UPshow, Inc. Subscriber Agreement
(last updated: 10/30/2017)
1. UPSHOW, Inc. ("UPSHOW") and you ("Client") agree that the following terms and conditions will govern Client's license and use of UPSHOW's social media and spotlight marketing display advertising and venue messaging service (the "UPSHOW Service") and equipment for the streaming of content and social media from a media player.
2. GENERAL. UPSHOW and Client agree that Client’s retention of UPSHOW with respect to the Services as described further in paragraph 2 shall be subject to these terms and conditions, and these terms and conditions, together with any other documents entered into hereunder and/or otherwise referred to herein(collectively, the "Agreement") shall be the exclusive terms with respect thereto, and that the terms and conditions contained in the Agreement represent the final and complete contract between the parties the terms of which cannot be modified by either party except by an express written agreement signed by both parties.
3. UPSHOW Services
a. UPSHOW shall provide Client, and any of Client’s franchisees, with the following (the “UPSHOW Services”):
i. UPSHOW's social media and spotlight marketing display advertising and venue messaging service (the “UPSHOW Platform”);
ii. customer support to address any and all issues related to the use of the UPSHOW Services and Equipment, including installation, configuration, technical support, troubleshooting of use, service interruption support, and software and hardware updates, upgrades, and replacements, etc.
b. UPSHOW shall not be obligated to provide any services other than the UPSHOW Service unless expressly agreed to by UPSHOW and the Client in a separate written agreement.
c. UPSHOW will provide customer support to address any and all issues related to the use of the UPSHOW Service, including technical support, troubleshooting of use, service interruption, etc.
4. FEES AND EXPENSES; INVOICING; LATE PAYMENT; TAXES.
a. Client shall pay UPSHOW for the UPSHOW Service at the monthly rate agreed to in the UPshow Order Form filled out by Client contemporaneously with the execution of this agreement, which is incorporated herein via reference. Client shall pay UPSHOW (the "Subscription Fee") on the 1st day of the month that the Equipment (defined in section (b) below) is shipped (the “Commencement Date”). The Subscription Fee shall be exclusive of any applicable federal or state sales or use taxes. Client is solely responsible for paying all such taxes and government charges. To the extent the Commencement Date begins after the first of the month, the Subscription Fee shall be prorated accordingly. UPSHOW's Subscription Fee shall be incurred by the Client upon the Commencement Date without consideration as to whether Client elects to use the UPSHOW Service.
b. If Client receives equipment, which may include streaming media devices, display screens, mounts, converters, cords and adapters, collectively the "Equipment" pursuant to this Agreement, Client shall pay up front for the Equipment procured and provided by UPSHOW, rent or lease such equipment through UPSHOW, or UPSHOW will facilitate a financing arrangement with its affiliate lender partners. Client shall also pay for all fees related to the use of said Equipment, including installation fees, applicable taxes and shipping and fulfillment costs. The purchasing fees, rental fees, financing fees, installation fee and applicable taxes shall collectively be referred to herein as the "Equipment Fee". In the case where UPSHOW provides a rental or leasing arrangement for Equipment, UPSHOW will maintain title and ownership to all Equipment furnished as part of the services rendered. Client agrees to reimburse UPSHOW for the replacement value of all Equipment that is damaged, lost, stolen or broken. UPSHOW reserves the right to hold a security deposit for any and all equipment rented to Client as part of this Agreement. UPSHOW's applicable Equipment Fee shall be incurred by the Client upon the Commencement Date without consideration as to whether Client elects to use the UPSHOW Service. The Equipment Fee and Subscription Fee shall collectively be referred to herein as the Service Fee.
