Terms of service

Created on 7 January, 2024 • Legal • 79 views • 34 minutes read

Capitalized words in these Service Terms have special meanings given in the
Section where they are first used or in Section 11 (Definitions).


Uptimex.app may modify these Services Terms at any time, but modifications are
not effective for Orders that are in place prior to the modification until the
Order renews or Customer adds new Services for the monitored Web Application.
See Section 10.20 (Changes to Online Service Terms).


1. SERVICES. Uptimex.app agrees to provide Services for the Term
on the terms and conditions stated in the Order and these Service Terms.
Uptimex.app makes the following commitments:


1.1 Services. The Services will include those features listed
in Customer’s Order and related graphical user interfaces and application
programming interfaces. Uptimex.app will update the Services without additional
charge so that they remain consistent with its generally available current
offering that corresponds to the Services purchased.


1.2 Warranties. Uptimex.app warrants that (i) the Services will
conform in all material respects with the description of the Services stated in
the Order and with its general release user Documentation, and (ii) if Customer
has configured the Services in accordance with the Documentation for a “best
case build” or “common practice build” the data returned by the Services will be
materially accurate (the “Services Warranty”).


1.3 Support. Uptimex.app will publish support Documentation
online on its Site. Uptimex.app will provide live technical assistance via email,
ticket, telephone and chat during its standard support hours. Uptimex.app’s
standard support hours are published on its website. Uptimex follows the United
States Federal Public Holiday schedule and will provide best effort support on
these days.


1.4 Evaluation Use of the Services. Uptimex.app may provide
Customer with access to its Services for Customer’s use in evaluating the
Services for a potential purchase. Notwithstanding anything in the contrary in
the Agreement, Services provided on an evaluation basis, whether provided at no
charge or for a fee, are provided AS IS, without any service
commitments, warranties or representations whatsoever. Uptimex.app has no
obligation to provide support for any evaluation services. Any support that is
provided is provided on an AS IS and AS
AVAILABLE basis. Uptimex.app has no liability for any harm or damage
arising out of or in connection with Customer’s use of the services during any
evaluation period.


2. CUSTOMER INFORMATION. “Customer
Information” is any data or information that Customer submits to
Uptimex.app in connection with the Uptimex.app Services account or that is created
or accessed by Customer or Uptimex.app by means of the Uptimex.app Services.
Customer Information consists solely of: (i) information submitted to Uptimex.app
to establish a Services account, receive support, and use the Services, such as
business contact information of Customer’s personnel, payment information, and
content of support requests, and (ii) data or information collected by means of
the Services. Unless Customer elects to install Uptimex.app’s code snippet on the
Customer’s Web server, the only information collected by Uptimex.app by means of
the Services is information that is generally available to any public user of
the Customer’s monitored Web Application(s). If Customer elects to install
Uptimex.app’s code snippet on its Web server, then the Uptimex.app Service may
also capture information that is captured by Web servers generally, such as
visitor IP address, date and time of visit, and duration of visit. Customer
Information is Customer’s Confidential Information covered by Section 10.3
(Confidential Information). As between Customer and Uptimex.app,
Customer owns and retains ownership and all rights in Customer Information and
Uptimex.app may use Customer Information only for the purpose of providing the
Services, communicating with Customer and administering the Customer’s account,
exercising its legal rights and remedies in connection with the Agreement, and
as otherwise expressly permitted by Section 10.3 (Confidential
Information). Uptimex.app will destroy Customer Information on Customer’s
request following termination. “Customer Information” does not include system
generated data about Customer’s use of the Services, such as user navigation on
the Services interface and resource utilization. Uptimex.app may use system
generated data for insights to help it improve general support and service.
Customer authorizes Uptimex.app to de-identify and aggregate Customer Information
with similar de-identified data of other customers and with anonymous data from
public or private data sets and analyze the resulting data sets for insights to
help it improve its services generally, provided that Uptimex.app’s method of
de-identification must make it technically infeasible for any data to be
re-identified to any of Customer’s customers or to Customer.


