Terms

upfrog.com (https://upfrog.com/), upfrog.io (https://upfrog.io)  including all of its related applications, dashboards or platforms (individually and collectively, the “Website”), is owned and operated by UpFrog LLC. (“UpFrog”, “ReFrog”, “we” or “us”). By using, installing or accessing the Website or Services (as defined below), by signing or clicking to accept these terms or any Subscription Documentation (as defined below) referencing these terms, you agree to be bound by the following terms and conditions including UpFrog’s Privacy Policy (https://live.upfrog.io/privacy) (together, these “Terms”, or this “Agreement”).

If you are using a UpFrog Service on behalf of a company or other entity, then “Client” or “you” means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Client is an entity, this Agreement is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement.

This Agreement includes and hereby incorporates by reference any Subscription Documentation executed between you and UpFrog, as well as any policies or exhibits linked to or referenced herein. If you have entered into a separate written agreement with UpFrog concerning specific Services, the terms of such agreement control if there is any conflict between the terms of such agreement and these Terms. Please note that we may modify this Agreement as described in Section 14.8 below.

1. DEFINITIONS.

1.1. “Confidential Information” means code, inventions, know-how, product plans, technical and financial, business, operational, or other information exchanged under this Agreement or learned during the performance of this Agreement, or that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.

1.2. “Territory” means the United States, Canada, and Australia, unless otherwise expressly set forth in Client’s Subscription Documentation.

Other terms are defined in other Sections of this Agreement.

2. SERVICES.

2.1. Services. UpFrog provides a proprietary multi-product platform that includes without limitation, reputation management tools ("Reviews" and "Feedback") messaging, and communication tools ("Inbox," "Webchat," "Videochat," "Teamchat," "Automations", "Voice," and "Campaigns"), payment processing ("Payments"), certain Free Access Subscription or Beta Releases (as defined below), and any other services UpFrog may offer from time to time (together with the Website, the “Service(s)”). Client will, from time to time, enter into a proposal, quote, services/purchase agreement, order form, statement of work, or otherwise click to accept or agree to an online registration form, which references this Agreement (“Subscription Documentation”) and details the Services ordered from UpFrog and, if applicable, the usage limits or other scope of use descriptions for the Services (including without limitation, any usage or volume limits, numerical limits on Authorized Users, and descriptions of product feature levels) (the “Scope of Use”). Client may be provided the option to purchase certain Services as part of a package or bundle offer (each, a “Bundle”), as detailed in the applicable Subscription Documentation. UpFrog has no obligation to provide any services or perform any tasks not specifically set forth in this Agreement (including any applicable Subscription Documentation).

2.2. Alteration of Subscription Documentation. Any amendments or modification to any existing Subscription Documentation must be in writing by the parties. UpFrog has no obligation to perform any Services under the amended Subscription Documentation until the parties have agreed to the effect of such changes on the applicable Fees.

2.3. Modification of the Services. UpFrog reserves the right to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Services), or to alter the offering of the Services (including by adding, limiting or discontinuing certain Bundle offers) temporarily or permanently. UpFrog also reserves the right to replace certain Services and Bundles with functionally equivalent Services or Bundles, at its sole discretion. In the event UpFrog makes any modification or alteration to the Services or the offering thereof that has a material adverse effect on the functionality of the Services ordered under your Subscription Documentation, Client may terminate this Agreement and receive a pro-rated refund of pre-paid unused Fees for the remainder of Client’s Subscription Term (as defined below).

2.4. Additional Terms. Client’s use of certain Services may be subject to additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that we may post on or link to from the Services (the “Additional Terms”). For example, if you elect to use UpFrog Payments, your use will be subject to additional UpFrog Payment Terms. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.

3. USE RIGHTS; RESTRICTIONS.

3.1. Use of Services. Subject to all terms and conditions of this Agreement, including any Additional Terms, UpFrog grants Client a non-exclusive, non-transferable, non-sublicensable, revocable, limited right and license during the applicable Subscription Term and within the Territory (to the extent available in the Territory) to: (a) install and use an object code copy of any mobile application associated with the Services; and (b) access and use the Services designated on Client’s Subscription Documentation solely for Client’s internal business purposes, but only in accordance with this Agreement, UpFrog’s Acceptable Use Policy (“Acceptable Use Policy”), the applicable Subscription Documentation, and all applicable Scope of Use descriptions. Although the Services may be accessible worldwide, UpFrog makes no representation that the Services are appropriate or available for use in locations outside the Territory (or that all products or features of the Services are available throughout the Territory). Furthermore, accessing the Services from territories where their content or use is illegal is prohibited. Those who choose to access the Services from other locations do so at their own initiative and are responsible for compliance with local laws and any costs associated with access or use outside the Territory. You may not use or export the Services in violation of U.S. export laws and regulations.

