Technical Support Agreement

IMPORTANT: THIS TECHNICAL SUPPORT AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR, IF PURCHASED OR OTHERWISE ACQUIRED BY OR FOR AN ENTITY, AN ENTITY) AND UPLO LTD. READ IT CAREFULLY. AMONG OTHER PROVISIONS, IT CONTAINS TERMINATION AND WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS TECHNICAL SUPPORT AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT USE THE SERVICES. 

1.0 Definitions.

1.1 “Agreement” means this Technical Support Agreement.

1.2 “Applicable Law” means applicable international, federal, state or local laws, statutes, ordinances,

regulations or court orders.

1.3 “Beta Version” means any version of the Software released by UPLO UK Ltd. for testing as determined by UPLO UK Ltd.

in its sole discretion, including without limitation versions of the Software designated by UPLO UK Ltd. as “BETA” or “EDGE”.

1.4 “Complimentary Support” has the meaning given in Section 2.6.2 (Eligibility for Submission of Incidents).

1.5 “UPLO.” means UPLO UK Ltd.

1.6 “UPLO UK Ltd. Customer Portal” means UPLO UK Ltd.’s customer service and Incident tracking system or such successor system as UPLO UK Ltd. may designate from time to time which is presently available at http://my.uplo.com or such other URL as UPLO UK Ltd. may designate from time to time.

1.7 “UPLO UK Ltd. Direct Licensee” means an individual or entity who is not a UPLO UK Ltd. Partner or UPLO UK Ltd. Distributor who has obtained one or more licenses for the Software directly from UPLO UK Ltd..

1.8 “UPLO UK Ltd. Distributor” means a UPLO UK Ltd. Partner who has met the requirements to become a UPLO Ltd. Distributor as determined by UPLO Ltd..

1.9 “UPLO UK Ltd. Partner” means a UPLO UK Ltd. partner who has entered into a valid and existing Partner Agreement with UPLO Ltd..

1.10 “Effective Date” has the meaning given in the Support Pricing Agreement.

1.11 “Enterprise Support” has the meaning given in Section 2.6.2 (Eligibility for Submission of Incidents).

1.12 “EULA” means the applicable End-User License Agreement for Software.

1.13 “Incident” means a request by you for assistance in addressing a single technical problem relating to the Software. UPLO UK Ltd. shall make the final determination as to what constitutes an “Incident” in its sole discretion.

1.14 “Intellectual Property Rights” means trade secret rights, rights in know-how, moral rights, copyrights, patents, trademarks (and the goodwill represented thereby), and similar rights of any type under Applicable Law, including all applications for and registrations of any of the foregoing.

1.15 “Licensed Server” or “Licensed Servers” has the meaning given in the EULA.

1.16 “Normal Business Hours” means (a) 9 am to 6 pm, five days a week in the case of technical support related Incidents; and (b) 7:00 a.m. to 7 p.m. Eastern Standard Time during business days and excluding holidays in the case of billing related Incidents. UPLO Ltd. may amend the definition of “Normal Business Hours” from time to time in its sole discretion by providing notice of such change on its website.

1.17 “Priority Support” means the Services provided by UPLO Ltd. to individuals or entities who have purchased Priority Support from UPLO Ltd..

1.18 “Scheduled Service Outage” means a period of time specified by UPLO Ltd. during which UPLO Ltd. will not provide the Services.

1.19 “Services” means the technical support services provided by UPLO Ltd. in connection with this Agreement whether such services are provided via email, telephone support, the UPLO Ltd. website (including without limitation the UPLO Ltd. Customer Portal, documentation, Frequently Asked Questions or discussion forums located on the website) or by any other means.

1.20 “Software” means the UPLO Ltd. software program(s) for which you are seeking the Services, and corresponding documentation, source code, object code, Updates, user interfaces (including without limitation any web-based interfaces), printed materials and online or electronic documentation, excluding any third party components, such as open source software (WordPress, WordPress plugins, analysis tools, commercial hosting platforms and ancialiary services.