3. SECURITY AND PRIVACY.


3.1 Security. On Customer’s request, Uptimex.app will provide a
description of the security measures it uses to protect Customer Information
(the “Security Materials”). Uptimex.app will
protect Customer Information using measures at least as stringent as those
stated in the Security Materials for the Term and following the Term for so long
as Uptimex.app retains any Customer Information. Customer acknowledges that
Uptimex.app cannot guarantee complete security and that there is always a
security risk involved in the use of an online service. Customer acknowledges
that the measures described in the Security materials are reasonable and
appropriate given the nature of the Customer Information and agrees that
Uptimex.app is not responsible to Customer for any harm Customer suffers as a
result of a security breach unless the breach resulted from Uptimex.app’s failure
to maintain the security measures described in this Security Materials. Customer
acknowledges that the Security Materials are Uptimex.app’s sensitive Confidential
Information covered by the restrictions on use and disclosure stated in Section
10.3 (Confidential Information).


3.2 Privacy. Customer Information includes Personal Data as
follows: (i) business contact information and Uptimex.app log in credentials of
Customer’s personnel and their interactions with the Uptimex.app application or
support portal; (ii) information volunteered by Customer’s personnel as part of
a support request or other communication, and (iii) if Customer elects to
install the Uptimex.app code snippet on its Web server, the IP address of
visitors to the monitored Web Application and other data about their visit that
is captured by Web servers generally, such as date and time of visit and
duration of visit. Uptimex.app makes the following commitments with respect to
Customer’s Personal Data: (i) Uptimex.app will provide Customer with access to
the Personal Data as necessary for Customer to comply with applicable legal
requirements for access, destruction, or modification of the Personal Data at
the request of a data subject; and (ii) Uptimex.app will notify Customer in
writing without undue delay if it discovers that any Personal Data has been
accessed, used, disclosed, destroyed, or corrupted other than as permitted by
the Agreement, will provide all information reasonably available to it regarding
the reported event, will cooperate with Customer’s reasonable requests to
mitigate and remediate the event. Customer acknowledges and agrees that
Uptimex.app affiliates and services suppliers may be based outside of the
geographic jurisdiction in which Customer’s data subjects are located. If
legally required the parties will enter into good faith negotiations for such
agreements as are necessary for the transfer of the personal data across
national borders.


4. API(s), MOBILE APPLICATIONS.


The Uptimex.app mobile applications and any API or any other software or computer
instructions that Uptimex.app provides for Customer’s use on a Customer system or
device are licensed to Customer on a non-exclusive, limited term basis for
Customer’s use only in connection with the Uptimex.app Services as permitted by
the Agreement, and subject to all of the restrictions and conditions stated in
the Agreement. Uptimex.app may modify its API(s) from time to time .


5. INTEGRATION FEATURES


The Services include integration features for third-party services such as
Slack, PagerDuty, and other communications services and tools. Customer
acknowledges that Uptimex.app’s integration features may be unavailable or may
not work properly if the service provider’s API is unavailable or if the service
provider modifies its API or services in a way that impacts the Uptimex.app
integration feature. Uptimex.app will use commercially reasonable efforts to
modify its integration features to maintain compatibility with service
provider’s APIs and services but may discontinue an integration feature without
liability to Customer if there is a change in the service that creates an
unreasonable cost or operational burden to Uptimex.app. Customer’s obligations
under the Agreement, for fees and otherwise, are not conditioned on the
continued availability of any integration features.


6. FEES AND PAYMENTS


6.1 Fees. Uptimex.app’s fees may be fixed amounts or rate-based
usage charges. The initial fees are established by the Order and Uptimex.app may
charge the fees at the times stated in the Order. Uptimex.app may not increase
fees during the initial term of an Order but may increase fees for any renewal
term to the amounts stated in Uptimex.app’s renewal invoice. Unless otherwise
expressly stated in the Order: (i) Uptimex.app may charge the fees for the entire
initial term of the Order on submission of the Order; (ii) fees are stated and
must be paid in United States Dollars, and (iii) paid fees are non-refundable,
notwithstanding subsequent receipt of Customer requests for termination of a
subscription.


6.2 Sales Tax. The stated fees do not include any sales, use,
VAT or like taxes (“Sales Tax”). Customer must pay any
applicable Sales Tax that Uptimex.app is required to collect from Customer under
applicable law.


6.3 Payments. Unless Customer has made other arrangements with
Uptimex.app, Customer must authorize and maintain a current valid means for
Uptimex.app to collect its fees for the Services via payment card at all times
during the Term. If at any time during the term of the subscription the
customers payment method is removed or unavailable, Uptimex.app can not guarantee
renewal pricing will be retained from the previous subscription agreement.


6.4 Late Payments. Uptimex.app may suspend or terminate
Customer’s Services or the Agreement if Customer’s payment is overdue, including
if Uptimex.app’s charge to Customer’s payment card or account is rejected. If
Uptimex.app suspends Customer’s account for late payment, Customer must pay
Uptimex.app’s reasonable reinstatement fee.