3.2. Account Registration. Client will register for a UpFrog account in order to access or receive the Services. Account information must be accurate, current and complete, and will be governed by UpFrog’s Privacy Policy (currently available at https://live.upfrog.io/privacy) as may be amended from time to time. Client agrees to keep its account information up to date so that UpFrog may send notices, statements and other information by email or through Client’s account. By using or accessing the Website, Client agrees and consents to UpFrog’s use of cookies in accordance with the terms of UpFrog’s Privacy Policy. You are solely responsible for all use of the Services account. UpFrog will not be liable for any loss or damage arising from unauthorized use of Client's account.

3.3. Eligibility and Use by Others. By agreeing to these Terms, Client warrants that it and its employees and contractors whom Client has authorized to access the Services on its behalf (“Authorized Users”): (a) are over 18 years old; (b) have not previously been suspended or removed from the Services; and (c) will comply with all applicable laws when using the Services. Client may permit its Authorized Users to use the Services provided their use is for Client’s benefit only and remains in compliance with this Agreement. Authorized Users are and will be subject to the applicable terms and conditions of this Agreement which may be communicated by posting to the Website or on a click- through basis to Authorized Users upon access to the Services and/or Website.

3.4. Responsibility for Authorized Users. Client will be responsible and liable for all Authorized Users’ use and access and their compliance with the terms and conditions herein. Client will be solely responsible for authorizing and creating user IDs, passwords and other access credentials for Authorized Users. Client is solely responsible for determining its Authorized Users and restricting and/or terminating the rights of such users during the Subscription Term, as Client deems appropriate. Provided, however, UpFrog may, in its sole discretion, suspend any Authorized User’s access to the Services. Client is solely responsible for ensuring that any user IDs, passwords and other access credentials (such as API tokens) for the Services are kept strictly confidential and not shared with any unAuthorized person. Additionally, Client is solely responsible for complying, and ensuring its Authorized Users comply, with all laws applicable to Client. Client will be solely responsible for any and all actions taken using its and its Authorized Users’ accounts, passwords or access credentials. Client must notify UpFrog within twenty-four (24) hours of any breach of security or unAuthorized use of its account. Use by all Authorized Users in aggregate will count towards any applicable Scope of Use restrictions.

3.5. Use by Customers. Any person that is a client, customer, or patient of Client, or that is a potential client, customer or patient of Client (“Customer(s)”) who accesses and/or uses the Services, including via Client’s website, are subject to the Acceptable Use Policy and such other terms as may be provided by UpFrog from time to time, which includes UpFrog’s right to remove or disable access to any Customer or content or resource that violates the Acceptable Use Policy.

3.6. General Restrictions. Client must not (and must not allow any third party to): (a) rent, lease, copy, transfer, sublicense or provide access to the UpFrog Technology (as defined below)to a third party (except Authorized Users as specifically Authorized above); (b) incorporate the UpFrog Technology (or any portion thereof) into, or use it with or to provide, any site, product or service; (c) use the UpFrog Technology (or any portion thereof) for time-sharing purposes or for a third party’s benefit; (d) publicly disseminate information regarding the performance of the UpFrog Technology (which is deemed UpFrog’s Confidential Information); (e) modify or create a derivative work of the UpFrog Technology or any portion thereof; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any UpFrog Technology or Services, except to the extent expressly permitted by applicable law and then only upon advance notice to UpFrog; (g) break or circumvent any security measures or rate limits for Services; (h) distribute any portion of the UpFrog Technology other than as specifically permitted above; (i) use the Service in violation of the Acceptable Use Policy; or (j) remove or obscure any proprietary or other notices contained in the UpFrog Technology including in any reports or output obtained from the UpFrog Technology.

3.7. Beta Releases and Free Access Subscriptions. Subject to Client’s compliance with the terms of this Agreement, UpFrog may provide Client with certain Services for free or on a trial basis (a “Free Access Subscription”) or with “alpha”, “beta” or other early-stage Services, integrations or features (“Beta Releases”) for the Subscription Term set forth in the applicable Subscription Documentation (if applicable). This Section and any relevant Additional Terms will apply to any Free Access Subscription or Beta Release (even if a Beta Release is provided for a fee or counts towards Client’s Scope of Use allocations) and supersedes any contrary provision in this Agreement. For the avoidance of doubt, Section 6 (Availability of Services; Support) will not apply to any Free Access Subscription or Beta Releases. UpFrog may use good faith efforts in its discretion to assist Client with Free Access Subscriptions or Beta Releases. Subject to section 12 and without limiting the other disclaimers and limitations in this Agreement, TO THE EXTENT PERMITTED BY APPLICABLE LAW, CLIENT AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS AND OTHER PROBLEMS FOR WHICH UPFROG WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT CLIENT’S SOLE RISK. You may choose to use Beta Releases in your sole discretion. UpFrog makes no guarantees or promises with respect to the continued availability of any Free Access Subscriptions or Beta Releases or that future versions of a Beta Release will be released or will be available under the same commercial or other terms. UpFrog may discontinue Beta Releases at any time, in our sole discretion, and decide not to make a Beta Releases generally available. Notwithstanding anything to the contrary herein, UpFrog may terminate Client’s right to use any Free Access Subscription or Beta Release at any time and with reasonable notice for any reason or no reason in UpFrog’s sole discretion, without liability.

