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Client’s relationship with Firstup and Client’s use of Firstup’s products and services (including Client’s licensing of Firstup’s Platform and Client’s use of Services) are subject to the terms and conditions set forth herein and are between Client and Firstup. Capitalized terms are defined in Section 9 below, unless otherwise defined within the body of this Agreement, the applicable Product Attachment, or Schedule. In order to use the Products, Client must first agree to this Agreement. You represent and warrant that you have the necessary and full right, power, authority, and capability to accept this Agreement, to bind your organization, and to perform your and your organization’s obligations hereunder. You can enter into and “accept” this Agreement and any applicable Product Attachment(s) and Schedule(s), by: (a) clicking to accept or agree, where this option is made available to you by Firstup in the user interface for any Product; (b) where a link to the applicable document appears in an order form, Schedule, or other document provided to you by Firstup, by signing such document; or (c) signing the applicable document, if there is a designated area to sign. Client may not use the Products and you may not accept this Agreement if: (i) you are not authorized by your organization to enter into a binding contract with Firstup, or (ii) you or your organization are a person barred from receiving the Products under the laws of the U.S. or other countries, including the country in which you are a resident or from which you use the Products. Client may not use the Products if you do not accept this Agreement. By accepting this Agreement, Client agrees as follows:
1. Agreement Structure and Scope
1.1 General Terms and Incorporation of Product Terms. This Agreement establishes the general terms and conditions to which the parties have agreed to in order to facilitate the provision of Products.
1.2 Incorporation of Schedules. The parties may enter into Schedules from time to time by any of the methods specified in the Preamble. Each Schedule incorporates the terms of these General Terms and the applicable Product Attachment.
1.3 Incorporation of Third Party Terms; Third Party Products. Client’s use of Third Party Products may be subject to, and Client will comply with any applicable Third Party Terms that are presented to Client in connection with such use. Use of Third Party Products is at Client’s option and are not required for Client’s use of the Products. Any procurement by Client of such Third Party Products is solely between Client and the applicable third party provider. Firstup is not responsible for any aspect of such Third Party Products, and Client acknowledges and agrees that Firstup maintains no control over and disclaims any liability arising out of or from Third Party Products. For those Third Party Products which are licensed through a Schedule, Client agrees to treat Firstup the same as the provider of any such Third Party Products with respect to all rights and protections of such provider as set forth in the applicable Third Party Terms, including, without limitation, disclaimers of warranty, limitations of liability, and indemnification.
1.4 Affiliates. Client’s Affiliates may order Products and certain Third Party Products from Firstup (or one of Firstup’s Affiliates) by entering into a Schedule. In the event that a Client Affiliate enters into a Schedule with Firstup (or an Affiliate of Firstup), references in this Agreement to “Client” and “Firstup” will mean the respective entity that accepts (as described in the Preamble) the applicable Schedule. Each such Schedule will be deemed to be a separate agreement between those two parties and will bind the applicable parties to the terms and conditions of this Agreement. Any Affiliate of Client that enters into such Schedule will be deemed to be the “Client” as contemplated therein and in this Agreement. Users may include employees and contractors of Client or its Affiliates that have not signed a Schedule. However, other than usage rights, Affiliates are not otherwise granted any rights under this Agreement. Client agrees to be responsible and liable for the compliance of its Users and Affiliates with the terms and conditions of this Agreement.
2. Financial Terms
2.1 Fees; Payment Terms; Currency. Fees, currency, and payment terms are specified in the applicable Schedule. Unless otherwise specified in the Schedule, all amounts owed by Client are due from Client within 30 days from the date of the applicable invoice. Subject to Firstup’s reasonable discretion, past due fees may accrue interest at the lesser of 1% of the outstanding balance per month or the maximum amount permitted by applicable law. In the event of any non-payment or delay in paying a fee, Client agrees to reimburse Firstup for any reasonable fees and expenses incurred in its collection efforts. Payment of fees is under no circumstances subject to or conditioned upon the delivery of future Products or functionality outside of what is indicated on the applicable Schedule. Except as otherwise provided in a Schedule (e.g., a multi-year subscription), (i) Firstup may modify the fees once per calendar year upon 30 days’ notice, provided that any such increase will not exceed 10% over the then-current fees; and (ii) discounts or fee waivers are one-time only and apply only to the term specified in the applicable Schedule.