7. CUSTOMER OBLIGATIONS, RESTRICTIONS ON USE


7.1 Web Application. Customer will use the Services only to
monitor the Web Application (s) identified that the Customer has formal approval
to do so. Any abuse, improper usage, configuration or implementation of
monitoring capabilities provided by the Uptimex.app service are at the sole
responsibility of the Customer. If Uptimex.app receives a formal complaint from
any 3rd party regarding the improper use of our services, Uptimex.app is not
liable for any damages, including but not limited to, loss of service, loss of
functionality or availability of the 3rd Party or the Customers services.
Uptimex.app reserves the right, at our sole discretion, to modify, discontinue,
suspend or terminate the Services if the Customer continues to violate the Terms
of Service in any capacity.


7.2 Fees. Customer will pay fees when due for the Term.
Customer will not use or attempt to use the Services in a way that undermines
Uptimex.app’s ability to correctly calculate its fees.


7.3 No Service Provider Use or Resale. Customer may use the
Services only in connection with its and its affiliates internal business
purposes. Customer may not resell the Services or use the Services to provide
services to others.


7.4 Customer’s Security Obligations. Customer will use
reasonable security precautions in connection with its use of the Services. For
example, Customer will use commercially reasonable efforts to protect its
systems and data from malware, will require its users to establish reasonably
secure passwords that are different than the passwords used for other online
services, and will conduct anti-phishing training.


7.5 Authorized Users. Customer will authorize as Services users
only the following: (i) its personnel, (ii) the personnel of Customer’s
affiliates, and (iii) the personnel of Customer’s and its affiliates’
contractors for their use in supporting Customer’s or the affiliates’ internal
business operations. Customer is solely responsible for deactivating or updating
permissions and authentication credentials for Customer’s users, such as on the
termination of employment of a user. Customer authorizes Uptimex.app to act on
the instructions of a user who authenticates using active account credentials.


7.6 Compliance with Law, Acceptable Use. Customer will use the
Services in compliance with applicable law and only to monitor Web applications
that it operates in compliance with applicable law and industry acceptable use
norms as described in the acceptable use policies of tier one public cloud
infrastructure providers such as Amazon Web Services, Azure, and Google.


7.7 Representations and Warranties. Customer represents and
warrants to Uptimex.app as of the effective date of each Order and on an ongoing
basis that: (i) the information Customer submits about itself and Customer’s
activities to establish a Services account with Uptimex.app and place an Order is
true, correct, and complete, (ii) Customer has not been the target of any legal
or regulatory investigations or proceedings in connection with Customer’s
business activities, (iii) Customer has all necessary rights and authority to
authorize Uptimex.app to use and process Customer Information as permitted by the
Agreement, and (iv) Customer has and has made disclosures and obtained consents
as required for Uptimex.app’s processing of Personal Data as permitted by the
Agreement.


8. TERM, TERMINATION, SUSPENSION


8.1 Term. The initial term of each Order begins on Order
submission and continues for the number of months stated in the Order, or for
one (1) month if the Order does not state a specific number of months. Customer
may renew an Order by paying Uptimex.app’s renewal fees.


8.2 Termination. Either party may terminate an Order or any or
all Orders between the parties, on written notice if the other party is in
material violation of any term of an Order or these Service Terms, provided that
if the violation is curable the terminating party must first give the other
party a written notice describing the violation in reasonable detail and at
least ten (10) days to cure the violation.


8.3 Suspension. Uptimex.app may suspend Customer’s access to the
Services and Customer Information during any period that Customer is in material
breach of the Agreement or Customer’s access to the Services or Customer
Information creates a material security vulnerability. Uptimex.app will give
Customer at least two (2) business days’ advance notice of the suspension unless
the suspension is made under emergency circumstances. Uptimex.app will reinstate
Customer’s access to the Services when the grounds for suspension are cured
unless Uptimex.app has already terminated the Agreement as described in this
Section.


8.4 Surviving Provisions. The following sections survive
expiration or earlier termination of the Agreement: Section 2 (Customer
Information); Section 3 (Security and Privacy) for so long as Uptimex.app
retains any Customer Information, Section 6 (Fees and Payment), Section
8 (Term, Termination and Suspension), Section 9 (Remedies, Disclaimers,
Indemnification, Limitations), Section 10 (General Terms), and
Section 11 (Definitions) and any other terms that by their nature are intended
to survive expiration or termination.