4. CLIENT DATA.

4.1. Rights in Client Data. As between the parties, Client retains all right, title and interest (including any intellectual property rights) in and to any text, images or other content and data that Client selects or submits for use or incorporation with the Services (including without limitation, chat and message logs, Customer Data, or any Third-Party Content) (“Client Data”). “Customer Data” means data related to the identity, characteristics and activities of Customers, collected or submitted to the Services by Client or captured by the Services. “Third-Party Content” means content, data or other materials that Client provides to the UpFrog Services from its third-party data providers, including through Third-Party Products (as defined below) used by Client. Client hereby grants UpFrog a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify and create derivative works of the Client Data solely to the extent necessary to provide the Services and related services to Client and as otherwise provided herein. Client further instructs UpFrog to use and disclose Client Data and Customer Data as necessary to (a) provide the Services consistent with this Agreement and UpFrog’s Privacy Policy, including detecting, investigating, and preventing security incidents, spam, fraud, or unlawful use of the Services, and (b) respond to Client’s inquiries or any technical problems and ensure the Services are working properly.

4.2. Aggregate/Anonymous Data. Client agrees that UpFrog will have the right to generate usage data from Client use of the Services and may aggregate anonymized Client Data (“Aggregate/Anonymous Data”). Notwithstanding anything to the contrary herein, the parties agree that Aggregate/Anonymous Data is UpFrog Technology, which UpFrog may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve UpFrog’s products and services and to create and distribute reports and other materials). UpFrog will not distribute Aggregate/Anonymous Data in a manner that personally identifies Client or its Customers, or that would otherwise violate applicable laws.

4.3. Monitoring. Client understands and agrees that UpFrog, and any third-party platform(s) Client uses or accesses in connection with the Services, may monitor and analyze Client Data submitted by Client (including but not limited to reviews, surveys, messages, chats, etc.) to improve the Website, Services or third-party platform; to improve Client’s experience using the Website, Services or third-party platform; to customize and communicate informational or product offerings and promotions to Client; and/or to make the Website, Services, or third-party platform more helpful or useful to Client and other users.

4.4. Security. UpFrog agrees to maintain physical, technical and organizational measures designed, in its discretion, to secure its systems from unAuthorized access, use or disclosure. UpFrog takes no responsibility and assumes no liability for any Client Data other than its express security obligations in this Section.

4.5. Storage. UpFrog does not provide an archiving service. During the Subscription Term, Client acknowledges that UpFrog may delete Client Data no longer in active use. UpFrog expressly disclaims all other obligations with respect to storage.

5. CLIENT OBLIGATIONS.

5.1. Warranty. Client warrants and represents that it is in full compliance with all applicable local, state, territory, federal and international laws, rules and regulations and that Client will not use the Services in a manner that would violate or cause UpFrog to violate any obligation with respect to any such laws, rules or regulations, or amendments. Client also warrants and represents that (a) Client has sole ownership of any Client Data it provides to UpFrog, or otherwise has legal rights to provide such Client Data, and Client Data and UpFrog’s use thereof will not violate third-party rights, including intellectual property, privacy and publicity rights;; (b) UpFrog’s possession and/or use of the Client Data on Client’s behalf in connection with the Services, as contemplated hereunder, will not violate any contract, statute, or regulation; (c) any Client Data that Client and/or Client’s Authorized representative(s) submit for publication on an online review or ratings website as a provider of goods or services will be true and accurate, not be misleading, be transparent in disclosing commercial relationships and incentives or otherwise does not breach the Competition and Consumer Act 2010 (Cth), is the original work of Client‘s or their (as applicable) authorship, and will only concern Client or the goods and/or services that Client provides; (d) Client is Authorized to provide UpFrog with any Customer, Client or Authorized User information it provides in connection with the Services, including any personally identifying information; and (e) Client and/or Client’s Authorized representative(s) will only use the Services for interaction with actual Customers. If Client receives any take-down requests or infringement notices related to Client Data or its use of Third-Party Products, it will promptly stop using these items with the Services and notify UpFrog immediately. Additionally, if an integration is included in the Services Client orders, Client grants UpFrog the right to access Client’s Information or CRM system directly or through a third-party service for the purposes of fulfilling UpFrog’s obligations under this Agreement, and Client warrants that Client is not restricted by law or applicable agreement from granting UpFrog such right. UpFrog will not be held liable for any consequences of false, misleading and/or inaccurate content published to an online review or ratings website through UpFrog by Client or its Authorized Users.

