PLEASE READ THIS DOCUMENT CAREFULLY BEFORE CONTINUING AND CLICK “I ACCEPT” IN THE GOOGLE WORKSPACE MARKETPLACE TO CONTINUE TO USE THE SERVICE. IF YOU DO NOT AGREE TO ACCEPT THE TERMS OF THIS AGREEMENT AND DO NOT WISH TO DOWNLOAD OR USE THE SERVICE, CLICK “CANCEL”AND DO NOT PROCEED WITH USE OF THE SERVICE.
IMPORTANT: BY CHECKING THE “I ACCEPT” BOX ON THE ONLINE ORDER FORM AND/OR ACCESSING ANY PART OF THE UPTEAM TOOLBOX SERVICE (THE “SERVICE”) YOU ARE REPRESENTING THAT (A) IF YOU ARE AN INDIVIDUAL, YOU ARE EITHER OVER THE AGE OF 18 OR HAVE OBTAINED YOUR PARENT’S CONSENT TO REGISTER FOR THE SERVICE, OR (B) IF YOU ARE THE REPRESENTATIVE OF A COMPANY, YOU HAVE THE REQUISITE CORPORATE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE COMPANY AND NO OTHER CONSENT, APPROVAL, OR AUTHORITY IS NECESSARY OR REQUIRED TO BIND THE COMPANY TO ALL OF THE TERMS AND CONDITIONS HEREOF. YOU ARE AGREEING TO ALL THE TERMS AND CONDITIONS OF THIS SERVICE AGREEMENT (THE “SERVICE AGREEMENT” OR “THIS AGREEMENT”), AND CONSENT, EITHER ON YOUR OWN BEHALF OR ON BEHALF OF THE COMPANY THAT YOU REPRESENT, TO BE BOUND BY AND BECOME A PARTY TO THIS SERVICE AGREEMENT.
IF YOU ARE DEEMED TO HAVE ORDERED THE SERVICE, THE ACCEPTANCE OF UPTEAM IS EXPRESSLY CONDITIONED UPON ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS SERVICE AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER BY UPTEAM, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
Terms of Service
This UpTeam Toolbox Service Agreement (the Agreement) is entered into by and between UpTeam, LLC, A California Corporation, with offices at 355 West Olive Ave, Suite 202, Sunnyvale, CA 94086 (UpTeam) and the person or entity agreeing to these terms (Customer, “You”).
1. Effective Date.
This Agreement is effective as of the earlier of (1) the date You click the “I ACCEPT” button in any ordering form or online or downloaded instance of the Service, or (2) the date on which this Agreement becomes incorporated by reference into any other contract or services agreement (the Effective Date).
2. Legal Authority of Customer.
If You are accepting on behalf of Your employer or another entity, You represent and warrant that: (i) You have full legal authority to bind Your employer, or the applicable entity, to these terms and conditions; (ii) You have read and understand this Agreement; and (iii) You agree, on behalf of the party that You represent, to this Agreement. If You do not have the legal authority to bind Your employer or the applicable entity, please do not click the I Accept button below. This Agreement governs Customer’s access to and use of the Service.
3. Consent for Internet-Based Services.
The Service is accessed over the internet and may connect to and use Upteam’s, Google’s or other service providers’ computer systems over the Internet, including those described in the following paragraphs, in order to perform various functions of the Service and to make the Services available to you. In some cases You will not receive a notice when accessing other systems. Upteam may change or cancel the use of other systems used by the Service at any time.
Computer Information: The Service uses Internet protocols, which send to the appropriate systems computer information, such as Your Internet protocol address, the type of operating system, browser and name and version of the software You are using, and the language code of the device where You installed the software. Upteam uses this information to make the Services available to You and to improve our software and services.
Web Content Features:Features in the software can retrieve related content from Upteam, Google and other service providers and provide it to You. Examples of these features are images, documentation, online training, and online assistance.