2.2 Taxes. All fees payable by Client are exclusive of Taxes. Client will pay all Taxes unless Client timely furnishes satisfactory proof of exemption. All Taxes will be invoiced based on the billing information provided by Client. Firstup’s failure to bill or invoice Client for such Taxes does not constitute a waiver of the right to collect such Taxes. All payments made by Client to Firstup under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required on any payment, Client will pay such additional amounts as are necessary so that the net amount received by Firstup is equal to the amount then due and payable under this Agreement. Firstup will provide Client with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.
3. Limited Rights and Ownership
3.1 Reservation of Rights. All rights not expressly granted in this Agreement are reserved by Firstup and its licensors. Unless otherwise expressly set forth in a Schedule, Client acknowledges that: (a) all Products are licensed and not sold; (b) Client acquires only the right to use the Products in accordance with this Agreement, and Firstup and/or its licensors will retain sole and exclusive ownership of and all rights, title, and interests in the Products; and (c) the Products, including the source and object codes, logic, and structure, contain and constitute valuable trade secrets of Firstup and its licensors. No work made for hire is or will be created by Firstup as part of this Agreement.
3.2 License. Subject to Client’s payment of the amounts due under the applicable Schedule and its compliance with this Agreement, Firstup hereby grants Client a perpetual, non-exclusive, non-transferable, non-sublicensable, right to access, use, modify, and copy the Deliverables for Client’s internal business purposes only.
3.3 Restrictions. Unless otherwise expressly set forth in a Product Attachment or Schedule, Client will not itself, or through any Affiliate, User, employee, consultant, contractor, agent, or other third party: (a) allow access to, provide, divulge, or make available the Products to any third parties other than Users; (b) write or develop any derivative works based upon the Products; (c) modify, adapt, translate, or otherwise make any changes to the Products or any part thereof; (d) remove any identification, patent, copyright, trademark, or other notices from any Product; (e) contest or do or aid others in contesting or doing anything which impairs the validity of any proprietary or Intellectual Property Rights, title, or interests of Firstup or its licensors in and to any Products; or (f) use the Products for other than authorized and legal purposes, consistent with all applicable laws, rules, regulations, and the rights of others, including those governing privacy and personal information.
4. Term, Termination, and Suspension
4.1 Term. The term of this Agreement will begin on the Effective Date and continue until all Schedules have expired or have been terminated. Unless otherwise set forth in the applicable Schedule, the term of the applicable Schedule will be as set forth in the applicable Product Attachment.
4.2 Termination. Either party may terminate this Agreement, including any or all Product Attachments and Schedules entered into hereunder, immediately upon written notice: (a) in the event that the other party commits a non-remediable material breach of this Agreement and/or the applicable Product Attachment or Schedule, or if the other party fails to cure any remediable material breach or provide a written plan of cure acceptable to the non-breaching party within 30 days of being notified in writing of such breach, except for breach of Section 2 of these General Terms which will have a 10 day cure period; or (b) in the event of institution of bankruptcy, receivership, insolvency, reorganization, or other similar proceedings by or against either party under any section or chapter of the U.S. Bankruptcy Code, as amended, or under any similar laws or statutes of the U.S. or any state thereof, if such proceedings have not been dismissed or discharged within 30 days after they are instituted; or the insolvency or making of an assignment for the benefit of creditors or the admittance by either party of any involuntary debts as they mature or the institution of any reorganization arrangement or other readjustment of debt plan of either party not involving the U.S. Bankruptcy Code. Where a party has the right to terminate this Agreement, such party may at its discretion either terminate the entire Agreement or the applicable Product Attachment or Schedule; provided however, that termination of a Product Attachment will automatically terminate all Schedules entered into pursuant to such Product Attachment. Product Attachments and Schedules that are not terminated will continue in full force and effect under the terms of these General Terms. Termination by either party for any reason, other than a termination by Client in accordance with Section 4.2(a), will neither result in a refund of fees paid, nor excuse Client’s obligation to pay in full any and all amounts due for the term of any Schedule.