c. Client agrees to provide UPSHOW with complete and accurate billing and contact information and hereby authorizes UPSHOW to deduct the Service Fee and other charges against such billing sources. This information includes such Client’s legal company or individual name, street address, e-mail address, and name and telephone number of an authorized billing contact or credit card holder. Client agrees to update all billing and contact information within three (3) business days of any change to it. Client represents and warrants to UPSHOW that any credit card provided to UPSHOW is authorized by such Client individually or by Client's company for use by UPSHOW as provided herein and will not be rejected. If UPSHOW is unable for any reason to bill or process any credit card charges, UPSHOW will take commercially reasonable efforts to contact you and notify you to provide another credit card to UPSHOW; provided, however, that Client agrees that UPSHOW may suspend Client’s account during such time until Client provides another credit card and Client’s Service Fee and other charges incurred are processed and paid in full. Upon UPSHOW receiving the updated credit card information, Client acknowledges and agrees to be charged immediately for all past due amounts owed plus any and all applicable fees arising from the late payments.
d. If Client fails to pay the Service Fee on the first day of the month late charges of the greater of two percent (2%) per month or the maximum amount allowable under applicable law shall also become payable by Client to UPSHOW. In addition, any failure by Client to pay the Service Fee on the date due, it shall be deemed a material breach of this Agreement, justifying suspension of the performance of UPSHOW’s obligations under this Agreement, and will be sufficient cause for immediate termination of this Agreement by UPSHOW. Any such suspension shall not relieve Client from paying any past due fees plus late charges and, in the event of any collection enforcement, any costs associated with such collection, including without limitation legal costs, attorneys’ fees and expenses, court costs and collection agency fees.
5. LIMITED USE LICENSE; RESTRICTIONS.
a. UPSHOW hereby grants Client a limited, non-exclusive, non-transferable, non-assignable right to use the UPSHOW Service, all related equipment and all software, databases and proprietary data that makes up said services, subject to all the terms and conditions of this Agreement. All rights not expressly granted to Client are reserved by UPSHOW and its licensors.
b. Client shall not: use (including making any copies of) the UPSHOW Service beyond the scope of the license granted herein; make use of the UPSHOW Service on more than one device at a time, without prior purchases of additional licenses or prior agreement with UPSHOW; rent, lease, lend, sell, resell, sublicense, transfer, assign, share, publish, distribute, commercially exploit or make available the UPSHOW Service in any manner whatsoever, to any other third party, without prior consent from UPSHOW; modify, adapt, translate, create derivative works or improvements based upon any part of the UPSHOW Service other than what may be used in accordance with this License; reverse engineer, decompile, disassemble, copy, create derivative works, or otherwise modify the UPSHOW Service, any updates, or any part thereof, nor attempt to locate or obtain its source code; alter or remove any trademark, copyright or other proprietary notice of UPSHOW contained within the UPSHOW Service; use the UPSHOW Service for purposes of competitive analysis of the UPSHOW Service, the development of a competing software product or service or any other purpose that is to UPSHOW’s commercial disadvantage; build or create a competitive product or service using similar ideas, features, functions or graphics of the UPSHOW Service or copy any such ideas, features, functions or graphics of the UPSHOW Service; combine the UPSHOW Service or any part thereof with, or incorporate the UPSHOW Service or any part thereof, in any other software or programs; use the UPSHOW Service in violation of any foreign, federal, state or local law, regulation or rule; or make use of the UPSHOW Service in any manner not stipulated within this Agreement or the documentation accompanying the UPSHOW Service.
c. Client agrees not to use the UPSHOW Service to stream or show content that is defamatory, obscene, indecent, violently graphic, or discriminatory against any class of persons ("Undesirable Content"). Client understands that UPSHOW may be curating Content from third party sources, and Undesirable Content may be inadvertently displayed. UPSHOW is not responsible for, and will not be held liable for any Undesirable Content that is displayed. UPSHOW reserves the exclusive right to control any and all Content displayed by the UPSHOW Service. UPSHOW reserves the right to display sponsor-able content, content for promotions or advertising campaigns from time to time in the future. For purposes of this Agreement, “Content” means the audio and visual information, graphics, text, images, music, software and documents made available in the course of using the UPSHOW Service.
