UpMetrics Terms of Use
SPORTUP, INC. DBA/ UPMETRICS
Terms of Use
Date Last Updated: September 1, 2021
SportUp, Inc. d/b/a UpMetrics (“UpMetrics” or “we”) provides a platform that streamlines logistics and empowers organizations to collect, interpret, and leverage their data (the “Subscription Services”) through our website, accessible at http://www.upmetrics.com (the “Site”). Please read carefully the following terms and conditions (this “Agreement”) and our Privacy Policy, which can be found at https://www.upmetrics.com/privacy-policy.html, which is incorporated by reference into this Agreement. This Agreement governs Your access to and use of the Subscription Services and constitutes a binding legal agreement between You and UpMetrics. This Agreement may be modified or supplemented by one or more separate agreements entered into between UpMetrics and You regarding your subscription to the SAAS LICENSE AND PROFESSIONAL SERVICES AGREEMENT or STATEMENT OF WORK (the “Subscription Agreement”). To the extent there is any inconsistency between the terms of this Agreement and the SAAS LICENSE AND PROFESSIONAL SERVICES AGREEMENT or STATEMENT OF WORK, the terms of the SAAS LICENSE AND PROFESSIONAL SERVICES AGREEMENT or STATEMENT OF WORK will govern.
YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING THE CHECKBOX OR BY ACCESSING OR USING THE SUBSCRIPTION SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SUBSCRIPTION SERVICES. If you accept or agree to this Agreement on behalf of a company, school or other legal entity, you represent and warrant that you have the authority to bind that company, school or other legal entity to this Agreement and, in such event, “You” and “Your” will refer and apply to that company, school or other legal entity.
1. Modification
UpMetrics reserves the right to modify, discontinue or terminate the Subscription Services or to modify this Agreement, at any time and without prior notice. If we modify this Agreement, we will post the modification on the Site or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of this Agreement. By continuing to access or use the Subscription Services after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to You, Your only recourse is to cease using the Subscription Services, except as otherwise provided in the Subscription Agreement.
2. Account Registration
In order to access the Subscription Services, You must register to create an account (“Account”). During the registration process, You will be required to provide certain information and you will establish a password. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. UpMetrics reserves the right to suspend or terminate Your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under Your Account, whether or not You have authorized such activities or actions. You will immediately notify UpMetrics of any unauthorized use of Your Account.
3. Subscription Services
Subject to Your compliance with the terms and conditions of this Agreement and the Subscription Agreement (if any), UpMetrics will make the Subscription Services available to You during the Term. You may access and use the Subscription Services solely for Your internal business purposes and You may not resell, or otherwise provide any third party with access to, the Subscription Services without prior written permission from UpMetrics or as indicated in the Subscription Agreement.
4. Restrictions
You shall not attempt to interfere with or disrupt the Subscription Services. Except as otherwise set forth in the Subscription Agreement, You shall not allow access to or use of the Subscription Services by anyone other than Authorized Users (defined below). You shall not: (a) copy, modify or distribute any portion of the Subscription Services; (b) rent, lease, or provide access to the Subscription Services on a time-share or service bureau basis, or otherwise distribute or make the Subscription Services available to third parties, or (c) transfer any of Your rights hereunder to any third party. Notwithstanding the foregoing, You may make the Subscription Services available to Your grantees (to the extent identified in the Subscription Agreement), provided that the use by Your grantees of the Subscription Services shall be subject to all of the restrictions under this Agreement, including, but not limited to, the restrictions under this section. You acknowledge that the Subscription Services constitute and contain valuable trade secrets of UpMetrics and its licensors, and, in order to protect such trade secrets and other interests, You agree not to disassemble, decompile or reverse engineer the Subscription Services or allow any third party to do so, except to the extent such restrictions are prohibited by law. You acknowledge and agree that UpMetrics does not monitor or police communications or data transmitted through the Subscription Services and that UpMetrics shall not be responsible for the content of any such communications or transmissions. You shall use the Subscription Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others, and You shall not attempt to gain unauthorized access to the Subscription Services or its related systems or networks. You shall not use the Subscription Services to transmit any unsolicited commercial communications in violation of applicable laws, or to send or store via the Subscription Services (i) materials or information which may violate intellectual property rights or other proprietary rights of third parties, or which have been unlawfully obtained or (ii) materials containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. You shall keep confidential and not disclose to any third parties, and shall ensure that Authorized Users keep confidential and do not disclose to any third parties, any user identifications, account numbers and account profiles for the Subscription Services.
5. Data Security and Storage
UpMetrics shall adopt adequate archival procedures to store the Customer Data (defined below). In the event of any loss or corruption of Customer Data, UpMetrics shall use its commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by UpMetrics in accordance with its archival procedures. UpMetrics shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data caused by any third party. UPMETRICS’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA PURSUANT TO THIS SECTION SHALL CONSTITUTE UPMETRICS’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA. UpMetrics reserves the right to establish or modify its general practices and limits relating to storage of Customer Data.