4.3 Suspension. Upon advance notice (where practicable under the circumstances), Firstup may suspend its performance hereunder if: (a) it reasonably believes that Client’s use of the Services or Platform is not in compliance with applicable law or this Agreement, is fraudulent, has the potential to harm a third party, or is or could be disruptive to Firstup’s business; or (b) Client is delinquent in its payment obligations. During the term of any such suspension (i) Client remains responsible for all fees; and (ii) Client will not be entitled to any service credits under the SLA.
5.1 Non-Use and Non-Disclosure. Each party will: (a) treat as confidential all Confidential Information of the other party and use at least the same care to protect Confidential Information as it uses for its own similar information, but in no event less than a reasonable degree of care; (b) not disclose Confidential Information to any third party, except on a “need to know” basis to third parties that are subject to a non-disclosure agreement containing provisions substantially as protective of the Confidential Information as the terms of this Section, and such party so disclosing the Confidential Information to the third party is responsible and liable for that third party’s compliance with the confidentiality obligations set forth herein; and (c) not use that Confidential Information except in connection with performing its obligations or exercising its rights under this Agreement. Each party is permitted to disclose the other party’s Confidential Information if required by law, court order or regulatory body, so long as, to the extent legally permitted, the other party is given prompt written notice of that requirement before disclosure and reasonable assistance in obtaining an order protecting that information from public disclosure. To the extent that the receiving party must disclose Confidential Information pursuant to the previous sentence, any such disclosure will be limited to only that Confidential Information required to be disclosed to comply with the order of the relevant court or regulatory body.
5.2 Exceptions. Confidential Information will not include any information that: (a) was publicly known and made generally available before the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the lawful possession of the receiving party at the time of disclosure with no obligation to maintain its confidentiality; (d) is obtained by the receiving party from a third party on a non-confidential basis without a breach of that third party’s obligations of confidentiality; or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
6.1 Firstup Indemnity. Firstup will defend, indemnify, and hold Client harmless from and against any Claims against Client to the extent that such Claim is based upon the Products directly infringing a third party’s Intellectual Property Rights, provided that the Products are used in compliance with this Agreement.
6.2 Client Indemnity. Client will defend, indemnify, and hold Firstup harmless from and against any Claims against Firstup to the extent that such Claim is based upon (i) Client’s breach of Section 2.5 of the Platform Product Attachment; and/or (ii) Client’s use of Third Party Products.
6.3 Indemnification Procedures. The party seeking indemnification must (a) promptly notify the other party after learning of a Claim, provided that the failure to do so will not relieve the indemnifying party of its obligations hereunder except to the extent that it is prejudiced by such failure; (b) give the indemnifying party sole control of the defense and settlement of the Claim (provided that the indemnifying party may not settle any Claim unless it unconditionally releases the indemnified party); and (c) provide to the indemnifying party, at the indemnifying party’s reasonable cost, reasonable assistance in the defense or settlement of such Claim. The indemnified party may participate in its own defense at its own cost.
7. Warranties, Disclaimers and Limitation Of Liability
7.1 Firstup represents and warrants that (a) it has all necessary rights and authority to execute and deliver this Agreement and perform its obligations hereunder; (b) nothing contained in this Agreement or in the performance of this Agreement will place Firstup in breach of any other material contract or obligation; (c) the Platform will operate in conformity with the Documentation subject to the SLA; (d) Firstup will perform the Services in a professional and workmanlike manner with employees having a level of skill commensurate with the requirements of this Agreement; and (e) it will use commercially reasonable and industry standard methods to prevent the introduction of Malicious Code through the Platform.
7.2 EXCEPT AS OTHERWISE SET FORTH HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, CLIENT ACKNOWLEDGES AND AGREES THAT THE PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE WARRANTIES, IF ANY, SET FORTH HEREIN AND IN THE PRODUCT ATTACHMENTS ARE LIMITED TO THEIR EXPRESS TERMS AND ARE IN LIEU OF, AND FIRSTUP, ITS LICENSORS, AND SUPPLIERS EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY (a) WARRANTY THAT THE PRODUCTS ARE ERROR-FREE OR “BUG”-FREE, ACCURATE, SECURE, OR RELIABLE; (b) WARRANTY THAT THE PRODUCTS WILL OPERATE WITHOUT INTERRUPTION; (c) WARRANTY THAT ALL ERRORS WILL BE CORRECTED OR THAT CLIENT’S USE OF THE PRODUCTS WILL COMPLY WITH ANY LAW, RULE, OR REGULATION; (d) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT; (e) IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND (f) WARRANTY THAT THE PRODUCTS WILL MEET CLIENT’S REQUIREMENTS.