1.21 “Standard Support” has the meaning given in Section 2.6.2 (Eligibility for Submission of Incidents).

1.22 “Submissions” has the meaning given in Section 3.5 (Submissions).

1.23 “Support Fees” has the meaning given in Section 4 (Support Fees).

1.24 “Support Pricing Agreement” means, as applicable, (a) the entered into between you and UPLO Ltd. for the provision by UPLO Ltd. of the Complimentary Support, Telephone Support or Priority Support, as applicable, which sets forth (among other things) the term, any applicable support fees and the number of Incidents you may submit under this Agreement; (b) the Pricing and Term Agreement entered into between you and UPLO Ltd. with respect to the Software which sets forth (among other things) the term, any applicable Support Fees and the number of Incidents you may submit under this Agreement; (c) the term, termination and the technical support provisions of UPLO Ltd.

Partner Agreement entered into between you and UPLO Ltd; or (d) the term, termination and the technical support provisions of any agreement entered into between you and a UPLO Ltd. Direct License, UPLO Ltd. Partner or UPLO Ltd. Distributor for the provision of technical support services related to the Software. The Support Pricing Agreement is hereby incorporated by reference and made a part of this Agreement as though fully set forth herein.

1.25 “Telephone Support” means the Services provided by UPLO Ltd. over the telephone to individuals or entities who have paid the Support Fees applicable to telephone support, including smartphone messaging applications.

1.26 “Term” has the meaning given in the Support Pricing Agreement.

1.27 “Territory” means the world, except to the extent that the provision of the Services or the use or distribution of the Software in certain countries or regions would cause either party to violate Section 9.13 (Export Controls).

1.28 “Third Party Users” means authorized end users of the Software on Licensed Servers.

1.29 “Trademarks” means all domestic and international trademarks, service marks, logos, trade names, tradedress, including all goodwill represented by each of the foregoing, whether registered or unregistered, of UPLO UK Ltd. including without limitation: UPLO Ltd. UPLO Ltd. logo,

1.30 “Unscheduled Service Outage” means a period of time during which UPLO Ltd. is unable to provide the Services or during which it is not commercially reasonable for UPLO Ltd. to provide the Services as a result of unforeseen circumstances including but not limited to force majeure events such as those set forth in Section 9.1

(Force Majeure).

1.31 “Updates” means any bug fixes, patches and other modifications of the Software provided by UPLO Ltd. and 3rd party components.

1.32 “Virtual Private Server” means a virtual server operating on single physical server upon which multiple virtual servers may operate.

1.33 “You” or “Your” means or refers to the individual or entity entering into this Agreement with UPLO Ltd, whether or not such terms are capitalized in this Agreement.

2.o Services.

2.1 Provision of Services by UPLO Ltd.. Subject to the terms and conditions of this Agreement, UPLO Ltd. shall use commercially reasonable efforts to provide you with the Services during the Term provided that you have not exceeded (a) the number of Incidents set forth by the Support Pricing Agreement; or (b) a commercially reasonable number of incidents as determined by UPLO Ltd. if the Support Pricing Agreement does not specify the maximum number of Incidents. Notwithstanding the foregoing, UPLO Ltd. may in its sole discretion elect to provide, to not provide or to provide on a limited basis (a) the Services for Complimentary Support; and (b) the Services for development versions of the Software.

2.2 Normal Business Hours. UPLO Ltd. shall use commercially reasonable efforts to provide the Services during Normal Business Hours, except in the event of a Scheduled Service Outage or an Unscheduled Service Outage.

2.3 Scope of Services. UPLO Ltd. will provide the Services only in connection with Incidents that it determines are related to the Software or any third-party applications included with the Software. UPLO Ltd. will not provide the Services for Incidents that it determines are related to third-party software not included with the Software, operating systems, hardware or networks unless UPLO Ltd. determines, on a case-by-case basis and in its sole discretion, that such issues are reasonably related to the Software or any third-party applications included with the Software.