6. Your Obligations
Cooperation and Assistance. As a condition to UpMetrics’s obligations hereunder, You shall at all times: (a) provide UpMetrics with good faith cooperation and access to such information as may be reasonably required by UpMetrics in order to provide the Subscription Services, including, but not limited to, providing Customer Data to UpMetrics; (b) provide to UpMetrics such personnel assistance, as may be reasonably requested by UpMetrics from time to time; (c) carry out in a timely manner all other responsibilities that You have under this Agreement; (d) at Your option, provide UpMetrics with feedback, comments, and suggestions for improvements relating to the Subscription Services (“Feedback”), and (e) comply with all applicable local, state, federal and foreign laws in using the Subscription Services.
Marketing Support. During the Term of this Agreement, You grant to UpMetrics a non-exclusive, limited right to use Your name, trademarks, and logos (collectively, the “Customer Marks”) in the production of marketing materials identifying You as an UpMetrics customer, provided that such use of the Customer Marks is in accordance with Your trademark and logo use guidelines, which You shall provide to UpMetrics. Such marketing materials shall include but not be limited to UpMetrics’s websites, brochures, press releases, trade show displays, and presentations. In addition, during the Term of this Agreement, You grant to UpMetrics the right to publicly acknowledge You as a UpMetrics customer.
Enforcement. You are responsible for all activity occurring under Your use of the Subscription Services. You shall ensure that all Authorized Users comply with this Agreement, including, without limitation, with Your obligations set forth in the “Restrictions” section. You shall promptly notify UpMetrics of any suspected or alleged violation of this Agreement including any unauthorized use of any password or account or any other known or suspected breach of security. You shall cooperate with UpMetrics with respect to: (a) investigation by UpMetrics of any suspected or alleged violation of this Agreement and (b) any action by UpMetrics to enforce this Agreement. UpUpMetrics may suspend or terminate any Authorized User’s access to the Subscription Services upon notice to You in the event that UpMetrics reasonably determines that such Authorized User has violated this Agreement. You shall be liable for any violation of this Agreement by any Authorized User.
Telecommunications and Internet Services. You acknowledge and agree that the use of the Subscription Services by You and by any Authorized Users is dependent upon access to telecommunications and Internet services. You shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Subscription Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. UpMetrics shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
7. Fees
In consideration for UpMetrics providing the Subscription Services, You shall pay to UpMetrics all the applicable subscription fees and other charges, as provided for in this section (collectively, “Fees”). UpMetrics may offer You a trial period to use the Subscription Services without cost (“Free Trial”). Thereafter, annual Fees for Your use of the Subscription Services shall be (i) as described and/or as selected by You via the Site or (ii) as negotiated between You and UpMetrics and set forth in the Subscription Agreement.
8. FERPA
If You are a school or school district, or are otherwise subject to the provisions of the Family Educational Rights and Privacy Act (“FERPA”), this section applies to You. Under certain circumstances, You may provide information to UpMetrics that includes personally identifiable information from education records that are subject to FERPA (“FERPA Records”). If You are regulated by FERPA, You agree that You are familiar with and agree to be responsible for compliance with FERPA and all other laws, rules or regulations concerning the collection, use, and disclosure of FERPA Records, including, without limitation, any FERPA Records that You or Authorized Users may input into or access or obtain from the Subscription Services. In the event that You are regulated by FERPA, You and UpMetrics agree as follows: (A) You have designated UpMetrics as a “school official” as that term is used in FERPA, and You have determined that UpMetrics has a “legitimate educational interest,” for the purpose of carrying out its responsibilities relating to the Subscription Services; (B) UpMetrics acknowledges that it shall be bound by all relevant provisions of FERPA and agrees that FERPA Records obtained from You in connection with the Subscription Services: (i) will not be disclosed by UpMetrics to third parties, except as expressly provided for in FERPA, without signed and dated written consent of the student, or if the student is under eighteen (18) years of age, signed and written consent of the student’s parents/guardians and (ii) will be used only to fulfill UpMetrics's responsibilities relating to the Subscription Services. In accordance with FERPA, You and UpMetrics agree that any consents to disclose information may be made electronically.