5.2. Customer Consent; Intended Use of the Services. Client understands and agrees that the Services are intended to allow Client to send electronic communication, including but not limited to text messages, only to Client’s own current Customers who have consented to the receipt of such communications and are provided with necessary notices in accordance with applicable law and regulations. Client also understands and agrees that the Services are intended primarily to be used to send transactional and/or informational messages, not advertisements, marketing, telemarketing, or promotional messages, as such are defined in applicable laws, rules, and regulations (hereinafter, collectively “Marketing”), and that Client may use the Services to send Marketing messages only via UpFrog Campaigns. Accordingly, Client will for the duration of the Subscription Term: (a) provide all required disclosures to Customers and obtain all required consents and/or authorisations from Customers, based on applicable laws, prior to utilizing the Services; (b) obtain all necessary rights, releases and consents to allow Client Data to be collected, used and disclosed in the manner contemplated by this Agreement and to grant UpFrog the rights herein; and (c) send Marketing messages through UpFrog only via UpFrog Campaigns and only in compliance with all local, state, national and international laws, regulations and industry-specific best practices, including but not limited to Do Not Call rules and prohibitions. Client agrees and acknowledges that Client is solely responsible for its compliance with applicable law and regulations and must not rely on the Services for any such compliance. Use of the Services does not guarantee compliance with applicable law or regulation and UpFrog expressly disclaims any liability for Client’s non-compliance. UpFrog reserves the right to suspend or terminate Client’s access to the Services or the messaging feature if UpFrog believes, in its discretion, that Client has violated this Section 5.

6. AVAILABILITY OF SERVICES; SUPPORT.

6.1. Availability. Subject to the terms of this Agreement and any scheduled maintenance and unavailability caused by: (a) actions or omissions of Client; (b) failures, errors or defects in the facilities, hardware, software or network of Client; or (c) circumstances that constitute a force majeure event or that are beyond UpFrog’s reasonable control, UpFrog will make available access to the Services during the Term of this Agreement.

6.2. Support. UpFrog makes available web-based support through the Website. Additional support services may be available to Client subject to payment of applicable fees (if any), as specified in any applicable Subscription Documentation. Any support services are subject to this Agreement and UpFrog’s applicable support policies. UpFrog may also provide onboarding, deployment and other services under this Agreement. The scope, pricing and other terms for these additional services will be set forth in the applicable Subscription Documentation. UpFrog’s ability to deliver the Services will depend on Client’s reasonable and timely cooperation and the accuracy and completeness of any information from Client needed to deliver the Services.

7. FEES AND PAYMENT.

7.1. Fees. Unless otherwise specified on the applicable Subscription Documentation, the Services are provided on an ongoing, per license subscription-basis including automatically recurring payments for periodic charges, according to the terms and conditions referenced in the Subscription Documentation (“Subscription”). Client agrees to pay to UpFrog the fees for the Subscription to the Services or any Bundle (“Subscription Fees”) and any additional fees, if applicable, all as set forth in the applicable Subscription Documentation (collectively, the “Fees”). Except as otherwise specified in the applicable Subscription documentation, unless Client terminates a Free Access Subscription prior to the lapse of the Free Access Subscription term, such Services will convert to a paid Subscription and Client agrees to pay UpFrog the applicable Subscription Fees according to the terms of this Agreement. Unless otherwise specified in the applicable Subscription Documentation, payment for all Fees is due within thirty (30) days of the invoice date.

7.2. Payment of Fees. Unless otherwise specified in the applicable Subscription Documentation, all Fees will be paid annually, in advance, though overage fees (if any) may be charged in arrears. Fees are non-refundable, non-creditable and payment obligations non-cancellable, except as expressly set forth in Sections 2.3 (Modification of the Services) and 8.3 (Termination for Cause). If Client has elected to pay via credit card, ACH, direct debit, etc., Client acknowledges and authorizes UpFrog to charge Fees and other amounts automatically, on an auto-renew basis of your Subscription Start Date (as defined below) for each subsequent Subscription Term. For the avoidance of doubt, all additional Subscription Fees for additional Services accessed by Client will be billed when the Service is first accessed by Client and automatically, on an auto-review basis on Client’s existing Subscription Start Date. UpFrog may from time to time provide notice to Client regarding any Renewal Term(s) and the auto-renew processes including an opportunity to renew or opt out of the automatic renewal. Should UpFrog be unable to process/receive the Fees when due and owing, payment will be considered overdue. Client must pay interest to UpFrog on any amount that is due and payable but unpaid to UpFrog under this Agreement, calculated daily at the Interest Rate from the due date until the date on which it is paid. If UpFrog sends the account for collection and/or initiates legal action to collect overdue amounts, Client will be liable for all cost and expenses of such action, including reasonable legal or attorney's fees, court costs, and expenses. Additionally, after payment becomes overdue for five (5) days, UpFrog may suspend Client’s access to the Services until any overdue payment is paid in full by Client to UpFrog.

7.3. Taxes. UpFrog’s Fees are exclusive of all taxes, and Client must pay any applicable taxes or levies (including any applicable goods and services taxes as set out in A New Tax System (Goods and Services Tax) Act 1999 (Cth)), whether domestic or foreign, other than taxes based on the income of UpFrog. Client will make tax payments to UpFrog to the extent amounts are included on UpFrog’s invoices.

7.4. Annual Fee Increase. UpFrog reserves the right to increase Fees for any Services, upon sixty (60) days’ prior written notice, effective on the start date of each Renewal Term (if Client has not elected to opt out of the automatic renewal or renegotiate the Fees).