7.3 (a) EXCEPT AS SET FORTH IN SECTION 7.5 BELOW, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE FOR INDIRECT DAMAGES OR LOSSES (IN CONTRACT, STATUTE, TORT, OR OTHERWISE), INCLUDING INDIRECT DAMAGES OR LOSSES FOR NEGLIGENCE, LOST PROFITS OR REVENUE, LOST SAVINGS, COST OF REPLACEMENT SERVICES, LOST DATA, LOSS OF USE OF INFORMATION OR SERVICES, OR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES, WHETHER OR NOT IT HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (b) EXCEPT AS SET FORTH IN SECTIONS 7.4 AND 7.5 BELOW, EACH PARTY’S TOTAL AGGREGATE LIABILITY FOR ALL MATTERS ARISING FROM OR RELATED TO THIS AGREEMENT IS LIMITED TO THE AMOUNT OF SUBSCRIPTION FEES PAID OR PAYABLE BY CLIENT AS CONSIDERATION FOR THE SPECIFIC PRODUCT UNDER THE APPLICABLE SCHEDULE GIVING RISE TO SUCH CLAIMS DURING THE 12 MONTH PERIOD PRECEDING THE DATE ON WHICH THE FIRST CAUSE OF ACTION AROSE.
7.4 FOR ALL MATTERS ARISING FROM FIRSTUP’S BREACH OF ITS OBLIGATIONS UNDER SECTION 5 OF THESE GENERAL TERMS (“CONFIDENTIALITY”) OR SECTION 3 OF THE PLATFORM PRODUCT ATTACHMENT (“SECURITY, DATA PRIVACY, AND AUDIT”), THE TOTAL AGGREGATE LIABILITY OF FIRSTUP (INCLUDING ALL OTHER CLAIMS) IS ADJUSTED TO TWO TIMES (2X) THE AMOUNT OF FEES PAID OR PAYABLE BY CLIENT UNDER THE APPLICABLE SCHEDULE GIVING RISE TO SUCH CLAIMS DURING THE 12 MONTH PERIOD PRECEDING THE DATE ON WHICH THE FIRST CAUSE OF ACTION AROSE.
7.5 THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 7 WILL NOT APPLY TO LIABILITY OR DAMAGES ARISING OUT OF OR RELATING TO (a) FIRSTUP’S INDEMNIFICATION OBLIGATIONS RELATING TO THE INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS AS EXPRESSLY SET FORTH IN THIS AGREEMENT; (b) CLIENT’S INDEMNIFICATION OBLIGATIONS; (c) CLIENT’S BREACH OF ITS OBLIGATIONS UNDER SECTION 3.3 OF THESE GENERAL TERMS OR SECTIONS 2.4 OR 2.5 OF THE PLATFORM PRODUCT ATTACHMENT; (d) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (e) CLIENT’S PAYMENT OBLIGATIONS.
7.6 FOR THE PURPOSES OF THIS SECTION AND ANY INDEMNIFICATION PROTECTING FIRSTUP UNDER THIS AGREEMENT, REFERENCE TO FIRSTUP WILL ALSO INCLUDE ITS SUPPLIERS AND LICENSORS.
8. General Provisions
8.1 U.S. Government Restricted Rights. The Products are provided with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or subparagraphs (b)(1) and (2) of the Commercial Computer Software – Restricted Rights at 48 CFR 52.227-19, as applicable. The Manufacturer is Firstup, Inc. or one of its Affiliates or subsidiaries.
8.2 Feedback. Should Client choose to submit Feedback to Firstup, Client acknowledges and agrees that Client hereby grants to Firstup an irrevocable, transferable, worldwide, and perpetual license to use the Feedback for any purpose whatsoever, without any obligation of Firstup to Client, including any compensation or reimbursement of any kind from Firstup.
8.3 Force Majeure. Except for payment obligations for Products provided, neither party will incur any liability to the other party on account of any loss, claim, damage, or liability to the extent resulting from any delay or failure to perform all or any part of this Agreement, if and to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the reasonable control and without any negligence on the part of the party seeking protection under this Section, including internet service provider delays or failures, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquake, fire, or explosions. Dates by which performance obligations are scheduled to be met will be extended for a time equal to the time lost due to the delay so caused.