9. Compliance with Laws
You warrant, represent and agree that You will not provide any user data or otherwise use the Subscription Services in a manner that (i) infringes, violates or misappropriates another’s intellectual property rights, rights of publicity or privacy, or other rights; (ii) violates any international, federal, state or local law, statute, ordinance or regulation or which would render Company in violation of any applicable laws or regulations, including without limitation FERPA and the Children’s Online Privacy Protection Act; (iii) is harmful, fraudulent, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable; or (iv) jeopardizes the security of Your Account in any way, such as allowing someone else access to your Account or password. Additionally, You represent, warrant and agree that You possess all rights necessary to provide Customer Data (including FERPA Records). You agree to comply strictly with all applicable laws, rules, and regulations in respect of use of the Subscription Services, including all export control or import laws and regulations of any relevant jurisdiction. You agree to obtain licenses to export, re-export or import the Subscription Services as may be required after delivery of Subscription Services to You, and agree not to disclose or otherwise provide access to Subscription Services directly or indirectly to any party with knowledge, or reason to know, that such party will engage in illegal activities.
10. Proprietary Rights
Subject to the limited rights expressly granted hereunder, UpMetrics and its licensors exclusively own and retain all rights, title and interest in and to the Subscription Services (including all copies of any software used for the provision of the Subscription Services), including all Intellectual Property Rights therein or relating thereto. UpMetrics shall exclusively own all rights, title and interest in and to the Feedback, and You hereby assign to UpMetrics all of Your right, title, and interest in the Feedback, including all Intellectual Property Rights therein or relating thereto, and, at UpMetrics’s request and expense, You will execute documents and take such further acts as UpMetrics may reasonably request to assist UpMetrics to acquire, perfect and maintain such Intellectual Property Rights in the Feedback. You shall exclusively own all rights, title and interest in and to all Customer Data, provided, however, that You hereby grant UpMetrics a perpetual, non-exclusive, worldwide license to all Customer Data on an anonymized, de-identified basis to use for any purpose that UpMetrics deems appropriate in its sole discretion. Customer Data (solely to the extent not anonymized and/or de-identified) is deemed Your Confidential Information under this Agreement. All rights not expressly granted to You are reserved by UpMetrics. All trademarks, service marks, logos, trade names and any other proprietary designations of each party shall at all times remain exclusively owned by such party, subject to the limited licenses granted herein.
11. Confidentiality
Definition and Exclusions. By virtue of this Agreement, the parties may have access to each other’s Confidential Information. “Confidential Information”, as used in this Agreement, means any written, machine-reproducible and/or visual materials that are labeled as proprietary, confidential, or with words of similar meaning, and all information that is orally or visually disclosed, if not so marked, if it is identified as proprietary or confidential at the time of its disclosure or in a writing provided within thirty (30) days after disclosure. UpMetrics Confidential Information includes, without limitation, the Subscription Services and any software used for the provision of the Subscription Services, whether in source or executable code, documentation, nonpublic financial information, pricing other than pricing publicly disclosed on UpMetrics’s website, business plans, techniques, methods, processes, and the results of any performance tests of the Subscription Services. Customer Data (solely to the extent not anonymized and/or de-identified) is deemed Your Confidential Information. Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.
Use and Nondisclosure. During the Term and for a period of five (5) years after expiration or termination of this Agreement, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. For avoidance of doubt, You understand and agree that UpMetrics may disclose the Customer Data to certain third parties solely to the extent necessary for providing the Subscription Services to You. Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of this Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Each party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
12. Warranty
Warranty for Subscription Services. UpMetrics warrants that (i) the Subscription Services shall perform materially as represented on the Site or in other materials provided to You and (ii) the Subscription Services will not contain or transmit to You any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
Disclaimer. You assume sole responsibility and liability for results obtained from the use of the Subscription Services and for conclusions drawn from such use. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. UpMetrics shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to UpMetrics by You, including, without limitation, Customer Data, in connection with the Subscription Services or any actions taken by UpMetrics at Your direction. UpMetrics shall have no liability for any claims, losses or damages arising out of or in connection with the use by You or by any Authorized User of any third-party products, services, software or websites that are accessed via links from within the Subscription Services. EXCEPT AS EXPRESSLY PROVIDED HEREIN, UPMETRICS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SUBSCRIPTION SERVICES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN THE WARRANTY SECTION ABOVE, UPMETRICS DISCLAIMS ANY WARRANTY THAT THE SUBSCRIPTION SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. UPMETRICS FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SUBSCRIPTION SERVICES AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. UPMETRICS FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM UPMETRICS OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
13. Term and Termination
Term. This Agreement will commence when You click “I accept” or “I agree” and shall continue and renew upon You and UpMetrics entering into a mutually acceptable Subscription Agreement. The renewal periods are collectively the “Term”. You may terminate this Agreement by providing notice to UpMetrics at any time, subject to the terms of the Subscription Agreement.
Termination. UpMetrics may terminate this Agreement at any time if it reasonably determines that You are in material breach of this Agreement, including, but not limited to, with respect to payment of Fees. UpMetrics may terminate this Agreement, for any reason, upon thirty (30) days’ notice to You, except as otherwise set forth in the Subscription Agreement.
Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, Your and Your Authorized Users’ right to access and use the Subscription Services shall immediately terminate, You and Your Authorized Users shall immediately cease all use of the Subscription Services, and You shall return to UpMetrics and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to UpMetrics. Upon expiration or termination of this Agreement, UpMetrics shall have no obligation to deliver any copy of the Customer Data to You, and may delete such Customer Data at any time. Furthermore, upon expiration or termination of this Agreement, UpMetrics shall cease use of the Customer Marks; provided, however, that (a) UpMetrics shall have a reasonable time to remove the Customer Marks from UpMetrics’s promotional materials, (b) UpMetrics shall be entitled to distribute all of the promotional materials printed during the Term that include the Customer Marks, and (c) UpMetrics shall not be required to remove any such printed materials from circulation.
14. Indemnification
Indemnification by UpMetrics. UpMetrics shall defend (or settle) any suit or action brought against You to the extent that it is based upon a claim that the Subscription Services infringe or misappropriate the Intellectual Property Rights of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against You. UpMetrics’s obligations under this section are contingent upon: (a) You providing UpMetrics with prompt written notice of such claim, not to exceed 30 days following the date You learn of such claim; (b) You providing reasonable cooperation to UpMetrics, at UpMetrics’s expense, in the defense and settlement of such claim; and (c) UpMetrics having sole authority to defend or settle such claim. In the event that UpMetrics’s right to provide the Subscription Services is enjoined or in UpMetrics’s reasonable opinion is likely to be enjoined, UpMetrics may obtain the right to continue providing the Subscription Services, replace or modify the Subscription Services so that they become non-infringing, or, if such remedies are not reasonably available, terminate this Agreement without liability to You, except as set forth in the Subscription Agreement. THE FOREGOING STATES THE ENTIRE OBLIGATION OF UPMETRICS AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SUBSCRIPTION SERVICES. UpMetrics shall have no liability under this section to the extent that any third-party claims described herein are based on use of the Subscription Services in a manner that violates this Agreement or the instructions given to You by UpMetrics.
Indemnification by You. You shall defend (or settle), indemnify and hold harmless UpMetrics, its officers, directors and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with any third-party claim that: (i) a third party has suffered injury, damage or loss resulting from the use by You or by any Authorized User of the Subscription Services, or (ii) the Customer Data, or the use by You or by any Authorized User of the Subscription Services in violation of this Agreement, infringes or violates the Intellectual Property Rights or other proprietary rights of a third party. Your obligations under this section are contingent upon: (a) UpMetrics providing You with prompt written notice of such claim; (b) UpMetrics providing reasonable cooperation to You, at Your expense, in the defense and settlement of such claim; and (c) You having sole authority to defend or settle such claim.
15. Limitation of Liability
EXCEPT FOR LIABILITY ARISING FROM A BREACH OF THE “RESTRICTIONS” SECTION AND THE “ENFORCEMENT” SECTION, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL UPMETRICS’S AGGREGATE LIABILITY TO YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR ACCESS TO AND USE OF THE SUBSCRIPTION SERVICES EXCEED THE TOTAL FEES PAID BY YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
16. General
Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of California, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in the San Francisco County. You hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations affected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.
Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
Assignment. Neither party may assign this Agreement without prior written consent of the other party; provided, however that either party may assign this Agreement without the consent of the other party in connection with a merger, reorganization, acquisition, or sale of all or substantially all of the assets of the party seeking to assign this Agreement (or any similar change of control transaction), and provided that the surviving entity has agreed to be bound by this Agreement.
Entire Agreement. This Agreement together with the Subscription Agreement (if any) constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. Any modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. To the extent there is any conflict or inconsistency between the Subscription Agreement and this Agreement, the terms of the Subscription Agreement will govern.
Equitable Relief. You acknowledge that a breach by You of any confidentiality or proprietary rights provision of this Agreement may cause UpMetrics irreparable damage, for which the award of damages would not be adequate compensation. Consequently, UpMetrics may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of You (including your approved grantees) and UpMetrics and is not intended to benefit any other party.
Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.
Notice. UpMetrics may give notice to You by e-mail to Your e-mail address on record in UpMetrics’s account information. You may give notice to UpMetrics by sending an e-mail to legal@upmetrics.com.
17. Definitions
“Authorized User” means Your employees, consultants, contractors, customers or agents that have been assigned a unique username-password combination to access and use the Subscription Services, or who have otherwise been provided with access to your Account. “Customer Data” means user/customer/student data and information (including FERPA Records) input into the Subscription Services by You or any Authorized User or otherwise provided by You or any Authorized User to UpMetrics. “Effective Date” means the date first on record with UpMetrics for Your clicking the check box to accept this Agreement or the date of Your first accessing and using the Subscription Services. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
18. Contacting UpMetrics
If you have any questions about this Agreement, please contact UpMetrics at legal@upmetrics.com.