Google App Engine: The Service uses the Google App Engine platform both to operate and to integrate with the Customer Google Apps environment
Google Apps APIs: The Service makes use of the Google Apps APIs to interact with Customer Data hosted by Google as part of Customer’s Google Apps service.
Customer Datastore: Certain Customer Data is logged and reported in the Google App Engine Datastore. This information includes but is not limited to: transactions performed by Customer when using the Service, names and email addresses of Customer Google Apps accounts, and data describing Customer’s Google Apps data such as filenames, file sizes and file sharing settings.
Datastore Location: Upteam stores Customer Data in Google Cloud data centers using the Google App Engine service, and has designated, via the App Engine Data Location Setting of the Google App Engine Service, to exclusively store that Customer Data in the United States. Google App Engine is governed by the Google App Engine Terms of Service as stated at https://cloud.google.com/terms/service-terms or such successor URL as may be provided by Google. Per these Google App Engine Terms of Service, Customer Data may be stored transiently or cached in any country in which Google or its agents maintain facilities.
Usage Reporting. Statistical reports regarding transactions performed by Customer in its use of the Service may be collected by the Service and Upteam. These reports may include identifying customer information.
Web Services. The Service may make use of Web Services hosted and running on Upteam or other parties’ servers where necessary to perform functions of the Service.
Digital Certificates. The software may use digital certificates. These digital certificates confirm the identity of Internet user’s standard encrypted information. The software retrieves certificates and updates certificate revocation lists.
Use of Information : Upteam may use the Computer Information to improve our software and services
If You give feedback about the software to Upteam, You give to Upteam, without charge, the right to use, share and commercialize Your feedback in any way and for any purpose. You also give to third parties, without charge, any patent rights needed for their products, technologies and services to use or interface with any specific parts of a Upteam software or service that includes the feedback. You will not give feedback that is subject to a license that requires Upteam to license its software or documentation to third parties because we include Your feedback in them. These rights survive this agreement.
5. Scope of License.
The software is licensed, not sold. This agreement only gives You some rights to use the software. Upteam reserves all other rights. Unless applicable law gives You more rights despite this limitation, You may use the software only as expressly permitted in this agreement. In doing so, You must comply with any technical limitations in the software that only allow You to use it in certain ways. You may not, without Upteam’s prior written approval:
a. disclose the results of any benchmark tests of the Software or Service to any third party;
b. work around any technical limitations in the software;
c. reverse engineer, decompile or disassemble, translate, alter, disassemble or create derivative works of the Software or attempt to do any of the foregoing, except and only to the extent that applicable law expressly permits, despite this limitation;
d. make more copies of the software than specified in this Agreement or allowed by applicable law, despite this limitation;
e. use or export the Software in any manner or for any purpose that violates this Agreement, or violates any law or regulation, any third party or Upteam right, including but not limited to intellectual property rights, privacy rights, personal property rights or export laws
f. publish the software for others to copy;
g. sell, rent, lease, distribute, assign, license or transfer the Software to a third party or copy all or any portion of the Software or any computer code made available as part of the Software or Service;
h. transfer the software or this agreement to any third party;
i. interfere with or disrupt the Software or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Software); or
j. use the software for commercial software hosting services.
k. remove any proprietary notices or labels on the Software or placed by the Service
6. Nonexclusive License.
Upteam hereby grants You a limited, revocable, non-exclusive, non-sub licensable license to use the Service solely as necessary to use the Service for one or more domains that You own and control. Your license of, use of and access to the Software and the Service (which may include, without limitation, the Software, documentation and reports) is conditioned upon Your compliance with the terms and conditions of the Agreement, including the following:
a. You will use the Software and Service solely for Your own internal use, and will not make the Software and Service available for timesharing, application service provider or service bureau use. You will comply with all applicable laws and regulations in Your use of and access to the Software and Service.
b. This license will terminate immediately if You fail to comply with the terms of this Agreement. Upon such termination, You must destroy all originals and copies of the Software in Your possession and so certify in writing to Upteam within three (3) business days of termination and cease any further use of the Service without the express written consent of Upteam.