8.4 Enforcement. Client will (a) ensure that all users of Products comply with the terms and conditions of this Agreement; (b) promptly notify Firstup of any actual or suspected violation of this Agreement; and (c) cooperate with Firstup with respect to any investigation and enforcement of this Agreement.
8.5 Assignment. Except as expressly stated herein, neither party may assign or transfer (including by operation of law) any rights or obligations under this Agreement without the prior written consent of the other party, except that either party may, without such consent but upon written notice, assign or transfer this Agreement in its entirety to an Affiliate or in the event of an acquisition, merger, or other transfer of substantially all of its assets or ownership of more than 50% of the voting capital stock or other interest having voting rights with respect to the election of the board of directors or similar governing authority, provided that the applicable assignee is of at least equal creditworthiness to the assignor and agrees in writing to assume all of the assignor’s rights and obligations under this Agreement. Any assignment or transfer, or attempted assignment or transfer, in violation of this Agreement is void.
8.6 Export; Anti-Bribery. Client acknowledges that the Products are subject to Export Laws, and Client hereby represents and covenants that: (a) Client is eligible to access the Products under Export Laws and all other applicable laws; and (b) Client will import, export, re-export, transfer, or re-transfer the Products to, or use or access the Products in, any country or territory only in accordance with Export Laws and all other applicable laws. Furthermore, each party hereby represents and warrants that, in connection with its respective activities conducted under this Agreement, it will comply with the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act of 2010, as amended, and the Convention on Combating Bribery of Foreign Public Officials and has not and will not make or receive, directly or indirectly, any payments or gifts, or offers or promises of payments or gifts or things of value in exchange for anything that may arise out of this Agreement in a manner that would violate these laws and rules or any other applicable anti-corruption or anti-bribery laws or regulations.
8.7 Notices. Any notices required to be given under this Agreement will be in writing and sent to the physical or email address on file with Firstup for Client or, in the case of Firstup, to the address set forth in Section 9 of these General Terms to the attention of Legal Department or via email to firstname.lastname@example.org. Physical notices will be deemed received the next day if sent via overnight mail or courier with confirmation of receipt, or three (3) days after deposited in the mail sent certified or registered or via another reputable carrier with tracking.
8.8 Relationship. This Agreement is not intended to create a partnership, franchise, joint venture, agency, or a fiduciary or employment relationship. Neither party may bind the other party or act in a manner which expresses or implies a relationship other than that of independent contractor.
8.9 Severability. If any part or provision of this Agreement is held to be unenforceable, illegal, or invalid by a court of competent jurisdiction for any reason whatsoever, (a) the validity, legality, and enforceability of the remaining provisions of this Agreement (including all portions of any provisions containing any such unenforceable provision that are not themselves unenforceable) will not in any way be affected or impaired thereby, and (b) to the fullest extent possible, the unenforceable, illegal, or invalid provision will be deemed modified and replaced by a provision that approximates the intent and economic effect of the unenforceable, illegal, or invalid provision and this Agreement will be deemed amended accordingly.
8.10 Survival. The following provisions will survive any termination, cancellation, or expiration of this Agreement: Sections 1, 2, 3.2, 3.3, 4, 5, 6, 7, 8 and 9 of these General Terms, and such other provisions that should reasonably survive termination, cancellation, or expiration hereof.
8.11 Amendments; No Waiver. No amendment or waiver of any provision of this Agreement will be effective unless it is in writing and signed by the party against which it is sought to be enforced. The failure of a party to require performance of any provision of this Agreement shall in no manner affect its right to enforce the provision.
8.12 Entire Agreement. This Agreement constitutes the parties’ entire agreement relating to its subject matter. It cancels and supersedes all prior or contemporaneous oral or written communications, agreements, requests for proposals (or similar document), proposals, conditions, representations, and warranties, or other communication between the parties relating to its subject matter. All pre-printed, online, or click-through terms of any Client (a) purchase order, or (b) supplier or vendor portal will have no effect. Each party agrees that there have been no material representations or statements by any person or party to this Agreement as an inducement for a party hereto to accept this Agreement other than what is expressly set forth in writing herein.