8. TERM AND TERMINATION.

8.1. Term. This Agreement is effective until the applicable Subscription Term for the Services has expired or the Subscription is terminated as expressly permitted herein. The initial Subscription Term for any Services is twelve (12) months (“Initial Term”), unless otherwise specified in Client’s Subscription Documentation. Unless otherwise stated in Client’s Subscription Documentation, the initial term for any Subscription to the Services is twelve (12) months and will automatically renew for subsequent periods of equal duration (the “Subscription Term”), unless either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term. Client may give notice of non-renewal by sending an email to [email protected]. If no Subscription start date is specified on the applicable Subscription Documentation, the Subscription starts when Client first obtains access to the Services (“Subscription Start Date”). By agreeing to any Subscription Documentation, Client is agreeing to pay applicable fees for the entire Subscription Term. Client cannot cancel or terminate a Subscription Term except as expressly permitted by Section 8.3 (Termination for Cause).

8.2. Suspension of Services. UpFrog may suspend Client’s access to the Services if: (a) Client’s account is overdue; or (b) Client has exceeded its Scope of Use limits. UpFrog may also suspend Client’s access to the Services, remove Client Data or disable Third-Party Products if it determines that: (i) Client has breached Sections 3 (Use Rights; Restrictions) or 5 (Client Obligations); or (ii) suspension is necessary to prevent harm or liability to other Clients or third parties or to preserve the security, stability, availability or integrity of the Services. UpFrog will have no liability for taking action as permitted above. For avoidance of doubt, Client will remain responsible for payment of Fees during any suspension period. Unless this Agreement has been terminated, UpFrog will cooperate with Client to restore access to the Services once it verifies that Client has resolved the condition requiring suspension.

8.3. Termination for Cause. Either party may terminate this Agreement, including any related Subscription Documentation, if the other party: (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice detailing the breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). If Client terminates during the Subscription Term for any reason other than the foregoing, Client will be responsible for the Fees due for the entire Subscription Term. UpFrog may also terminate this Agreement or any related Subscription Documentation immediately if Client breaches Sections 3 (Use Rights; Restrictions) or 5 (Client Obligations), or for repeated violations of other Sections of this Agreement.

8.4. Effect of Termination. Upon any expiration or termination of this Agreement or any Subscription Documentation: (a) Client’s license rights will terminate and it must immediately cease use of the Services (including any related UpFrog Technology) and delete (or, at UpFrog’s request, return) any and all copies of any UpFrog documentation, scripts, passwords or access codes and any other UpFrog Confidential Information in Client’s possession, custody or control and (b) Client’s right to access any Client Data in the applicable Services will cease and unless otherwise precluded, UpFrog may delete any such data in its possession at any time. If UpFrog terminates this Agreement for cause as provided in Section 8.3 (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Client. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.

8.5. Survival. The following Sections survive any expiration or termination of this Agreement: 1 (Definitions); 3 (Use Rights; Restrictions); 4 (Client Data); 7 (Fees and Payment); 8 (Term and Termination); 9 (Confidential Information); 10 (UpFrog Technology); 11 (Third-Party Products and Integrations); 12.2 (Indemnification); 12.3 (Disclaimers); 12.4 (Limitations of Liability); 13 (Dispute Resolution); and 14 (General).

9. CONFIDENTIAL INFORMATION.

9.1. Obligation of Confidentiality. Except as otherwise expressly permitted in this Agreement, each party (as the receiving party) must: (a) hold in confidence and not disclose the other party’s Confidential Information to third parties; and (b) use the other party’s Confidential Information only as necessary to fulfil its obligations and exercise its rights under this Agreement. Each party may share the other party’s Confidential Information with its employees, agents, contractors or subcontractors having a legitimate need to know (which, for UpFrog, includes the subcontractors referenced in Section 14.4), provided that such party remains responsible for any recipient’s compliance with the terms of this Section 9 and these recipients are bound to confidentiality obligations no less protective than this Section.

9.2. Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (a) is or becomes public knowledge through no fault of the receiving party; (b) was known by the receiving party prior to receipt of the Confidential Information; (c) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (d) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advance notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.

9.3. Remedies. The parties acknowledge that disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon breach of this Section each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.

10. UPFROG TECHNOLOGY.

10.1. Ownership and Updates. By accepting this Agreement, Client acknowledges that it is obtaining only a limited right to use the Services and irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Client under this Agreement and, except as expressly permitted by such limited right, Client may not make any use of UpFrog Technology. Client agrees that UpFrog (or its suppliers) exclusively retains all rights, title and interest (including all intellectual property rights) in and to all Services, products, any and all related documentation, software, technology, code, know-how, logos, trademarks, service marks, and templates (including in any reports or output obtained from the Services), anything delivered as part of support, materials or other services, and any updates, modifications or derivative works of any of the foregoing, including as may incorporate any Feedback (as defined below) (“UpFrog Technology”) provided by UpFrog (which is deemed UpFrog’s Confidential Information) and reserves any licenses not specifically granted herein. Furthermore, UpFrog exclusively owns and reserves all right, title, and interest in and to UpFrog’s Confidential Information and any data, in anonymised or aggregated form that does not identify you, any end users, or any natural person, generated or derived from the use or operation of the Services, including volumes, frequencies, bounce rates, and performance results for the Services. The Services are offered as an on-line, hosted product. Accordingly, Client acknowledges and agrees that it has no right to obtain a copy of the software behind any Services and that UpFrog at its option may make updates, bug fixes, modifications or improvements to the Services from time-to-time.