9. REMEDIES, DISCLAIMERS, INDEMNIFICATION, LIMITATIONS


9.1 Warranty Remedy. If Uptimex.app fails to meet the Service
Warranty, Uptimex.app will attempt to cure the failure or if it is unable to cure
the failure through commercially reasonable efforts will refund the fees paid
for the month during which the failure occurred. However, to be eligible for a
warranty remedy under this section, Customer must give a written notice
describing the failure no later than ten (10) days following the end of the
month and cooperate with Uptimex.app’s reasonable efforts to cure the failure.
The remedies stated in this Section are Customer’s sole and
exclusive remedy for Uptimex.app’s breach of the Services Warranty.


9.2 No Other Warranty. Except as expressly stated in these
Services Terms or an SLA, the Services are provided AS IS. Uptimex.app
disclaims any implied warranties, such as a warranty of merchantability, fitness
for a particular purpose, and non-infringement, and any representation or
warranty that may arise through a course of dealing. Customer acknowledges that
the use of the Service may not be uninterrupted, error free, or completely
secure. Customer represents that Customer has not relied on any
representation or warranty other than those stated in these Services Terms.


9.3 Indemnification. Uptimex.app shall defend Customer and its
affiliates, and each of their respective employees, directors, members,
managers, officers, owners, and agents (collectively the “Customer
Indemnitees”) from any third-party claim asserting that Customer’s use of the
Services as permitted by the Agreement infringes or misappropriates the
copyright, patent, trade secret or other intellectual property right of the
third party recognized in the United States (either under direct United States
law or pursuant to an international treaty to which the United States is a
party) (an “IP Claim”) and pay any resulting liability, judgment, loss,
damage, cost and other expense (including reasonable attorneys’ fees)
(“Losses”) awarded to the third party by a court of competent
jurisdiction, or in the alternative shall settle the IP Claim at Uptimex.app’s
expense, provided that Customer’s consent is required if the settlement does not
fully resolve the IP Claim or requires Uptimex.app or any Customer Indemnitee to
make a statement admitting culpability. Notwithstanding the foregoing,
Uptimex.app shall not have any obligation to indemnify an IP Claim to the extent
it results from (i) an unauthorized modification of the Services by any of the
Customer Indemnitees or persons acting on their instruction, or (ii) an
unauthorized combination or use of the Services by any of the Customer
Indemnitees or persons acting on their instruction with any software, hardware
or other technology, information or materials not provided by Uptimex.app unless
the combination or use is reasonably contemplated by the nature of the Services
or their authorized use. If an IP Claim is asserted, or in Uptimex.app’s
reasonable opinion is reasonably probable of assertion, Uptimex.app may terminate
the Agreement without liability except to refund prepaid fees for unused
Services, provided that Uptimex.app must first have used commercially reasonable
efforts to resolve the IP Claim or modify the Services to avoid the IP Claim
without material diminishment of functionality. This Section states Customer’s
sole and exclusive remedies and Uptimex.app sole and exclusive obligations with
respect to claims of intellectual property infringement.


9.4 Limitation of Liability.


9.4.1 No Consequential, Indirect Damages. Except for
claims arising from a party’s breach of Section 10.3 (Confidential
Information), or claims based on the party’s intentional breach of the
other party’s intellectual property rights, neither party nor its affiliates,
licensors, suppliers, resellers, distributors or subcontractors is liable to the
other for any lost profits, lost revenue, lost business opportunity, or any
indirect, special, incidental, punitive, or consequential loss or damage of any
kind arising in connection with this Agreement, or any loss or damage that could
have been avoided by the claiming party’s reasonable mitigation, even if the
party has been advised of or should be aware of the possibility of such
damages. For avoidance of doubt, damages of the type described in this
subsection that are awarded by a court or other tribunal to a third party and
are covered under Section 9.3 (Indemnification) are not excluded by this
subsection.


9.4.2 Maximum Liability. Notwithstanding anything to
the contrary in this Agreement, excluding: (i) claims arising from a party’s
gross negligence, recklessness, or intentional tort, (ii) claims arising from a
party’s breach of Section 10.3 (Confidential Information), (iii) claims
based on the party’s intentional infringement or misappropriation of the other
party’s intellectual property rights, and (iv) payment obligations under Section
6 (Fees and Payments), the maximum aggregate liability of a party and
its affiliates, licensors, suppliers, resellers, distributors, and
subcontractors under or in connection with this Agreement for any type of
damages, claims or obligations shall not exceed the amount of fees paid or
payable by Customer under the Order giving rise to the claim for the 12 months
preceding the event giving rise to the claim. For clarity, the maximum
aggregate monetary limit stated in this subsection is not “per incident” but is
an aggregate limitation applicable to all claims arising under or regarding this
Agreement.