2.4 Web, Email and Telephone Support. UPLO Ltd. shall use commercially reasonable efforts to provide the Services via its website using the UPLO Ltd. Customer Portal or via email communications. UPLO Ltd. will provide Telephone Support on a per-Incident basis if you pay the additional Support Fee as set forth in Section 4 (Support Fees). One Incident of Telephone Support can involve multiple telephone communications until UPLO Ltd. closes the Incident pursuant to Section 2.8 (Resolution of Incidents). UPLO Ltd. may on a case-by-case basis and in its sole discretion elect to provide support via telephone free of charge if it deems it necessary to do so in the event of a complicated or time-consuming Incident. UPLO Ltd. shall provide the Services, and all Incidents shall be submitted, in the English language only.

2.5 Location of Services. UPLO Ltd. shall use commercially reasonable efforts to provide the Services at any facility it designates for the provision of such Services. The Licensed Server for which a particular Incident is submitted may be located in anywhere in the Territory. UPLO Ltd. shall not provide the Services “on site.”

2.6 Submission of Incidents.

2.6.1 UPLO Ltd. Customer Portal. Except for Telephone Support Incidents which must be purchased via the UPLO Ltd. website, all Incidents must be submitted via the UPLO Ltd. Customer Portal or, in the case of UPLO Ltd. Partners and UPLO Ltd. Distributors, the Managed Interface (as defined in the Partner Agreement).

2.6.2 Eligibility for Submission of Incidents. If you are a UPLO Ltd. Partner or UPLO Ltd. Distributor, Incidents you submit by shall be deemed “Enterprise Support.” If you are a UPLO Ltd. direct customer, Incidents you submit by shall be deemed “Standard Support.” If you are an individual or entity (other than a UPLO Ltd. Partner, UPLO Ltd. Distributor or UPLO Ltd. Direct Client), Incidents you submit shall be deemed “Complimentary Support.” If you entered into a support agreement with a UPLO Ltd. Partner or UPLO Ltd. Distributor, you may obtain Enterprise Support if you submit your Incident through such UPLO Ltd. Partner or UPLO Ltd. Distributor. You may obtain Priority Support by paying the applicable Support Fees for Priority Support.

2.6.3 Support Logins and Support Access Numbers. Subject to the terms and conditions of the Partner

Partner Agreement, UPLO Ltd. Partners and UPLO Ltd. Distributors may use the Managed Interface (as defined in the Partner Agreement) to provision usernames and passwords for the UPLO Ltd. Customer Portal which can be used for submitting Incidents by their respective staff.

2.6.4 Submission Details. In order for UPLO Ltd. to provide the Services to you, you must provide all information requested by UPLO Ltd. with respect to each Incident. If you fail to provide sufficient detail regarding the Incident, UPLO Ltd. shall not be obligated to provide the Services to you and the limited warranty of Section 6.2 (Limited Warranty) shall not apply to the Incident.

2.7 Service Levels.

2.7.1 Priority of Support. UPLO Ltd. will use commercially reasonable efforts prioritise its response to Incidents depending upon the level of support applicable to such Incidents in the following order: Ticketed Support, Enterprise Support, Priority Support, Standard Support and Complimentary Support. Notwithstanding the foregoing sentence, UPLO Ltd. may elect to prioritise its response to a given Incident depending upon the relative severity of the support issues reported in other Incidents pending in the UPLO Ltd. Customer Portal regardless of the level of support applicable to such Incidents.

2.7.2 Escalation of Incidents. UPLO Ltd. maintains internal escalation procedures with respect to Incidents. In the event that a UPLO Ltd. representative is unable to find a resolution to the Incident (assuming a resolution is commercially feasible), UPLO Ltd. will escalate the Incident in accordance with its internal escalation procedures.

UPLO Ltd. may change its internal escalation system from time to time within its sole discretion.

2.7.3 Support Levels. Subject to Section 2.7.1 (Priority of Support), UPLO Ltd. will use commercially reasonable efforts to resolve all Incidents as soon as reasonably possible, but does not make any representations or warranties as to the timeliness of the resolution of any Incident. UPLO Ltd. shall resolve all Incidents subject to Section 2.8.

