpreting thisAgreement.
Each of the parties has causedthis Agreement to be signed and delivered by its respective authorizedrepresentative and are entered into as of the last date signed below:
Revised October 6, 2025