9.4.3 General. Customer acknowledges that Uptimex.app has set
its fees and entered into the Order in reliance on the limitations of remedies
and liability stated in these Terms, and that these limitations reflect an
agreed allocation of risk between Customer and Uptimex.app . The limitations
stated in this Section shall apply to any liability arising from any cause of
action whatsoever, whether in contract, tort, commercial code, strict liability
or otherwise, even if a limited remedy fails of its essential
purpose. If these limitations as written are not permitted by
applicable law, they shall apply to the extent permitted by applicable law.


10. GENERAL TERMS


10.1 Rights in Technology/Intellectual Property. Customer may
not copy any part of the Services or Uptimex.app Technology except to the extent
necessary to use the Services as permitted by the Agreement and shall not remove
or obscure Uptimex.app’s name or any branding and proprietary notices. Customer
may not reverse engineer or attempt to discover any underlying algorithm or
method embodied by the Services or Uptimex.app’s other technology except to the
extent applicable law permits such activity notwithstanding this limitation, and
then on thirty (30) days advance written notice to Uptimex.app . Customer may not
disclose to any third party any benchmarking or other test or evaluation
Customer conducts on the Services. Customer may not use the Services or other
Uptimex.app Technology for the purpose of creating a competing technology.
Customer may not use the Services or other Uptimex.app Technology other than by
means of the interface(s) provided by Uptimex.app . Customer may not modify or
create derivative works of any Uptimex.app Technology. Except for rights
expressly granted in this Agreement, Uptimex.app retains all right, title and
interest in and to its Services, technology, and information and all related
intellectual property rights. No rights in Intellectual Property may arise by
implication or estoppel.


10.2 Feedback. Customer hereby licenses to Uptimex.app any
feedback or suggestions that Customer may provide regarding the Services or
Uptimex.app’s other existing or proposed products or services on a perpetual,
irrevocable, royalty free, worldwide, unconditional, fully sublicensable and
transferable basis, including the right to make, have made, use, sell, offer to
sell, import, copy, display, perform, modify, distribute in modified or
unmodified form, and commercialize any intellectual property, without accounting
to Customer for revenues or profits.


10.3 Confidential Information. Neither party may use the other
party's Confidential Information except in connection with the performance of
its obligations under this Agreement or the permitted use of the Services, as
applicable, the exercise of the party’s legal rights under this Agreement, or as
may be otherwise permitted under this Agreement or required by law. Each party
agrees not to disclose the other party’s Confidential Information to any third
person except as follows: (i) to the party’s respective service providers,
agents and representatives, provided that such service providers, agents or
representatives are bound by written confidentiality measures that are at least
as stringent as these terms; (ii) in response to a subpoena or other compulsory
legal process, provided that each party agrees to give the other advance written
notice of at least seven (7) days prior to disclosing the other party’s
Confidential Information under this subparagraph (or prompt notice in advance of
disclosure, if seven (7) days advance notice is not reasonably feasible), unless
the law or a reasonable interpretation of it, forbids such notice, or (iii) as
otherwise expressly permitted by the Agreement. On expiration or earlier
termination of the Agreement, each party will return or destroy the other
party’s Confidential Information. If a party believes it is not feasible to
completely destroy the other party’s Confidential Information as required by
this Section, it will give the other party written notice describing the
Confidential Information and the circumstances that make destruction infeasible.
All Confidential Information retained by each party following termination of the
Agreement remains subject to the requirements of this Section. Each party will
use commercially reasonable care to safeguard the other’s Confidential
Information. Uptimex.app’s obligations to use reasonable care safeguard Customer
Information is met by its use of the measures described in its Security
Materials. Each of Customer and Uptimex.app is responsible for a breach of this
Section by its service providers, agents and representatives to whom it has
disclosed the other party’s Confidential Information.