10.2. Feedback. If Client elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to UpFrog (collectively, “Feedback”), Client hereby grants UpFrog a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute and exploit any such Feedback in any manner without any obligation, payment or restriction based on intellectual property rights or otherwise. Nothing in this Agreement limits UpFrog’s right to independently use, develop, evaluate or market products, whether incorporating Feedback or otherwise.

11. THIRD-PARTY PRODUCTS AND INTEGRATIONS

UpFrog may make arrangements with third-party providers, or facilitate Client making arrangements with third- party providers, that provide products or services in connection with the Services described in this Agreement. If Client elects to use applications, integrations, add-ons, software, code, online services, systems and other products not developed by UpFrog (“Third-Party Products”) in connection with or otherwise made available through the Services, those products may make Third-Party Content available to Client and may access Client’s instance of the Services, including Client Data. Client agrees and acknowledges that use of such Third-Party Products may require Client to enter into separate terms and conditions with such third-party. UpFrog is not a party to any such terms and will not be liable thereunder. Subject to 14.4 and to the extent permitted by law, Client acknowledges and agrees that UpFrog does not warrant or support Third-Party Products or Third-Party Content (whether or not these items are designated by UpFrog as “powered”, “verified” or otherwise) and assumes no responsibility or liability for these items and their access to the Services, including their modification, deletion, disclosure or collection of Client Data. UpFrog is not responsible in any way for Client Data once it is transmitted, copied or removed from the Services to the Third-Party Products. It is Client’s responsibility to ensure any products or services of third parties used in connection with the Services are of acceptable quality and fit for purpose.

12. LIABILITY AND EXCLUSIONS

12.1 INDEMNIFICATION

12.2.1 Indemnification by Client. Client will indemnify and must keep UpFrog and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “UpFrog Entities”) indemnified and held harmless from and against any third-party claims and related costs, damages, liabilities and expenses (including reasonable legal fees) or any other loss incurred by the UpFrog Entities arising from or in connection with (a) your unAuthorized use of, or misuse of, the Services, (b) your violation of any applicable law or third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right, (c) any dispute or issue between you and any third party (including your Customers), (d) any demand, dispute or issue (including without limitation fee disputes) between you and your Payment Processor (as defined in the applicable Additional Terms, (e) any Client Data, (f) UpFrog’s use, as contemplated in this Agreement, of any information provided to UpFrog by You, your Authorized Users or your Customers, (g) any breach or alleged breach of this Agreement by the Client (including by the Client’s Authorized Users), including Client’s Warranties and Obligations, (h) any claim made against UpFrog by Authorized Users or other third parties in any way relating to the Services or their use of the Services, or (i) any claim of a governmental entity or other party that you have violated any law, rule, or regulation. Client will not, however, be liable to indemnify UpFrog to the extent UpFrog was grossly negligent, fraudulent, or caused or contributed to any misuse of the Services under the Agreement. Where applicable, Client must not settle any claim arising from or in connection with this Agreement or the Services, which might impact UpFrog without UpFrog’s prior written consent if the settlement does not fully release UpFrog from liability or would require UpFrog to admit fault, pay any amounts or take or refrain from taking any action.

12.2.2 Indemnification by UpFrog. UpFrog will indemnify and hold Client harmless from and against any third-party claims and related costs, damages, liabilities and expenses (including reasonable attorney’s fees) arising from or pertaining to (i) UpFrog’s gross negligence or willful misconduct; or (ii) UpFrog’s infringement, misappropriation or violation of a third party’s intellectual property rights. UpFrog also agrees to defend Client against these claims at Client’s request, but Client may participate in any claim through counsel of its own choosing and the Parties will reasonably cooperate on any defense. UpFrog must not settle any claim without Client’s prior written consent if the settlement does not fully release Client from liability or would require Client to admit fault, pay any amounts or take or refrain from taking any action.

