These Software Terms of Use (“Agreement”) by and between the signor of the Platform Agreement (“Client”) and 1UP-DIGITAL (“1UP-DIGITAL”), a California LLC, for the provision of services in accordance with the following terms and conditions. Client and 1UP-DIGITAL may be referred to in this Agreement individually as a “Party” and together as the “Parties.”
1. Services. 1UP-DIGITAL will provide all services as explicitly outlined in the Platform Agreement (the “Services”).
1.1 Requirements for Services. In order for 1UP-DIGITAL to provide the Services, an internet connect and a stable power supply is required at all times for the Platform to work properly.
2. Fees and Expenses.
2.1 Fees for Services. All Fees for the Services are outlined in the Platform Agreement. Once the Platform Agreement is finalized, all monthly payments will be automatically charged to your credit card on file. In the event your credit card information is no longer accurate, your access to the myOffer & myTraffic platform shall be suspended until or unless you provide 1UP-DIGITAL with accurate, updated payment information.
3. Publicity; Confidential Information.
3.1 Intellectual Property. Client shall acquire no right to use, and shall not use, without 1UP-DIGITAL’s prior written consent, the terms or existence of this Agreement, the names, trade names, trademarks, service marks, artwork, designs, or copyrighted materials, of 1UP-DIGITAL: (a) in any advertising, publicity, press release, client list, presentation or promotion or (b) in any manner other than expressly in accordance with this Agreement. No ownership or assignment of any 1UP-DIGITAL intellectual property is transferred to Client through this Agreement.
3.2 Confidential Information. During the course of this Agreement, each Party may disclose to the other certain non-public information or materials relating to a Party’s products, intellectual property, business, marketing programs and efforts, and other confidential information and trade secrets (“Confidential Information”). Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes publicly available through no breach by the receiving Party of this Agreement; (b) was previously known to the receiving Party prior to the date of disclosure, as evidenced by contemporaneous written records; (c) was acquired from a third Party without any breach of any obligation of confidentiality; (d) was independently developed by a Party hereto without reference to Confidential Information of the other Party; or (e) is required to be disclosed pursuant to a subpoena or other similar order of any court or government agency, provided, however, that the Party receiving such subpoena or order shall promptly inform the other Party in writing and provide a copy thereof, and shall only disclose that Confidential Information necessary to comply with such subpoena or order.
3.3 Protection of Confidential Information. Except as expressly provided herein, the receiving Party will not use or disclose any Confidential Information of the disclosing Party without the disclosing Party’s prior written consent, except disclosure to and subsequent uses by the receiving Party’s employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as the receiving Party’s obligations under this Section 3. Subject to the foregoing nondisclosure and non-use obligations, the receiving Party agrees to use at least the same care and precaution in protecting such Confidential Information as the receiving Party uses to protect the receiving Party’s own Confidential Information and trade secrets, and in no event less than reasonable care. Each Party acknowledges that due to the unique nature of the other Party’s Confidential Information, the disclosing Party will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing Party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure. Neither Party shall remove or alter any proprietary markings (e.g., copyright and trademark notices) on the other Party’s Confidential Information.
4. Warranties, Remedies, and Indemnification.
4.1 Warranties. Client represents and warrants that: (i) Client has the full power and authority to enter into and perform this Agreement and to make the grant of rights provided herein; (ii) the Services will be solely used for Client and/or Client’s business; (iii) Client will not distribute, license, loan, or sell any element of the Services or other content that is contained or displayed within them; (iv) Client will not modify, alter, or create any derivative works from the Services; and (v) Client will not reverse engineer, decompile, decode, decrypt, disassemble, or derive any source code from the Services.
4.2 Indemnification. Client shall defend, indemnify, and hold harmless 1UP-DIGITAL and its directors, officers, agents, employees, members, licensees, subsidiaries and successors in interest from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, including, without limitation, attorneys’ fees, experts’ fees and court costs as provided herein arising out of or relating to Client’s breach of this Agreement, negligence and/or willful misconduct.
4.3 Limitation of Liability and Disclaimers. EXCEPT FOR THE OBLIGATIONS TO INDEMNIFY, DEFEND, OR HOLD HARMLESS UNDER THIS AGREEMENT, A BREACH OF SECTION 3 (PUBLICITY; CONFIDENTIAL INFORMATION), EITHER PARTY’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (A) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY FOR ALL DAMAGES OF EVERY KIND AND TYPE SHALL NOT EXCEED THE TOTAL FEES PAID HEREUNDER BY CLIENT DURING THE 3 MONTH PERIOD PRECEDING THE DATE UPON WHICH A CLAIM AROSE.
Client expressly agrees that use of the Services is at Client’s sole risk. The Services are provided on an “as is” and “as available” basis. 1UP-DIGITAL expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to any warranties of merchantability, fitness for a particular use or purpose, non-infringement, title, operability, condition, quiet enjoyment, value, accuracy of data and system integration.
Client understands that 1UP-DIGITAL cannot and does not guarantee or warrant that any aspect of the Services will be free of viruses or other destructive code. Client is responsible for implementing sufficient procedures and checkpoints to satisfy Clients particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Module for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT CLIENT’S COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO CLIENT’S USE OF THE SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES.
5. General Provisions.
5.1 Assignment. Neither Party may assign or delegate its duties or responsibilities under this Agreement without the prior written consent of the other Party.
5.2 Governing Law; Venue. Client agrees that any and all disputes, claims or litigation arising from or related in any way to this Agreement shall be resolved exclusively by the courts in the State of California. Client waives any objections against and agrees to submit to the personal jurisdiction of the Municipal and/or Superior Courts of the State of California, County of Orange. Client waives any objections or defenses it may have based upon an inconvenient forum. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to California conflict of law provisions.
5.3 Waiver/Severability. Any waiver, in whole or in part of any provision of this Agreement will not affect be considered to be a waiver of any other provision. If any term of this Agreement is found to be unenforceable or invalid for any reason, all other terms will remain in full force and effect.
5.4 Survival. All accrued payment obligations hereunder, any remedies for breach of this Agreement, and the following Sections will survive any expiration or termination of this Agreement: Section 3 (Publicity; Confidential Information); Section 4.2 (Indemnification); Section 4.3 (Limitation of Liability) and Section 5 (General Provisions), and termination shall not affect a Party's right to claim a breach of representation and warranties of this Agreement.
5.5 Entire Agreement. This Agreement and the Platform Agreement, as to its subject matter, exclusively and completely states the rights, duties and obligations of the Parties and supersedes all prior and contemporaneous representations, letters, proposals, discussions and understandings by or between the Parties. This Agreement may only be amended in writing and signed by both Parties. The Parties, by their representatives signing below, agree with the terms of this Agreement.
5.6 Force Majeure. If either Party cannot perform any of its obligations because of any act of God, pandemic, epidemic, accident, strike, court order, fire, riot, war, or any other cause not within the Party’s control (a “Force Majeure Event”), then the non-performing Party will: (i) immediately notify the other Party; (ii) take reasonable steps to resume performance as soon as possible; and (iii) not be considered in breach during the duration of the Force Majeure Event. In the event a Force Majeure Event continues for a period of two (2) weeks, 1UP-DIGITAL may terminate this Agreement by providing written notice to Client. All outstanding payments will still be due in the event this Agreement is terminated due to a Force Majeure Event.
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