10.4 Governing Law, Venue, Waiver of Jury Trial. The Order and
these Services Terms are governed by and should be interpreted under the laws of
the State of Delaware and the United States of America, as applicable, without
giving effect to any conflicts of law principles that would require the
application of the law of a different jurisdiction. The parties expressly and
irrevocably disclaim and waive the application of the United Nations Convention
on Contracts for the International Sale of Good and the Uniform Computer
Information Act. The parties agree that neither the Services nor the Uptimex.app
Technology are “goods” covered by any State version of the Uniform Commercial
Code. Each party agrees that it shall bring any lawsuit or other legal action
related to this Agreement in the State court in Sarasota County, Florida or
Federal courts sitting in Hillsborough County, Florida. Neither party shall
dispute the personal jurisdiction of such courts, and each party waives any
objection it may have as to the venue of such court. To the extent
permitted by applicable law, each party waives the right to a trial by jury in
respect of any litigation arising out of this Agreement or its subject
matter. A party may not bring an action in relation to this Agreement
more than two (2) years after the date that the cause of action accrued.


10.5 Notices. Customer’s notices must be submitted via ticket
on the customer portal, and copied by electronic mail to help@uptimex.app .
Uptimex.app’s notices to Customer must be given to Customer’s primary account
contact at the email address in the Uptimex.app portal. If Customer sends a
notice of breach of the Agreement, a legal dispute , a legal claim, or other
legal matter, Customer must copy Customer’s notice to help@uptimex.app, and
must also send Customer’s notice via first class United States mail to
Uptimex.app’s physical address appearing on its Site on the day the notice is
transmitted electronically. Uptimex.app’s legal notices to Customer must be
copied via first class United States mail to Customer’s physical notice address,
or if Customer’s physical address is outside of the United States, via a
reputable and established international priority mail service on the date the
notice is transmitted electronically. Notices are deemed given, received and
effective as of the time transmitted by electronic mail, or if that time does
not fall on a business day, as of the beginning of the first business day
following the time transmitted. Notices must be given in the English language. A
party may change its address for notice by giving notice in the manner stated in
this Section.


10.6 Informal Dispute Resolution. Except for a request for
injunctive relief as permitted by Section 10.7 (Injunctive Relief),
each party agrees that it will not file a lawsuit or other legal action in
connection with the Services, any Order, or these Services Terms, unless it has
first given the other party written notice of the dispute and attempted to
resolve the dispute through good faith negotiation.


10.7 Injunctive Relief. Notwithstanding anything in this
Agreement to the contrary, this Agreement does not prohibit, condition or delay
a party’s right to seek injunctive relief in any court of competent jurisdiction
to address the other party’s infringement or misappropriation of its
intellectual property, or the other party’s breach of its confidentiality
obligations under this Agreement.


10.8 Export Compliance. The Services may be subject to export
laws and regulations of the United States and other jurisdictions. Customer may
not permit users to access or use the Services in a U.S.-embargoed country or in
violation of any U.S. export law or regulation, or in a manner that causes
Uptimex.app to be in violation of U.S. export laws, even if the use is permitted
by the laws applicable to Customer or Customer’s user or customer. Each party
represents that it is not on any restricted persons list maintained by the U.S.,
Canada, or any member of the European Union.


10.9 Anti-Corruption. Each party represents that it has not
received or been offered any illegal or improper bribe, kickback, payment, gift,
or thing of value from the other’s employees or agents in connection with this
Agreement. Reasonable gifts and entertainment provided in the ordinary course of
business do not violate the above restriction. If either party learns of any
violation of the above restriction, it will promptly notify the other party.


10.10 Force Majeure. Except for Customer’s payment obligations,
neither party is in violation of the Agreement if the failure to perform is due
to an event beyond that party’s reasonable control, such as a significant
failure of the power grid or Internet, denial of service attacks, natural
disaster, war, riot, insurrection, epidemic, strikes or other organized labor
action, terrorism, or other acts or events for which precautions are not
generally taken in the industry.


10.11 Assignment. Neither party may assign any of its rights or
obligations hereunder, whether by operation of law or otherwise, without the
other party’s prior written consent (not to be unreasonably withheld); provided,
however, either party may assign this Agreement in its entirety (including all
Orders), without the other party’s consent to its affiliate or in connection
with a merger, acquisition, corporate reorganization, or sale of all or
substantially all of its assets. Subject to the foregoing, this Agreement will
bind and inure to the benefit of the parties, their respective successors and
permitted assigns.


10.12 Publicity. Each party will consider the other’s requests
to participate in the development of product whitepapers, testimonials for Web
publication, and other like materials for publication, provided that neither
party may issue any press release or other publicity regarding this Agreement or
the relationship or transactions contemplated by this Agreement without the
prior review and consent of the other party. Customer agrees that Uptimex.app may
identify Customer as its customer on its sales presentations and its website
where it identifies its customers generally, and Uptimex.app agrees that Customer
may identify it as Customer’s service provider on Customer’s website. Each party
may use the other party’s trade or service marks in connection with authorized
use of its name and other approved activities. Each party shall use the other’s
trademarks subject to the other party’s reasonable trademark usage guidelines
that are communicated to the party from time to time.