12.3. DISCLAIMERS

SUBJECT TO SECTION 12.1 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS PROVIDED EXPRESSLY HEREIN, ALL UPFROG TECHNOLOGY AND RELATED SERVICES, MATERIALS AND CONTENT AVAILABLE THROUGH THE UPFROG TECHNOLOGY ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER UPFROG NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. UPFROG MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT UPFROG TECHNOLOGY WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, THAT CLIENT DATA WILL BE ACCURATE, COMPLETE OR PRESERVED WITHOUT LOSS, OR THAT UPFROG TECHNOLOGY WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, AND UPFROG DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. UPFROG WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CLIENT PROPERTIES, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-UPFROG SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR THE COLLECTION, USE AND DISCLOSURE OF CLIENT DATA Authorized BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CLIENT BASED UPON UPFROG TECHNOLOGY OR UPFROG’S RELATED SERVICES (INCLUDING CHANGES TO CLIENT PROPERTIES). CLIENT MAY HAVE OTHER STATUTORY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR UPFROG ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE UpFrog ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. UPFROG DOES NOT PROVIDE ITS CLIENTS WITH LEGAL ADVICE REGARDING DATA PRIVACY OR COMPLIANCE WITH RELEVANT LAW IN ANY JURISDICTION, AND ANY STATEMENTS MADE BY UpFrog TO ITS CLIENT(S) WILL NOT CONSTITUTE LEGAL ADVICE. USE OF THE SERVICES DOES NOT GUARANTEE COMPLIANCE WITH APPLICABLE LAWS IN ANY JURISDICTION.

12.4. LIMITATIONS OF LIABILITY

SUBJECT TO SECTION 12.1 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UPFROGg OR ITS SUPPLIERS WILL NOT BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL UPFROG’S OR ITS SUPPLIERS’ TOTAL LIABILITY EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID BY CLIENT TO UPFROG FOR THE APPLICABLE SERVICE(S) OR RELATED SERVICE(S) IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES PROVIDED WITHOUT CHARGE, UPFROG’S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS ($50.00 US). NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 12.4 EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE. IN ADDITION, THE LOCAL LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 12.4 WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY SUCH LAW. TO THE EXTENT THAT SUCH LIABILITY CANNOT BE EXCLUDED AND WHERE THE ACL APPLIES, UPFROG’S LIABILITY IS LIMITED AT THE OPTION OF UPFROG TO (A) IN THE CASE OF ANY PRODUCT, ANY ONE OR MORE OF THE FOLLOWING (i) THE REPLACEMENT OF THE PRODUCT OR THE SUPPLY OF EQUIVALENT PRODUCT, (ii) THE REPAIR OF THE PRODUCT, (iii) THE PAYMENT OF THE COST OF REPLACING THE PRODUCT OR OF ACQUIRING EQUIVALENT PRODUCT, OR (iv) THE PAYMENT OF THE COST OF HAVING THE PRODUCT REQUIRED, IF APPLICABLE; AND (B) IN THE CASE OF ANY UPFROG TECHNOLOGY OR SERVICES OR RELATED SERVICES PERFORMED BY UPFROG: (i) THE SUPPLY OF THOSE SERVICES AGAIN, OR (ii) THE PAYMENT OF THE COST OF HAVING THOSE SERVICES APPLIED AGAIN.

13. DISPUTE RESOLUTION.

If a party claims that a dispute has arisen between the parties under this Agreement or the Services provided therefrom, and the dispute cannot be settled through informal negotiations within 3 months, a party must provide written notice to the other party within 6 months of the occurrence of the event(s) giving rise to the dispute or the party becoming aware of the occurrence of the event(s). The dispute notice must set out relevant information including the background of the alleged events giving rise to the dispute, the basis of the claim, and the relief or remedy (if any) that is sought. In the event that the dispute is not resolved as a result of informal negotiations following the dispute notice being received by the other party (or as such other period as agreed by the Parties’ representatives), the parties agree that a senior executive of each party must meet as soon as reasonably practicable and endeavour to resolve the dispute in good faith. If following this meeting between the Parties’ senior executives, there is no resolution, then the Parties agree to resolve their dispute (referred to herein as “Claim(s)”) as follows:

13.1. Mediation. The Parties agree to participate in mediation to settle their Claims in accordance with the rules and procedures found in the United States Arbitration & Mediation Rules (“Rules”) and this Agreement before a party can file a judicial action, whether in a court of law, an administrative body, government agency, or otherwise. If there are any conflicting provisions between the Rules and this Agreement, the provisions in this Agreement will govern.

13.1.1. Notice. Mediation will be conducted within sixty (60) days from a party receiving written notice of Claims from a complaining party. The notice must contain a detailed description of the nature of the Claims and the requested relief sought.

13.1.2. Mediator Selection and Mediator Fees. A neutral mediator will be selected as mutually agreed upon by the parties. The mediator’s fees and costs will be paid to the mediator at the end of mediation, with both parties equally sharing the mediation costs and paying their own legal fees and costs.

13.1.3. Location. Mediation will occur in Maryland

13.2. Judicial Action. If the parties are unable to resolve the Claim pursuant to the mandatory mediation referenced above (or if one of the parties refuses to participate in the mandatory mediation or fails to respond to a complaining party’s request for mediation), the parties may subsequently file a judicial action.

13.3. Disputes Not Subject to the Mediation Process. The following claims or actions are not subject to the mandatory mediation provisions of this Section 13:

13.3.1. A request for an order of injunctive relief and any related incidental damages;

13.3.2. A request for an order to prevent the disclosure of or misuse of Confidential Information or Trade Secrets; and/or

13.3.3. Enforcement of Client’s payment obligations as set forth under Section 7.

14. GENERAL.

14.1. Assignment. Neither party may assign or purport to assign any of its rights or obligations under this Agreement without the advance written consent of the other party (which must not be unreasonably withheld). Additionally UpFrog may assign this Agreement subject to consent (which must not be unreasonably withheld) to an affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly consented to under this Section 14.1 will be null and void.