SportUp, Inc. dba UpMetrics
201 Spear Street, Suite 1100
San Francisco, CA 94105
Terms of Use
Date Last Updated: September 1, 2021
SportUp, Inc. d/b/a UpMetrics (“UpMetrics” or “we”) provides a platform that streamlines logistics and empowers organizations to collect, interpret, and leverage their data (the “Subscription Services”) through our website, accessible at http://www.upmetrics.com (the “Site”). Please read carefully the following terms and conditions (this “Agreement”) and our Privacy Policy, which can be found at https://www.upmetrics.com/privacy-policy.html, which is incorporated by reference into this Agreement. This Agreement governs Your access to and use of the Subscription Services and constitutes a binding legal agreement between You and UpMetrics. This Agreement may be modified or supplemented by one or more separate agreements entered into between UpMetrics and You regarding your subscription to the SAAS LICENSE AND PROFESSIONAL SERVICES AGREEMENT or STATEMENT OF WORK (the “Subscription Agreement”). To the extent there is any inconsistency between the terms of this Agreement and the SAAS LICENSE AND PROFESSIONAL SERVICES AGREEMENT or STATEMENT OF WORK, the terms of the SAAS LICENSE AND PROFESSIONAL SERVICES AGREEMENT or STATEMENT OF WORK will govern.
YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING THE CHECKBOX OR BY ACCESSING OR USING THE SUBSCRIPTION SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SUBSCRIPTION SERVICES. If you accept or agree to this Agreement on behalf of a company, school or other legal entity, you represent and warrant that you have the authority to bind that company, school or other legal entity to this Agreement and, in such event, “You” and “Your” will refer and apply to that company, school or other legal entity.
1. Modification
UpMetrics reserves the right to modify, discontinue or terminate the Subscription Services or to modify this Agreement, at any time and without prior notice. If we modify this Agreement, we will post the modification on the Site or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of this Agreement. By continuing to access or use the Subscription Services after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to You, Your only recourse is to cease using the Subscription Services, except as otherwise provided in the Subscription Agreement.
2. Account Registration
In order to access the Subscription Services, You must register to create an account (“Account”). During the registration process, You will be required to provide certain information and you will establish a password. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. UpMetrics reserves the right to suspend or terminate Your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under Your Account, whether or not You have authorized such activities or actions. You will immediately notify UpMetrics of any unauthorized use of Your Account.
3. Subscription Services
Subject to Your compliance with the terms and conditions of this Agreement and the Subscription Agreement (if any), UpMetrics will make the Subscription Services available to You during the Term. You may access and use the Subscription Services solely for Your internal business purposes and You may not resell, or otherwise provide any third party with access to, the Subscription Services without prior written permission from UpMetrics or as indicated in the Subscription Agreement.
4. Restrictions
You shall not attempt to interfere with or disrupt the Subscription Services. Except as otherwise set forth in the Subscription Agreement, You shall not allow access to or use of the Subscription Services by anyone other than Authorized Users (defined below). You shall not: (a) copy, modify or distribute any portion of the Subscription Services; (b) rent, lease, or provide access to the Subscription Services on a time-share or service bureau basis, or otherwise distribute or make the Subscription Services available to third parties, or (c) transfer any of Your rights hereunder to any third party. Notwithstanding the foregoing, You may make the Subscription Services available to Your grantees (to the extent identified in the Subscription Agreement), provided that the use by Your grantees of the Subscription Services shall be subject to all of the restrictions under this Agreement, including, but not limited to, the restrictions under this section. You acknowledge that the Subscription Services constitute and contain valuable trade secrets of UpMetrics and its licensors, and, in order to protect such trade secrets and other interests, You agree not to disassemble, decompile or reverse engineer the Subscription Services or allow any third party to do so, except to the extent such restrictions are prohibited by law. You acknowledge and agree that UpMetrics does not monitor or police communications or data transmitted through the Subscription Services and that UpMetrics shall not be responsible for the content of any such communications or transmissions. You shall use the Subscription Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others, and You shall not attempt to gain unauthorized access to the Subscription Services or its related systems or networks. You shall not use the Subscription Services to transmit any unsolicited commercial communications in violation of applicable laws, or to send or store via the Subscription Services (i) materials or information which may violate intellectual property rights or other proprietary rights of third parties, or which have been unlawfully obtained or (ii) materials containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. You shall keep confidential and not disclose to any third parties, and shall ensure that Authorized Users keep confidential and do not disclose to any third parties, any user identifications, account numbers and account profiles for the Subscription Services.
5. Data Security and Storage
UpMetrics shall adopt adequate archival procedures to store the Customer Data (defined below). In the event of any loss or corruption of Customer Data, UpMetrics shall use its commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by UpMetrics in accordance with its archival procedures. UpMetrics shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data caused by any third party. UPMETRICS’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA PURSUANT TO THIS SECTION SHALL CONSTITUTE UPMETRICS’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA. UpMetrics reserves the right to establish or modify its general practices and limits relating to storage of Customer Data.