7. Export Restrictions.
The software is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the software. These laws include restrictions on destinations, end users and end use.
By downloading the Software, Customer agrees that Customer is solely responsible for complying with all United States export control regulations, including the Export Administration Regulations (“EAR”), and sanctions programs, including those administered by the United States Treasury Department’s Office of Foreign Assets Controls (“OFAC”), and all other applicable international trade regulations. Customer agrees that Customer will not download or use the Software without all required approvals in any proscribed destination (including Cuba, Iran, North Korea, Sudan, and Syria), on behalf of any proscribed entity or person, for any proscribed end use, or in any other manner contrary to these export regulations and sanctions programs. By downloading or using the Software, Customer represents and warrants to Upteam that Customer is not a proscribed end-user or utilizing this Software for a proscribed end use under these regulations.
You may not remove or export from the United States or allow the export or re-export of any part of the Software or applicable documentation, if any, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and Documentation licensed in this Agreement are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
8. Government End Users.
If the Software and/or any related documentation are supplied to or installed by or on behalf of the United States Government, then the Software is deemed to be “commercial software” as defined in the Federal Acquisition Regulation system. Rights of the United States shall not exceed the minimum rights set forth in FAR 52.227-19 for “restricted computer software”. All other terms and conditions of this EULA shall apply.
a. Generally Upteam will provide the Service to Customer during the Term of this Agreement. Customer may access and administer the Service through their Google Apps administrator account and password. Certain functionality in the Service may be made available to Customer for additional fees or under different terms, as noted in on the Order Page.
b. Facilities. The Service is hosted on the Google App Engine, and available for purchase through the Google Workspace Marketplace. Google has implemented at least industry standard systems and procedures to ensure the security and confidentiality of Customer Data, protect against anticipated threats or hazards to the security or integrity of Customer Data, and protect against unauthorized access to or use of Customer Data. All facilities used to store and process Customer Data will adhere to reasonable security standards no less protective than the security standards at facilities where Google stores and processes its own information of a similar type.
i.To the Service. Upteam may make commercially reasonable modifications to the Service, or particular components of the Service, from time to time. Upteam will use commercially reasonable efforts to notify Customer of any such changes.
ii. To Terms of Service. If Upteam makes a material change to the URL Terms, then Upteam will notify Customer by either sending an email to the Notification Email Address or alerting Customer via a login notice message presented during application login. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify Upteam via the Feedback Support Link within (30) thirty days after receiving notice of the change. If Customer notifies Upteam as required, then Customer will remain governed by the terms in effect immediately prior to the change until the end of the then-current term for the affected Service. If the affected Service is renewed, Customers will be renewed under Upteam’s then current URL Terms.
e. Data Transfer. As part of providing the Service, Upteam may store and process Customer Data in the United States or any other country in which Upteam or its agents maintain facilities. By using the Service, Customer consents to this transfer, processing and storage of Customer Data.
g. Service Levels. Upteam does not guarantee the Service will be operable at all times or during any down time (1) caused by outages to any public Internet backbones, networks or servers, (2) caused by any failures of Your equipment, systems or local access services, (3) for previously scheduled maintenance or (4) relating to events beyond Upteam’s (or its wholly owned subsidiaries’) control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Upteam, Google (or its wholly owned subsidiaries) or Your servers are located or co-located. Complete accuracy in all aspects of Your Google Apps Domain data and Logging Data at all times also is not guaranteed.