10.13 Relationship of the Parties. The parties are independent
contractors. Neither party is the agent of the other, and neither party is
authorized to make any representations, contract, or commitment on behalf of the
other. The use of the words “partner” or “partnership” in this Agreement or
otherwise refers only to a business relationship, and does not create or reflect
any legal partnership, joint venture, or other fiduciary or other special
relationship between the persons described as partners. The parties do not agree
to any exclusivity in regards to the subject matter of this Agreement and each
party is free to contract with third parties, including competitors of the other
party, for transactions of the type covered by this Agreement in any market,
worldwide.


10.14 Interpretations. In calculating any period of time under
this Agreement, the day of the act, event or default from which the designated
period of time begins to run is not to be included. The term “person” refers to
any legal person, and may mean a natural person (individual), a legally created
person (such as an entity, trustee, or executor), or an entity (such as a
corporation, partnership, or limited liability company). The word “personnel”
refers to a person’s employees and individual contractors who are under the
person’s direct supervision. The word “affiliate” refers to an individual or
entity that controls, is controlled by, or is under common control with the
person referred to, where control means ownership of the majority of voting
interests of an entity or the right to control the policies of the entity by
means of a controlling number of seats on the entity’s governing body. The use
of the word “including” should be read to mean “including, without limitation.”
All references to monetary amounts mean United States Dollars. The term
“parties,” either in lower- or upper-case form, refers to the signatories to
this Agreement unless expressly stated as a “third party.” For notice purposes,
the words “business day,” “business hours,” or the like means Monday – Friday,
7:00 a.m. – 7:00 p.m., United States Eastern time, excluding federal public
holidays in the United States. A reference to “day” shall mean a calendar day,
unless expressly designated as a “business” day. All software and other
technology provided for Customer’s use is licensed and not sold; any references
to a sale or purchase of software or other technology means the sale or purchase
of a subscription service. Any requirement in this Agreement that a statement be
written, in writing, or a like requirement is satisfied by an email or other
digital form of writing unless expressly stated otherwise. Nouns stated in the
singular imply the plural as indicated by the context, and pronouns that are
gender specific refer to either gender. The Section captions in this Agreement
are for convenience only; they are not part of this Agreement and may not be
used to interpret the terms of this Agreement.


10.15 Third-Party Beneficiaries. There are no other third-party
beneficiaries under this Agreement.


10.16 Severability. In the event one or more of the terms of
this Agreement are adjudicated invalid, illegal, or unenforceable, the
adjudicating body may either interpret this Agreement as if such terms had not
been included, or may reform such terms to the limited extent necessary to make
them valid, legal or enforceable, consistent with the economic and legal
incentives underlying the Agreement.


10.17 Changes to the Services. Customer agrees that Customer’s
purchases are not contingent on the delivery of any future functionality or
features, or dependent on any oral or written public comments made by Uptimex.app
regarding future functionality or features. Customer acknowledges that
Uptimex.app may modify or suspend any of its Services offerings at any time. If a
modification or suspension materially and adversely affects Customer’s use of
the Services, Customer may terminate the Agreement by giving written notice of
the change no later than (30) days following the date of the change and receive
a refund of any prepaid fees as Customer’s sole and exclusive remedy.


10.18 General Representations. Each party represents that it
has validly entered into this Agreement and has the legal power to do so.


10.19 Representation by Individual Submitting the Order. The
individual submitting the Order represents that: (i) if the individual submits
the Order on his or her own behalf (including as a sole proprietor), the
individual is old enough to enter into contracts and otherwise has the legal
capacity to enter into contracts under applicable law; or (ii) if the individual
submits the Order on behalf of a company or other legal entity, the individual
has the legal power and authority to bind that entity to the Order and these
Service Terms.


10.20 Changes to Online Service Terms. Uptimex.app may amend
these Services Terms at any time in its sole discretion. Any amendment will
become effective as to Customer’s Order on the first renewal of the Order that
follows the publication of the amendment by at least thirty (30) days. If the
amendment materially and adversely impacts Customer’s use of the Services,
Customer may terminate the Agreement by giving written notice no later than
thirty (30) days following the date the amendment is published and receive a
refund of prepaid fees for unused Services as Customer’s sole and exclusive
remedy.