8.13 No Third Party Beneficiaries. This Agreement is for the benefit of the parties and their successors and permitted assigns and does not confer any rights or benefits on any third party, including any employee of a party, any client of a party, or any employee of a client of a party.
8.14 Governing Law and Venue. This Agreement will be governed by the laws of the State of California, without giving effect to the conflict of law provisions thereof. The parties irrevocably agree that any legal action or proceeding relating to this Agreement will be instituted only in the state or federal courts located in San Francisco, California. Neither the United Nations Convention of Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement.
8.15 Order of Precedence. To the extent any terms and conditions of these General Terms conflict with the terms and conditions of any Product Attachment, the provisions of the Product Attachment will control. In the event of a conflict between a Schedule and these General Terms or the applicable Product Attachment, the General Terms or the applicable Product Attachment (as applicable) will control, provided, however, that such standard variable terms such as price, quantity, payment terms, and the like will be specified on each Schedule.
8.16 Interpretation. Any reference to a statutory provision includes a reference to any modification or re-enactment of it from time to time. The headings and pronouns contained herein are for convenience and ease of reference only and will not affect the construction or interpretation of this Agreement. The word “including” in this Agreement means “including, without limitation.” All references to days mean calendar days, unless specified as business days. This Agreement will not be construed in favor of or against a party based on the author of the document.
8.17 Counterparts. These General Terms and each Product Attachment, Schedule, and any exhibits thereto may be executed in one or more counterparts, each of which will constitute an enforceable original of this Agreement, and the parties agree that electronic or digital signatures, as well as pdf scanned copies of signatures, will be as effective and binding as original signatures.
8.18 Remedies Cumulative; Injunctive Relief. Except as specifically set forth in this Agreement, all rights and remedies provided in this Agreement are cumulative and not exclusive of any other rights or remedies that may be available to the parties, whether provided by law, equity, statute, in any other agreement between the parties or otherwise. Furthermore, in the event of a breach or threatened breach of the Intellectual Property Rights or confidentiality obligations in this Agreement, the non-breaching party, in addition to any and all other rights (at law or in equity) which may be available, will have the right to seek injunctive relief and other appropriate equitable remedies to restrain any such breach or threatened breach, without the requirement of posting a bond.
8.19 Insurance. Firstup will maintain the following minimum insurance coverage at its expense for the duration of the term of this Agreement: (a) Workers’ Compensation – as required by the statutes of states in which Services are being performed; (b) Comprehensive General Liability Insurance – $2,000,000 per occurrence/aggregate bodily injury and $2,000,000 per occurrence/aggregate property damage; and (c) Cyber/Tech Errors and Omissions Insurance – $5,000,000 per occurrence and in the aggregate. Firstup agrees to provide Client with a copy of its certificate(s) of insurance evidencing such coverage upon written request.
8.20 Publicity. If a Schedule includes a marketing discount or as otherwise mutually agreed by the parties, (a) Client will provide testimonials in the form of press releases, articles, video, or event-related communications to customers and prospects regarding its use of the Platform, which testimonials will be subject to Client’s approval; and (b) Firstup may use Client’s name and logo as part of Firstup’s standard customer lists and for marketing purposes.
“Affiliates” of a designated corporation, company, partnership, or other entity means all entities which control, are controlled by, or are under common control with the named entity, whether directly or through one or more intermediaries. For purposes of this definition “controlled” and “control” mean ownership of more than 50% of the voting capital stock or other interest having voting rights with respect to the election of the board of directors or similar governing authority.
“Agreement” means these General Terms, together with all Product Attachments and Schedules accepted by the parties (as described in the Preamble).
“Claims” means any third party claims, demands, causes of action, governmental actions, and/or proceedings (whether threatened, asserted, or filed).
“Client” means the business entity on behalf of whom this Agreement is accepted (as described in the Preamble).
“Confidential Information” means (a) any proprietary information of a party to this Agreement disclosed by one party to the other that is in written, graphic, machine readable, or other tangible form and is marked “Confidential” or “Proprietary” or in some other manner to indicate its confidential nature; and (b) a party’s non-public materials and all other non-public marketing or technical information, even if not marked as confidential, but that would reasonably be understood to be confidential. Confidential Information also includes oral disclosures if that information would reasonably be understood to be confidential from the context of disclosure.