10. Customer Obligations.
b. Customer Administration of the Service. Customer may delegate Admin Access to one or more Administrator through the Admin Console. Administrators will have the right to access Admin capabilities in the Customer’s Google Apps domain and to administer the User Accounts. Customer is responsible for: (a) maintaining the confidentiality of the Account passwords; (b) delegating those of its employees who are authorized to access the Admin features; and (c) ensuring that all activities that occur in connection with the Admin and User Accounts comply with the Agreement. Customer agrees that Upteam’s responsibilities do not extend to the internal management or administration of Customer’s Google Apps Domain and that Upteam is merely a data-processor.
c. Privacy. Customer agrees to protect the privacy rights of its Users under all applicable laws and regulations. Customer’s Administrators and Delegates may have the ability to access, monitor, use, or disclose data available to Users within the User Accounts. Customer will obtain and maintain consent from all Users to Customer’s access, monitoring, use or disclosure of this data, and to Upteam providing Customer with the ability to do so. Customer is responsible for obtaining any necessary authorizations from Users to enable Upteam to provide the Service.
d. Unauthorized Use. Customer will use all commercially reasonable efforts to prevent unauthorized use of the Service, and to terminate any unauthorized use. Customer will promptly notify Upteam of any unauthorized use of, or access to, the Service of which it becomes aware.
e. Member Account, Password, and Security. To register for the Service, You must complete the registration process by providing Upteam with current, complete and accurate information as prompted by the registration form, including Your Google Apps Admin e-mail address (username) and approval to access Your Google Apps domain via Google’s APIs. You shall protect Your passwords and take full responsibility for Your own, and third party, use of Your accounts. You are solely responsible for any and all activities that occur under Your Account. You agree to notify Upteam immediately upon learning of any unauthorized use of Your Account or any other breach of security. From time to time, Upteam’s (or its wholly-owned subsidiaries’) support staff may log in to the Service in order to maintain or improve service, including to provide You assistance with technical or billing issues. You hereby acknowledge and consent to such access.
11. Requesting Account; Service Term
a. Initial Term; Prorated Terms. The initial term for Service purchased prior to the Service Commencement Date will be defined in the ordering document. Upteam may revise its rates with at least thirty days prior written notice to Customer, including by email, effective for the following term.
b. Automatic Renewal. The default setting for the Service is auto renewal at the end of a subscription term. If the automatic renewal setting is enabled, after the initial term each Account will automatically renew on each anniversary of the Service Commencement Date for an additional term corresponding to the initial purchase term. Customer will pay Upteam the then-current Fees for each renewed Account unless Customer and Upteam mutually agreed otherwise.
c. Disabling Automatic Renewal. Customer may disable the automatic renewal option by notifying its designated Upteam Account Manager or via the Admin Console, when this feature is available in the Service. If Customer disables this automatic renewal setting, Customer’s Account will terminate upon the conclusion of the then current term.
d. Account. Customer may request changes to its Account by: (i) ordering via the Admin Console, or (ii) notifying its designated Upteam Account Manager;when this feature is available in the Service.
Payment. All payments due are in U.S. dollars.
a. Credit Card Orders. Fees for Credit Card orders are due immediately upon order placement. Upteam will bill the credit card provided via the Order Page for all applicable Fees when due. If credit card authorizations or charge attempts are declined, Upteam may immediately disable or cancel the Service, in its sole discretion.
i. Invoice Orders. Fees for orders where Upteam issues an invoice are due upon Customer’s receipt of the invoice, and are considered delinquent thirty days after the date of the applicable invoice.
ii. Delinquent Payments. Delinquent payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Upteam in collecting delinquent amounts.
b. Taxes. Customer is responsible for any Taxes, and Customer will pay Upteam for the Service without any reduction for such amounts. If Upteam is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides Upteam with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by law to withhold any Taxes from its payments, Customer must provide an official tax receipt or other appropriate documentation to support such payments.