6. Your Obligations
Cooperation and Assistance. As a condition to UpMetrics’s obligations hereunder, You shall at all times: (a) provide UpMetrics with good faith cooperation and access to such information as may be reasonably required by UpMetrics in order to provide the Subscription Services, including, but not limited to, providing Customer Data to UpMetrics; (b) provide to UpMetrics such personnel assistance, as may be reasonably requested by UpMetrics from time to time; (c) carry out in a timely manner all other responsibilities that You have under this Agreement; (d) at Your option, provide UpMetrics with feedback, comments, and suggestions for improvements relating to the Subscription Services (“Feedback”), and (e) comply with all applicable local, state, federal and foreign laws in using the Subscription Services.
Marketing Support. During the Term of this Agreement, You grant to UpMetrics a non-exclusive, limited right to use Your name, trademarks, and logos (collectively, the “Customer Marks”) in the production of marketing materials identifying You as an UpMetrics customer, provided that such use of the Customer Marks is in accordance with Your trademark and logo use guidelines, which You shall provide to UpMetrics. Such marketing materials shall include but not be limited to UpMetrics’s websites, brochures, press releases, trade show displays, and presentations. In addition, during the Term of this Agreement, You grant to UpMetrics the right to publicly acknowledge You as a UpMetrics customer.
Enforcement. You are responsible for all activity occurring under Your use of the Subscription Services. You shall ensure that all Authorized Users comply with this Agreement, including, without limitation, with Your obligations set forth in the “Restrictions” section. You shall promptly notify UpMetrics of any suspected or alleged violation of this Agreement including any unauthorized use of any password or account or any other known or suspected breach of security. You shall cooperate with UpMetrics with respect to: (a) investigation by UpMetrics of any suspected or alleged violation of this Agreement and (b) any action by UpMetrics to enforce this Agreement. UpUpMetrics may suspend or terminate any Authorized User’s access to the Subscription Services upon notice to You in the event that UpMetrics reasonably determines that such Authorized User has violated this Agreement. You shall be liable for any violation of this Agreement by any Authorized User.
Telecommunications and Internet Services. You acknowledge and agree that the use of the Subscription Services by You and by any Authorized Users is dependent upon access to telecommunications and Internet services. You shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Subscription Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. UpMetrics shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
7. Fees
In consideration for UpMetrics providing the Subscription Services, You shall pay to UpMetrics all the applicable subscription fees and other charges, as provided for in this section (collectively, “Fees”). UpMetrics may offer You a trial period to use the Subscription Services without cost (“Free Trial”). Thereafter, annual Fees for Your use of the Subscription Services shall be (i) as described and/or as selected by You via the Site or (ii) as negotiated between You and UpMetrics and set forth in the Subscription Agreement.
8. FERPA
If You are a school or school district, or are otherwise subject to the provisions of the Family Educational Rights and Privacy Act (“FERPA”), this section applies to You. Under certain circumstances, You may provide information to UpMetrics that includes personally identifiable information from education records that are subject to FERPA (“FERPA Records”). If You are regulated by FERPA, You agree that You are familiar with and agree to be responsible for compliance with FERPA and all other laws, rules or regulations concerning the collection, use, and disclosure of FERPA Records, including, without limitation, any FERPA Records that You or Authorized Users may input into or access or obtain from the Subscription Services. In the event that You are regulated by FERPA, You and UpMetrics agree as follows: (A) You have designated UpMetrics as a “school official” as that term is used in FERPA, and You have determined that UpMetrics has a “legitimate educational interest,” for the purpose of carrying out its responsibilities relating to the Subscription Services; (B) UpMetrics acknowledges that it shall be bound by all relevant provisions of FERPA and agrees that FERPA Records obtained from You in connection with the Subscription Services: (i) will not be disclosed by UpMetrics to third parties, except as expressly provided for in FERPA, without signed and dated written consent of the student, or if the student is under eighteen (18) years of age, signed and written consent of the student’s parents/guardians and (ii) will be used only to fulfill UpMetrics's responsibilities relating to the Subscription Services. In accordance with FERPA, You and UpMetrics agree that any consents to disclose information may be made electronically.