d. Client hereby grants to UPSHOW a non-exclusive, worldwide, royalty-free license for the Term (as hereinafter defined) to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display and otherwise use any and all of client’s trademark, copyright, social media platforms (i.e. facebook, twitter, instagram, linkedin, etc.) or other information and material ("Client Content") that is used, displayed, or promoted through the UPSHOW Service.
e. Client assumes sole responsibility for the accuracy of any Client Content displayed on the UPSHOW Service. Client represents, warrants and agrees that any Client Content used will: (a) not be misleading to the general public or otherwise contain any information that is false, inaccurate, fraudulent, or deceptive; (b) not be unlawful, harmful, threatening, malicious, abusive, harassing, tortuous, defamatory, vulgar, obscene, pornographic, sexually explicit, libelous, indecent, intimidating, invasive of another’s privacy, hateful, or sexually, racially, culturally, ethnically or otherwise objectionably; (c) not impersonate anyone else or falsely represent Client’s affiliation with any person or entity; (d) not contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) consist solely of content that Client has the full and complete right to post and transmit, both legally and contractually; (f) not infringe on any patent, trademark, trade secret, copyright or other proprietary, contract, moral, privacy, or other rights of any person or entity; (g) not promote any illegal activity; and (h) not intentionally or unintentionally violate any applicable law or regulations or otherwise expose UPSHOW to civil or criminal liability. Client is solely responsible for ensuring that Client Content does not, and will not violate any requirements of this Agreement or any rights of any third party. Client acknowledges that, with respect to any Client Content, UPSHOW is acting solely as a channel for distribution and does not undertake any obligation or liability relating to any Client Content.
6. PROPRIETARY RIGHTS.
a. All materials, including but not limited to any computer software (whether in object code or source code form), script, programming code, data, information or HTML script developed or provided by UPSHOW under this Agreement, and any trade secrets, know-how, methodologies, and processes related to UPSHOW’s provision of Services, and including without limitation all copyrights, trademarks, service marks, patents, trade secrets and other proprietary rights inherent therein and appurtenant thereto, together with any enhancements thereto and improvements thereof (collectively, "UPSHOW Materials"), shall be and remain the sole and exclusive property of UPSHOW. To the extent, if any, that ownership of the UPSHOW Materials does not automatically vest in UPSHOW by virtue of this Agreement or otherwise, Client hereby transfers and assigns to UPSHOW all right, title and interest that Client may have in and to any UPSHOW Materials.
b. Client acknowledges and agrees that Client shall have no rights with respect to the UPSHOW Materials. Client agrees that it will not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from transfer or sell any UPSHOW Materials or any information, software, lists of users, databases, or other lists, products or services provided or obtained through any UPSHOW Materials. In no event shall Client use any trademark, service mark, trade secret, copyright or other proprietary right of UPSHOW without UPSHOW’s prior written consent, which consent may be given or withheld in the sole discretion of UPSHOW.
a. UPSHOW may, directly or indirectly, through the services of others, collect and store information regarding use of the UPSHOW service and about equipment on which the UPSHOW Service is installed or through which it otherwise is accessed and used. You agree that UPSHOW may use such information for any purpose related to any use of the UPSHOW Service by Client, including but not limited to, (i) improving the performance of the UPSHOW Service or developing upgrades; and (ii) verifying compliance with the terms of this Agreement and enforcing UPSHOW's rights, including all Intellectual Property Rights in and to the UPSHOW Service.
a. Client agrees that during the course of this Agreement, information that it may have access to UPSHOW's confidential or proprietary information, including without limitation software (in both source code and object code form), processes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections and marketing data ("Confidential Information"). Confidential Information shall not include information that the receiving party can demonstrate: (a) is, as of the time of its disclosure, or thereafter becomes, part of the public domain through a source other than the UPSHOW; (b) was known to the Client as of the time of its disclosure; (c) is independently developed by the Client; or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing party. Client agrees that, except as permitted by this Agreement, it shall not make any disclosure of the Confidential Information other than to its employees who have a need to know such information in connection with this Agreement, which employees shall be notified of the confidentiality obligations with respect to the Confidential Information. The confidentiality obligations of Client and its respective employees shall survive the expiration or termination of this Agreement.