10.21 Entire Agreement and Order of Precedence. This Agreement
is the entire agreement between Customer and Uptimex.app regarding Customer’s use
of Services and supersedes all prior and contemporaneous agreements, proposals
or representations, written or oral, concerning its subject matter. No
modification, amendment, or waiver of any provision of these Service Terms or an
Order will be effective unless in writing and signed by the party against whom
the modification, amendment or waiver is to be asserted. The parties agree that
any preprinted term or condition stated in any business form is void. In the
event of any conflict or inconsistency among the following documents, the order
of precedence shall be: (1) the applicable Order, (2) these Services Terms, and
(3) the Documentation. Customer’s use of the Services, both during any free use
period and Customer’s Order Term, is subject to all of the terms, conditions,
and restrictions stated in Customer’s Order and these Service Terms, and any
restrictions stated on a page on the Site that is part of Customer’s Order.


11 DEFINITIONS. These terms, when capitalized, have the
meanings stated:


Agreement means these Service Terms and the Order,
collectively.


Confidential Information means any non-public information that
a party (the “recipient”) receives from or learns about the other party (the
“discloser”) or the discloser’s licensors or suppliers as a result of activities
contemplated by the Agreement that the recipient should reasonably understand to
be confidential, given the nature of the information or the circumstances of its
disclosure, but not including any information that is developed by the recipient
independently and without reference to the discloser’s Confidential Information,
or information that is or becomes available to recipient from a source other
than the discloser so long as the source did not, to recipient’s knowledge,
acquire the information as a result of a violation of a duty of confidentiality
to the discloser. Customer’s Confidential Information includes Customer
Information. Uptimex.app’s Confidential Information includes pricing and service
terms, product roadmap information, security information, and non-public
technology.


Customer Information has the meaning given in Section 2
(Customer Information).


Documentation means Uptimex.app’s general release user and
administration guides, FAQs, Whitepapers and other materials designed to explain
the use of the Services, but not including any marketing materials or publicity.


Order means either of the following that incorporates or
references these Service Terms and has been accepted by Uptimex.app : (i) an
order submitted by Customer on the Site using Uptimex.app’s online ordering
process that references a service plan published on the Site; or (ii) an order
form prepared by Uptimex.app for Customer’s signature that that describes the
features of the Uptimex.app Services, the related fees, initial term and other
transactions details, either in the Order or by reference to a plan description
published on the Site. If there are multiple Orders for Services covering a Web
Application those Orders are considered a single “Order” as that term is used in
these Service Terms. Acceptance by Uptimex.app may be made by any reasonable
means including processing of Customer’s payment, activation of the Services, or
signature on the submitted order. For clarity a transaction document that
includes the information described in this definition is an “Order” for purposes
of this Agreement even if styled “Statement of Work,” “Order Form,” “Proposal,”
or with other names.


Personal Data means any information about a natural person that
is identified or identifiable to the natural person, either alone or in
combination with other information, that Uptimex.app will process or have access
to as part of providing the Services, including any such information that is
created by means of the Services.


Malware means any virus, malware, spyware, ransomware, adware,
or other code, circuitry or other technological means that is designed to
interrupt the normal use of the Services or the systems on which any part of the
Services are installed or with which the interoperate, destroy or corrupt any
data, make data unavailable, or covertly transmit data or information.


Services means Uptimex.app’s monitoring and other services
described in an Order and Support.


Site means https://uptimex.app, or any other
website operated by Uptimex.app for the purpose of offering or providing
Services, including any subdomains.


Support means the use of the Documentation, and any technical
support.


Term means the initial term and any renewal terms,
collectively.


Uptimex.app Technology means (i) the Services, mobile
applications, user and programming interfaces and all other information,
materials, and technology provided by Uptimex.app for Customer’s use as part of
or in connection with the Services, or used by Uptimex.app to provide the
Services, (ii) all documentation related to any of the foregoing, (iii) all
modifications and derivative works to or of any of the foregoing, and (iv) all
related rights in intellectual property, worldwide.


Web Application means Customer’s website or other
Web-accessible application described in an Order.



Our details

Individual Entrepreneur Poltavtsev Mykola Mykolayovych

Identification code: 3040622173

Address: 02140, Ukraine, 02140, Kyiv city, Chavdar Street, building 1, apartment 188

Registration number: 2010350000000301948

Phone number: +380991443749

Email address: help@uptimex.app