14.2. Notices. Any notice or communication to UpFrog under this Agreement must be in writing. Client must send any notices under this Agreement (including breach notices) to UpFrog Headquarters and include “Attn. Legal Department” in the subject line. UpFrog may send notices to the e-mail addresses on Client’s account or, at UpFrog’s option, to Client’s last-known postal address. UpFrog may also provide operational notices regarding the Services or other business-related notices through conspicuous posting of such notice on UpFrog’s website or the Services. Each party hereby consents to receipt of electronic notices. UpFrog is not responsible for any automatic filtering Client or its network provider may apply to email notifications.

14.3. Publicity. Unless otherwise specified in the applicable Subscription Documentation, UpFrog may use Client’s name, logo and marks to identify Client as a UpFrog Client on UpFrog’s website and other marketing materials.

14.4. Subcontractors. UpFrog may use subcontractors or otherwise delegate the performance of its obligations or the exercise of its rights under this Agreement in order to provide the Services and related services under this Agreement. UpFrog will not be required to obtain the Client’s consent or provide notice of such sub-contracting or delegation. To avoid any doubt, UpFrog remains responsible for the performance of its obligations or the exercise of its rights under this Agreement regardless of any subcontracting or delegation.

14.5. Subpoenas. Nothing in this Agreement prevents UpFrog from disclosing Client Data to the extent required by law, subpoenas, or court orders, but UpFrog will use commercially reasonable efforts to notify Client where permitted to do so.

14.6. Independent Contractors. The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

14.7. Force Majeure. Neither party will be liable for any delay or failure to perform its obligations under this Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, disruption in transportation systems, disruption of labor force, national or state emergency, epidemic, pandemic, communicable disease outbreak, failure or reduction of power or telecommunications or data networks or services, or government act.

14.8. Amendments; Waivers. UpFrog may update or modify these Terms (including the Additional Terms and any referenced policies and other documents) from time to time by giving reasonable notice in advance to Client and subsequently posting a revised version on the Website or Services or via the email associated with your account. If a change to these Terms materially modifies your rights or obligations, you may be required to click through the updated Terms to show acceptance and to continue to use the Services. Material modifications are effective upon the earlier of your acceptance of the modified Terms or upon your next subsequent Subscription Term. Immaterial modifications will become effective upon posting or notification, and continued use of the Services or Website, following the update, will constitute acceptance of the updated Terms. If Client does not agree to the updated Terms, Client will no longer have the right to use the Services and may terminate without incurring early termination fees. Except as otherwise described in this Section, any modification, supplementation, replacement, novation or amendment to this Agreement as set out in the Subscription Documentation must be made in writing and signed by a duly Authorized representative of each party (each in its discretion). No waiver will be implied from conduct or failure to enforce or exercise rights or delay in exercising the right, under this Agreement. No waiver of any provision of this Agreement will constitute a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement will not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision. Waivers must be made in writing and signed by a duly Authorized representative of the waiving party.

14.9. Headings. The headings used in this Agreement are for ease of reference only. They are not intended as a complete re-statement of the matters contained under each heading, and you acknowledge that you have read and understand all the text of this Agreement, and not just the headings.

14.10. Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable, void or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect, and all other provisions remain in full effect.

14.11. No Third-Party Rights. Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement. Client acknowledges that each Subscription only permits use by and for the legal entity or entities identified in the Subscription Documentation and not any affiliates. Furthermore, Client's affiliates are not permitted to use the Services under these Terms unless an affiliate agrees to these Terms individually and creates its own account.

14.12. Attorneys’ Fees and Costs. The substantially prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs for the action.

14.13. Entire Agreement. This Agreement, including these Terms and any applicable Subscription Documentation, represents the parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral or written communications, understandings, agreements, representations or warranties, proposals and representations with respect to the UpFrog Technology or any other subject matter covered by this Agreement.

14.14. Counterparts; Electronic Transmission. This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one and the same instrument. A facsimile or other reproduction of this Agreement may be executed by one or more parties hereto, and an executed copy of this Agreement may be delivered by one or more parties hereto by facsimile or similar electronic transmission device pursuant to which the signature of or on behalf of such party can be seen, and such execution and delivery will be considered valid, binding and effective for all purposes. At the request of any party hereto, all parties hereto agree to execute an original of this Agreement as well as any facsimile or other reproduction hereof.

14.15. Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of Maryland, United States. To the extent permitted by law, the courts of Maryland, United States, will be the exclusive jurisdiction for disputes arising out of or in connection with this Agreement.

14.16. Notice Regarding Apple. This Section 14.16 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and UpFrog only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Services or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Services. If the Services fail to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including: (a) product liability claims; (b) any claim that the Services fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Services and/or your possession and use of the Services infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Services. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.