b. Client recognizes and acknowledges the competitive value of UPSHOW’s Confidential Information. Client further acknowledges that substantial damages would result if the Confidential Information was impermissibly disclosed by the Client or its employees to any third party or impermissibly used by a third party after receiving it from the Client in violation of this Agreement. In addition, Client acknowledges the special and unique value of the Confidential Information and hereby acknowledges and agrees that in the event Client breaches this Agreement, Client shall be entitled to, in addition to and not to the exclusion of any other available remedy, immediate temporary, preliminary and/or permanent injunctive relief.
9. CLIENT REPRESENTATIONS AND WARRANTIES.
a. Client represents and warrants that it has the legal power and authority to enter into this Agreement (including on behalf of the business entity for which the signatory is an agent, employee or representative). Client represents and warrants that it has not falsely identified itself nor provided any false information to gain access to the UPSHOW Service and that Client's credit card and billing information is complete and accurate.
b. Client represents and warrants that it shall: (i) notify UPSHOW immediately of any unauthorized use of any password or account or any other known breach of security with respect to such passwords and accounts; (ii) report to UPSHOW immediately and use reasonable efforts to stop immediately any unauthorized copying or distribution of Content that is known or suspected by Client; and (iii) not impersonate another user or provide false identity information to gain access to or use the UPSHOW Service.
10. DISCLAIMER OF WARRANTY
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, UPSHOW AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SOFTWARE OR ANY EQUIPMENT USED IN CONNECTION WITH THE SOFTWARE ("EQUIPMENT"). UPSHOW AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SOFTWARE OR EQUIPMENT WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SOFTWARE OR EQUIPMENT WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CLIENT THROUGH THE SOFTWARE OR EQUIPMENT WILL MEET CLIENT'S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, (F) THE ADDITIONAL COSTS INCURRED TO USE THE SOFTWARE OR EQUIPMENT WILL NOT EXCEED A CERTAIN AMOUNT OF MONEY, OR (G) THE SOFTWARE, EQUIPMENT OR THE SERVER(S) THAT MAKE THE SOFTWARE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SOFTWARE AND EQUIPMENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-FRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY UPSHOW AND ITS LICENSORS.
11. INDEMNIFICATION. Each party (the “Indemnifying Party”) agrees to indemnify, defend, and hold harmless the other party, its directors, officers, employees, agents and any other of such other party’s representatives (the “Indemnified Party”), and to defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including attorneys’ fees (a “Claim”), to the extent that such Claim: (i) relates to any inaccuracy in or breach of any of the Indemnifying Party’s representations, warranties, or agreements hereunder; or (ii) otherwise arises out of the negligence or willful misconduct of the Indemnifying Party.
12. LIMITATION OF LIABILITY. UPSHOW SHALL HAVE NO LIABILITY TO CLIENT UNDER THIS AGREEMENT OR OTHERWISE FOR ANY LOSS OR INJURIES TO EARNINGS, PROFITS OR GOODWILL , OR FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES OF ANY PERSON OR ENTITY, EVEN IF UPSHOW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF UPSHOW TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO ONE HUNDRED PERCENT (100%) OF THE AMOUNT ACTUALLY PAID TO UPSHOW BY CLIENT UNDER THIS AGREEMENT. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. CLIENT ACKNOWLEDGES THAT WITHOUT THESE LIMITATIONS IT WOULD PAY A HIGHER FEE FOR THE SERVICES TO BE PROVIDED HEREUNDER, AND ACKNOWLEDGES THAT THE LIMITATIONS SET FORTH HEREIN SHALL APPLY EVEN IF OTHER REMEDIES AVAILABLE TO CLIENT FAIL OF THEIR ESSENTIAL PURPOSE.