13. Technical Support Service
Upteam may sell maintenance, technical or other support for the Service but is not obligated to provide such service as a provision of this Agreement. Upteam expressly disclaims any obligation to provide updates, upgrades, bug fixes, patches or any similar service, and You acknowledge that Upteam has no express or implied obligation to provide the same. Upteam may provide bug fixes in the future for bugs or other errors logged by e-mail firstname.lastname@example.org. To the extent that You seek any support for or customization of the Service, You may contact Upteam to seek a cost estimate for Your request at email@example.com.
a. Of the Service by Upteam If: (i) Customer materially violates this Agreement; (ii) Upteam provides Customer with commercially reasonable notice of this violation (which may be by email to the Notification Email Address); (iii) Upteam uses commercially reasonable efforts to discuss and resolve the violation with Customer; and (iv) despite the foregoing, the violation is not resolved to Upteam’s reasonable satisfaction, then Upteam reserves the right to Suspend access to the Service, or to particular components of the Service. If, after all of the foregoing, Customer still has not cured a violation within thirty days of the commencement of a suspension under this Section, then Upteam may immediately terminate the Service for cause.
b. Emergency Security Issues. Notwithstanding the foregoing, if there is an Emergency Security Issue, then Upteam may automatically Suspend the offending use. Suspension will be to the minimum extent required, and of the minimum duration, to prevent or terminate the Emergency Security Issue. If Upteam Suspends a Customer for any reason without prior notice, at Customer’s request, Upteam will provide Customer the reason for the Suspension as soon as is reasonably possible.
15. Confidential Information
a. Obligations. Each party will: (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (b) not disclose the Confidential Information, except to affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its affiliates, employees and agents in violation of this Section.
b. Exceptions. Confidential Information does not include information that: (a) the recipient of the Confidential Information already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party.
c. Required Disclosure. Each party may disclose the other party’s Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.
d. Third Party Requests. Customer is responsible for responding to Third Party Requests. Upteam will, unless it is prohibited by law or by the terms of the Third Party Request: (a) promptly notify Customer of its receipt of a Third Party Request in a manner permitted by law; (b) comply with Customer’s reasonable requests regarding its efforts to oppose a Third Party Request; and (c) provide Customer with the information or tools reasonably required for Customer to respond to the Third Party Request. Customer will first use the Service to access the required information, and will contact Upteam only if it is insufficient for Customer’s needs.
16. Intellectual Property Rights
Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and Upteam owns all Intellectual Property Rights in the Service.
Upteam may (i) include Customer’s name and licensed user count in presentations, marketing materials, and customer lists (which includes, without limitation, customer lists posted on Upteam’s web sites and, with prior Customer approval, screen shots of Customer’s implementation of the Service) and (ii) issue a public announcement regarding the existence or content of this Agreement. Upon Customer’s request, Upteam will furnish Customer with a sample of such usage or announcement. Other than this, neither party may make any public statement regarding the relationship contemplated by this Agreement without the other party’s prior written consent.
Each party represents that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Service, as applicable. Upteam warrants that it will provide the Service in accordance with these terms. Customer acknowledges and agrees that it is solely responsible for compliance with the Children’s Online Privacy Protection Act of 1998, including, but not limited to, obtaining parental consent concerning collection of students’ personal information used in connection with the provisioning and use of the Service by the Customer and Users.
EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. UPTEAM MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICE. THE SERVICE IS NEITHER DESIGNED NOR INTENDED FOR HIGH RISK ACTIVITIES. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT A TELEPHONY SERVICE AND THAT THE SERVICES ARE NOT CAPABLE OF PLACING OR RECEIVING ANY CALLS, INCLUDING EMERGENCY SERVICES CALLS, OVER PUBLICLY SWITCHED TELEPHONE.
a. Termination for Breach. Either party may suspend performance or terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.