9. Compliance with Laws
You warrant, represent and agree that You will not provide any user data or otherwise use the Subscription Services in a manner that (i) infringes, violates or misappropriates another’s intellectual property rights, rights of publicity or privacy, or other rights; (ii) violates any international, federal, state or local law, statute, ordinance or regulation or which would render Company in violation of any applicable laws or regulations, including without limitation FERPA and the Children’s Online Privacy Protection Act; (iii) is harmful, fraudulent, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable; or (iv) jeopardizes the security of Your Account in any way, such as allowing someone else access to your Account or password. Additionally, You represent, warrant and agree that You possess all rights necessary to provide Customer Data (including FERPA Records). You agree to comply strictly with all applicable laws, rules, and regulations in respect of use of the Subscription Services, including all export control or import laws and regulations of any relevant jurisdiction. You agree to obtain licenses to export, re-export or import the Subscription Services as may be required after delivery of Subscription Services to You, and agree not to disclose or otherwise provide access to Subscription Services directly or indirectly to any party with knowledge, or reason to know, that such party will engage in illegal activities.
10. Proprietary Rights
Subject to the limited rights expressly granted hereunder, UpMetrics and its licensors exclusively own and retain all rights, title and interest in and to the Subscription Services (including all copies of any software used for the provision of the Subscription Services), including all Intellectual Property Rights therein or relating thereto. UpMetrics shall exclusively own all rights, title and interest in and to the Feedback, and You hereby assign to UpMetrics all of Your right, title, and interest in the Feedback, including all Intellectual Property Rights therein or relating thereto, and, at UpMetrics’s request and expense, You will execute documents and take such further acts as UpMetrics may reasonably request to assist UpMetrics to acquire, perfect and maintain such Intellectual Property Rights in the Feedback. You shall exclusively own all rights, title and interest in and to all Customer Data, provided, however, that You hereby grant UpMetrics a perpetual, non-exclusive, worldwide license to all Customer Data on an anonymized, de-identified basis to use for any purpose that UpMetrics deems appropriate in its sole discretion. Customer Data (solely to the extent not anonymized and/or de-identified) is deemed Your Confidential Information under this Agreement. All rights not expressly granted to You are reserved by UpMetrics. All trademarks, service marks, logos, trade names and any other proprietary designations of each party shall at all times remain exclusively owned by such party, subject to the limited licenses granted herein.
11. Confidentiality
Definition and Exclusions. By virtue of this Agreement, the parties may have access to each other’s Confidential Information. “Confidential Information”, as used in this Agreement, means any written, machine-reproducible and/or visual materials that are labeled as proprietary, confidential, or with words of similar meaning, and all information that is orally or visually disclosed, if not so marked, if it is identified as proprietary or confidential at the time of its disclosure or in a writing provided within thirty (30) days after disclosure. UpMetrics Confidential Information includes, without limitation, the Subscription Services and any software used for the provision of the Subscription Services, whether in source or executable code, documentation, nonpublic financial information, pricing other than pricing publicly disclosed on UpMetrics’s website, business plans, techniques, methods, processes, and the results of any performance tests of the Subscription Services. Customer Data (solely to the extent not anonymized and/or de-identified) is deemed Your Confidential Information. Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.
Use and Nondisclosure. During the Term and for a period of five (5) years after expiration or termination of this Agreement, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. For avoidance of doubt, You understand and agree that UpMetrics may disclose the Customer Data to certain third parties solely to the extent necessary for providing the Subscription Services to You. Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of this Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Each party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
12. Warranty
Warranty for Subscription Services. UpMetrics warrants that (i) the Subscription Services shall perform materially as represented on the Site or in other materials provided to You and (ii) the Subscription Services will not contain or transmit to You any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
Disclaimer. You assume sole responsibility and liability for results obtained from the use of the Subscription Services and for conclusions drawn from such use. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. UpMetrics shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to UpMetrics by You, including, without limitation, Customer Data, in connection with the Subscription Services or any actions taken by UpMetrics at Your direction. UpMetrics shall have no liability for any claims, losses or damages arising out of or in connection with the use by You or by any Authorized User of any third-party products, services, software or websites that are accessed via links from within the Subscription Services. EXCEPT AS EXPRESSLY PROVIDED HEREIN, UPMETRICS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SUBSCRIPTION SERVICES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN THE WARRANTY SECTION ABOVE, UPMETRICS DISCLAIMS ANY WARRANTY THAT THE SUBSCRIPTION SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. UPMETRICS FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SUBSCRIPTION SERVICES AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. UPMETRICS FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM UPMETRICS OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
13. Term and Termination
Term. This Agreement will commence when You click “I accept” or “I agree” and shall continue and renew upon You and UpMetrics entering into a mutually acceptable Subscription Agreement. The renewal periods are collectively the “Term”. You may terminate this Agreement by providing notice to UpMetrics at any time, subject to the terms of the Subscription Agreement.
Termination. UpMetrics may terminate this Agreement at any time if it reasonably determines that You are in material breach of this Agreement, including, but not limited to, with respect to payment of Fees. UpMetrics may terminate this Agreement, for any reason, upon thirty (30) days’ notice to You, except as otherwise set forth in the Subscription Agreement.
Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, Your and Your Authorized Users’ right to access and use the Subscription Services shall immediately terminate, You and Your Authorized Users shall immediately cease all use of the Subscription Services, and You shall return to UpMetrics and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to UpMetrics. Upon expiration or termination of this Agreement, UpMetrics shall have no obligation to deliver any copy of the Customer Data to You, and may delete such Customer Data at any time. Furthermore, upon expiration or termination of this Agreement, UpMetrics shall cease use of the Customer Marks; provided, however, that (a) UpMetrics shall have a reasonable time to remove the Customer Marks from UpMetrics’s promotional materials, (b) UpMetrics shall be entitled to distribute all of the promotional materials printed during the Term that include the Customer Marks, and (c) UpMetrics shall not be required to remove any such printed materials from circulation.
14. Indemnification
Indemnification by UpMetrics. UpMetrics shall defend (or settle) any suit or action brought against You to the extent that it is based upon a claim that the Subscription Services infringe or misappropriate the Intellectual Property Rights of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against You. UpMetrics’s obligations under this section are contingent upon: (a) You providing UpMetrics with prompt written notice of such claim, not to exceed 30 days following the date You learn of such claim; (b) You providing reasonable cooperation to UpMetrics, at UpMetrics’s expense, in the defense and settlement of such claim; and (c) UpMetrics having sole authority to defend or settle such claim. In the event that UpMetrics’s right to provide the Subscription Services is enjoined or in UpMetrics’s reasonable opinion is likely to be enjoined, UpMetrics may obtain the right to continue providing the Subscription Services, replace or modify the Subscription Services so that they become non-infringing, or, if such remedies are not reasonably available, terminate this Agreement without liability to You, except as set forth in the Subscription Agreement. THE FOREGOING STATES THE ENTIRE OBLIGATION OF UPMETRICS AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SUBSCRIPTION SERVICES. UpMetrics shall have no liability under this section to the extent that any third-party claims described herein are based on use of the Subscription Services in a manner that violates this Agreement or the instructions given to You by UpMetrics.
Indemnification by You. You shall defend (or settle), indemnify and hold harmless UpMetrics, its officers, directors and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with any third-party claim that: (i) a third party has suffered injury, damage or loss resulting from the use by You or by any Authorized User of the Subscription Services, or (ii) the Customer Data, or the use by You or by any Authorized User of the Subscription Services in violation of this Agreement, infringes or violates the Intellectual Property Rights or other proprietary rights of a third party. Your obligations under this section are contingent upon: (a) UpMetrics providing You with prompt written notice of such claim; (b) UpMetrics providing reasonable cooperation to You, at Your expense, in the defense and settlement of such claim; and (c) You having sole authority to defend or settle such claim.
15. Limitation of Liability
EXCEPT FOR LIABILITY ARISING FROM A BREACH OF THE “RESTRICTIONS” SECTION AND THE “ENFORCEMENT” SECTION, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL UPMETRICS’S AGGREGATE LIABILITY TO YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR ACCESS TO AND USE OF THE SUBSCRIPTION SERVICES EXCEED THE TOTAL FEES PAID BY YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
16. General
Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of California, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in the San Francisco County. You hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations affected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.
Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
Assignment. Neither party may assign this Agreement without prior written consent of the other party; provided, however that either party may assign this Agreement without the consent of the other party in connection with a merger, reorganization, acquisition, or sale of all or substantially all of the assets of the party seeking to assign this Agreement (or any similar change of control transaction), and provided that the surviving entity has agreed to be bound by this Agreement.
Entire Agreement. This Agreement together with the Subscription Agreement (if any) constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. Any modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. To the extent there is any conflict or inconsistency between the Subscription Agreement and this Agreement, the terms of the Subscription Agreement will govern.
Equitable Relief. You acknowledge that a breach by You of any confidentiality or proprietary rights provision of this Agreement may cause UpMetrics irreparable damage, for which the award of damages would not be adequate compensation. Consequently, UpMetrics may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of You (including your approved grantees) and UpMetrics and is not intended to benefit any other party.
Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.
Notice. UpMetrics may give notice to You by e-mail to Your e-mail address on record in UpMetrics’s account information. You may give notice to UpMetrics by sending an e-mail to legal@upmetrics.com.
17. Definitions
“Authorized User” means Your employees, consultants, contractors, customers or agents that have been assigned a unique username-password combination to access and use the Subscription Services, or who have otherwise been provided with access to your Account. “Customer Data” means user/customer/student data and information (including FERPA Records) input into the Subscription Services by You or any Authorized User or otherwise provided by You or any Authorized User to UpMetrics. “Effective Date” means the date first on record with UpMetrics for Your clicking the check box to accept this Agreement or the date of Your first accessing and using the Subscription Services. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
18. Contacting UpMetrics
If you have any questions about this Agreement, please contact UpMetrics at legal@upmetrics.com.
SportUp, Inc. dba UpMetrics
201 Spear Street, Suite 1100
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