a. The Agreement between the parties with respect to the provision of Services shall remain in effect for twelve (12) months beginning on the date that the Equipment is shipped from UPSHOW and will continue unless and until terminated as permitted herein. Thereafter, this Agreement shall renew automatically for an additional TWELVE MONTHS unless either party shall provide the other party with notice of its intention not to renew at least sixty (60) days prior to the end of the then current term.
b. Either party may terminate this Agreement upon notice to the other party if the other party materially breaches any of its representations, warranties, or agreements under this Agreement, and such breach is not cured with ten (10) days of receipt of notice specifying such breach, provided however that such cure period shall not apply to any failure of Client to comply with its payment obligations set forth herein.
d. Upon any termination or expiration of the Term, Client shall immediately pay to UPSHOW all unpaid and outstanding fees and expenses through the effective date of such termination or expiration.
e. UPSHOW reserves the right to suspend or terminate any use of the UPSHOW Service by Client for any breach of this Agreement or unauthorized use of the UPSHOW Service. If Client's right to use the UPSHOW Service is suspended or terminated for any reason, Client’s license to use the UPSHOW Service immediately terminates without any notice being given to Client. However, all provisions of this Agreement, with the exception of the UPSHOW’s license grant to Clint, shall remain in full force and effect and shall survive termination. Upon termination of UPSHOW’s license grant to Client, Client shall destroy any and all copies of the UPSHOW intellectual property that it has in its possession.
g. In the event client defaults in any of its obligations, UPSHOW may immediately retake possession of the Equipment without further notice to Client and without legal proceedings, and Client hereby authorizes and empowers UPSHOW to enter Client’s premises or any other place where such Equipment shall be located, and to retake and carry away the same.
14. PERFORMANCE. UPSHOW shall not be responsible for non-performance or delays occasioned by any cause beyond UPSHOW's reasonable control, including, but not limited to, labor difficulties, delays of vendors or carriers, fires, governmental actions and material shortages, including, without limitation, any delay, downtime, malfunction or other outages of any Social Networking Websites.
15. SEVERABILITY. Each condition is a separate covenant and the invalidation of any provision, by a court or otherwise, shall not effect the other terms and conditions in this Agreement.
16. APPLICABLE LAW. This Agreement shall be governed by the laws of the State of Illinois without regard to its conflict of laws provisions, and Client and UPSHOW agree that the sole venue and jurisdiction for disputes arising from this Agreement shall be the appropriate state or federal court located in the City of Chicago, Illinois, and Client and UPSHOW hereby submit to the jurisdiction of such courts.
17. NOTICES. Any notice provided pursuant to this Agreement shall be in writing and shall be provided by hand delivery (which shall be deemed given upon receipt), U.S. mail (which shall be deemed given three (3) days after deposit in the mails, postage prepaid, certified mail, return receipt requested), facsimile or email (which shall be deemed delivered upon electronic confirmation thereof) or by next day delivery service (which shall be deemed delivered upon such delivery). All notices shall be delivered to the other party at the address set forth on the signature lines hereto, or at such other address as either party may in the future specify in writing to the other.
18. ATTORNEY'S FEES. If either party fails to perform according to the terms and conditions herein, the non-prevailing party shall be liable for all necessary costs, including reasonable attorney fees, incurred by the other party to enforce this Agreement. The parties’ rights and remedies under this Agreement are cumulative. The exercise of any one or more thereof shall not exclude nor preclude a party from exercising any other right or remedy.
19. WAIVER. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.
20. SURVIVAL. All provisions of this Agreement relating to Client warranties, confidentiality, non-disclosure, proprietary rights, limitation of liability, Client indemnification obligations and payment obligations shall survive any termination or expiration of this Agreement.