b. Modification, Termination of Service. Upteam reserves the right at any time and from time to time to modify the Service (or any part thereof) with or without notice. Customer agrees that Upteam may at any time and for any reason terminate the provision of all or any portion of the Service. Notwithstanding the foregoing, Upteam will provide at least thirty (30) days notice to Customer prior to terminating or suspending the Service (if provided to Customer); provided that such Service may be terminated immediately if (i) Customer has breached this Agreement or (ii) Upteam reasonably determines that it is commercially impractical to continue providing such Service in light of applicable laws. Customer agrees that Upteam shall not be liable to Customer, any End User, or any third party for any modification, suspension, or termination of the Service. Sections 5 (Scope of License), 6 (Nonexclusive License), 15 (Confidential Information), 18 (Representations), 19 (Disclaimers), 20 (Termination), 21 (Indemnification), 23 (Limitation of Liability), and 24 (Miscellaneous) shall survive the expiration or termination of this Agreement.
End of Trial. Unless otherwise agreed upon in writing by the parties hereto, the license(s) and this Agreement will automatically terminate at the end of the agreed upon trial period (“Trial Period”).”
a. By Customer. Customer will indemnify, defend, and hold harmless Upteam from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim: (i) regarding Customer Data or Customer Domain Names; (ii) that Customer Brand Features infringe or misappropriate any patent, copyright, trade secret or trademark of a third party; or (iii) regarding Customer’s, or its Users’, use of the Service in violation of the Agreement.
b. By Upteam. Upteam will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim that Upteam’s technology used to provide the Service infringes or misappropriates any patent, copyright, trade secret or trademark of such third party. Notwithstanding the foregoing, in no event shall Upteam have any obligations or liability under this Section arising from: (i) use of any Service in a modified form or in combination with materials not furnished by Upteam, and (ii) any content, information or data provided by Customer, Users or other third parties.
22. Possible Infringement.
a. Repair, Replace, or Modify. If Upteam reasonably believes the Service infringes upon a third party’s Intellectual Property Rights, then Upteam will: (a) obtain the right for Customer, at Upteam’s expense, to continue using the Service; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Service so that they no longer infringe.
b. Suspension or Termination. If Upteam does not believe the foregoing options are commercially reasonable, then Upteam may suspend or terminate Customer’s use of the impacted Service. If Upteam terminates the impacted Service, then Upteam will provide a pro-rata refund of the unearned Fees actually paid by Customer applicable to the period following termination of the Service.
c. General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party has full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, such consent not to be unreasonably withheld or delayed; and (ii) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE THE ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
23. Limitation of Liability
a. Limitation on Indirect Liability. NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
b. Limitation on Amount of Liability. NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO UPTEAM DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
c. Exceptions to Limitations. These limitations of liability do not apply to breaches of confidentiality obligations, violations of a party’s Intellectual Property Rights by the other party, or indemnification obligations.
a. Notices. All notices must be in writing and addressed to the attention of the other party’s legal department and primary point of contact. Notice will be deemed given: (a) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (b) when verified by automated receipt or electronic logs if sent by facsimile or email.
b. Assignment. Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except to an affiliate, but only if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; and (b) the assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign is void.
c. Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
d. No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.
e. Severability. If any provision of this Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose.
f. No Agency. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.
g. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
h. Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
i. Governing Law. This Agreement shall be governed by the laws of the State of California without regard to conflicts of laws. The parties hereby agree on behalf of themselves and any person claiming by or through them that the sole jurisdiction and venue for any litigation arising from or relating to this Agreement shall be an appropriate federal or state court located in Santa Clara County, California. FOR ANY DISPUTE RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN SANTA CLARA COUNTY, CALIFORNIA.
j. Amendments. Any amendment must be in writing and expressly state that it is amending this Agreement.
k. Survival. Those provisions that by their nature should survive termination of this Agreement, will survive termination of this Agreement.
l. Entire Agreement. This Agreement and all documents referenced herein are the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. The terms located at a URL and referenced in this Agreement, as they may be amended from time to time, are hereby incorporated by this reference.
m. Interpretation of Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Agreement, and the terms located at any URL.
n. Counterparts. The parties may enter into this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.
a. Account Manager means the Upteam representative working with Customer regarding Customer’s purchase of the Service.