“Deliverables” means any reports, analyses, templates, or other work product delivered by Firstup to Client as part of the Services as set forth in a Schedule or in connection with Client’s use of the Platform but excluding any portion thereof consisting of Client Content or the Platform.
“Documentation” means the user instructions, release notes, manuals, or on-line help files in the form generally made available by Firstup at support.firstup.io, regarding the use of the applicable Product, as updated by Firstup from time to time.
“Effective Date” with respect to this Agreement and any individual Schedule or Product Attachment means the date that Client accepts this Agreement or such individual Schedule or Product Attachment (as specified in the Preamble).
“Export Laws” means export control laws and regulations of the countries and/or territories in which Firstup operates or in which the Products are used, accessed, or from which the Products are provided.
“Feedback” means any idea, suggestion, feedback, and/or proposal provided by Client to Firstup related to the Products.
“Firstup” means Firstup, Inc., with a principal place of business at 1 Montgomery St. Ste. 2150, San Francisco, CA 94104, together with its Affiliates.
“General Terms” means this document, exclusive of Product Attachments and Schedules.
“Hardware” means computer hardware, equipment, and/or utilities.
“Intellectual Property Rights” means any and all intellectual property and proprietary rights (in whole or in part) recognized in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed, or recorded, including inventions, technology, patent rights (including patent applications, divisions, and disclosures), copyrights and all works of authorship (whether or not copyrightable), moral rights, trade secrets, trademarks and other indicators of source (and the goodwill associated therewith), service marks, trade dress, logos, methodologies, procedures, processes, know-how, tools, utilities, techniques, protocols, various concepts, ideas, methods, models, templates, software, source code, algorithms, tools, utilities, the generalized features of the structure, sequence and organization of software, user interfaces and screen designs, layouts, general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems, training methodology and materials, which a party has created, acquired, or otherwise has rights in, and in each case includes any derivative works, alterations, and other modifications using, incorporating, based on, or derived from the foregoing.
“Malicious Code” means virus, trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems, or software.
“Platform” means (a) the software as a service which is hosted by Firstup or its hosting providers and which is accessed by Client and its Users via the internet; and (b) associated services, as more fully described in the applicable Product Attachment.
“Platform Product Attachment” means the Product Attachment applicable to Client’s use of the Platform.
“Preamble” means the first paragraph of these General Terms.
“Product Attachment” means additional Product-specific terms and conditions set forth in one or more documents referenced in the applicable Schedule.
“Product(s)” means, collectively, the Platform, Services, and all other services, products, or materials provided by Firstup to Client under the terms of this Agreement, excluding Third Party Products, but including the following: (i) all Intellectual Property Rights embodied or associated with the Products, (ii) all reports templates and work product associated with the Products excluding any Client Content, and (iii) all copies and derivative works thereof.
“Professional Services” means the implementation, configuration, integration, and deployment of the Platform, project management, training, and other consulting services.
“Schedule” means the document, schedule, quote, pricing form, statement of work, web page, order form, change order, or similar document and the terms and conditions contained therein “accepted” (as described in the Preamble) by the parties that describes order-specific information, such as a description of Products ordered, term, features, options, license details, and fees, each of which will be subject to these General Terms and the applicable Product Attachment.
“Services” means, collectively, (a) Professional Services; (b) Support Services; and (c) any other services set forth in a Schedule.
“SLA” means service level agreement located at https://firstup.io/legal/platform-service-level-agreement/.
“Support Services” means the provision of technical assistance and any training for the Platform or Hardware as further described in an applicable Product Attachment and/or Schedule.
“Taxes” means any and all applicable taxes, including sales, use, excise, withholding, assessments, stamp, transfer, value-added, duties, tariffs, export charges, import charges, and other taxes or assessments (however designated) imposed by any foreign, federal, provincial, state, or local governmental authority upon or applicable to Products arising out of this Agreement, other than those based on Firstup’s net income.
“Third Party Products” means those services or products provided by a third party which may be made available for Client by Firstup or made available directly from a third party and which may be used in connection with Client’s use of the Products. The foregoing may include third-party software as a service, Hardware, firmware, and/or software products, including updates and enhancements thereto, if any.
“User” means an individual employee or contractor of Client or its Affiliates who has been invited by Client to create an account for use of the Platform or can be sent a communication through the Platform.