b. Admin Account means the Google Apps administrative account(s) provided to Customer by Google and used by the Service for the purpose of administering the Customer’s Google Apps domain. The Service must first be authorized by an Admin Account in order to access Customer’s Google Apps domain and Google Apps data.
c. Admin Console means the online tool provided by Upteam to Customer for use in reporting and certain other administration functions.
d. Administrator means the Customer-designated technical personnel who administer the Service on Customer’s behalf.
e. Acceptable Use Policy means the acceptable use policy for the Service available at https://workspace.google.com/intl/en/terms/use_policy.html or other such URL as may be provided by Upteam or Google.
f. APIs means the Google APIs listed here: https://developers.google.com/gsuite.
h. Google App Engine means the service listed here: https://cloud.google.com/appengine/docs/the-appengine-environments
i. Google Apps Marketplace means the service listed here: https://gsuite.google.com/marketplace
j. Google Android Market or Google Play means the service listed here: https://play.google.com/store and whose main features are generally accessible by Android operating system based electronic devices.
k. Confidential Information means information disclosed by a party to the other party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances. Customer Data is Customer’s Confidential Information.
l. Customer Data means data, including email and contact information, provided, generated, displayed or managed via the Service by Customer.
m. Emergency Security Issue means either: (a) Customer’s use of the Service in violation of the Acceptable Use Policy, which could disrupt: (i) the Service; (ii) others use of the Service; or (iii) the Google network or servers used to provide the Service; or (b) unauthorized third party access to the Service.
n. Fees means the amounts invoiced to Customer by Upteam for the Service as described in an Order Page.
o. Help Center means the Upteam help center accessible at firstname.lastname@example.org
p. High Risk Activities means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the failure of the Service could lead to death, personal injury, or environmental damage.
q. Intellectual Property Rights means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.
r. Notification Email Address means the email address designated by Customer to receive email notifications from Upteam. Customer may change this email address by contacting their Upteam Account Manager until such time as this feature is available through the Admin Console.
s. Order Page means the online order page Customer completes in signing up for the Service, generally through the Google Apps Marketplace or a designated Upteam website.
u. Purchase Order means a Customer issued purchase order.
v. “Toolkit” “The Software,” “Service”, and “The Service” mean the Service , which provide a suite of utilities for organizations and users to manage various 3d party accounts, service, and data, as licensed by Customer under this Agreement. The Service is as described here: https://upteam.com/project/upteam-toolkit/, or other such URL as may be provided.
w. Service Commencement Date is the date upon which Upteam makes the Service available to Customer, and will be within one week of Upteam’s receipt of the completed Order Page or Form, unless otherwise agreed by the parties.
x. Service Pages mean the web pages displaying the Service to Users.
y. Suspend means the immediate disabling of access to the Service, or components of the Service, as applicable, to prevent further use of the Service.
z. Taxes means any duties, customs fees, or taxes (other than Upteam’s income tax) associated with the sale of the Service, including any related penalties or interest.
aa. Term means the term of the Agreement, which will begin upon the Effective Date and continue for as long as Customer is receiving Service from Upteam, unless terminated earlier pursuant to the Agreement.
ab. Third Party Request means a request from a third party for records relating to a Customer’s use of the Service. Third Party Requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the Customer permitting the disclosure.
ac. URL Terms means the Service definitions, and other terms with which Customer must comply, which are located at a URL and referenced in this Agreement.
ad. Users mean the individuals that Customer permits to use the Service.
ae. “Google,” “Google Apps,” “Google Apps Engine” “Google Workspace” are registered trademarks of Google.
BY ENTERING INTO THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU (I) HAVE READ THIS AGREEMENT, UNDERSTAND IT, (II) HAVE ALL RIGHT POWER AND AUTHORITY TO BIND YOURSELF, INCLUDING YOUR COMPANY OR ENTERPRISE TO IT, AND (III) AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.