(Resolution of Incidents).

2.8 Resolution of Incidents. In the event that UPLO Ltd. resolves your Incident, or makes a determination that no resolution is commercially feasible, UPLO Ltd. will provide you notice through the UPLO Ltd. Customer Portal and close the Incident on such system. Alternatively, UPLO Ltd. may determine whether a support issue raised in an Incident constitutes a bug in the Software (“Software Bug”) or a request for a new feature (“Feature Request”). If UPLO Ltd. determines that a support issue raised in an Incident constitutes a Software Bug or a Feature Request, UPLO Ltd. will close the Incident and determine whether such Software Bug or Feature Request should be forwarded to UPLO Ltd.’s development team for further consideration and possible correction or inclusion into the Software. Any information, feedback, ideas or suggestions you provide to UPLO Ltd. with respect to a Software Bug or Feature Request shall be deemed a Submission. UPLO Ltd. shall in its sole discretion determine: (a) whether an Incident has been resolved; (b) whether a resolution is commercially feasible; (c) whether a support issue raised in an Incident constitutes a Software Bug or Feature Request; and (d) whether or not and when to close an Incident. UPLO Ltd. will not provide the Services for closed Incidents.

2.9 Provision of Services to Third Party Users.

2.9.1 Third Party User Incidents. If you are a UPLO Ltd. Direct Client, UPLO Ltd. Partner or UPLO Ltd. Distributor, you may submit Incidents on behalf of Third Party Users and UPLO Ltd. will provide the Services with respect to such Incidents; provided that (a) you must enter into an agreement with each Third Party User concerning UPLO Ltd.’s provision of the Services with respect to such user’s Incidents (“Third Party Support Agreement”); (b) as part of such Third Party Support Agreement each Third Party User must agree to the Flow-Through Provisions set forth in Section 2.9.2 as a condition of UPLO Ltd.’s provision of the Services with respect to the Third Party User’s Incident; and (c) the Third Party Support Agreement shall not offer or provide services greater in scope and duration than the Services provided by the Partner Agreement or the Pricing and Term Agreement, as applicable.

2.9.2 Flow-Through Provisions. Any Third Party Support Agreement must contain:

The Third Party User’s acknowledgement and agreement that UPLO Ltd. owns all right, title and interest in and to the UPLO Ltd. IP Rights substantially similar to Section 3.1 (Ownership);

a notice substantially similar to the disclaimer set forth in Section 6.3 (Disclaimer) that UPLO Ltd. disclaims all warranties and representations with respect to the Services;

a limitation of liability substantially similar to that set forth in Section 7 (Limitation of Liability) for the benefit of UPLO Ltd.;

The Third Party User’s acknowledgement and agreement that UPLO UK Ltd.’s obligation to provide the Services shall automatically expire without notice upon the expiration or termination of this Agreement or the UPLO UK Ltd. EULA for any reason whatsoever;

The Third Party User’s acknowledgement and agreement that UPLO Ltd. may in its sole discretion terminate or suspend provision of the Services to you or any Third Party User in the event of (i) any breach of this Agreement or a UPLO Ltd. EULA by you or (ii) any breach by the Third Party User or any provision concerning UPLO Ltd. or the Services in any Third Party Support Agreement.

The Third Party User’s acknowledgement and agreement that UPLO Ltd. is a third party beneficiary of the Third Party Support Agreement between you and the Third Party User with the full right to enforce the provisions of the Third Party Support Agreement as they pertain to UPLO Ltd. and the Services;

The Third Party User’s acknowledgement and agreement that concerning your disclosure to UPLO Ltd. and UPLO Ltd.’s collection of the Support Data, including without limitation any Support Data that may personally identify the Third Party User; and The Third Party User’s waiver of any and all claims (whether under law, equity or any other theory of liability) against UPLO Ltd. and its affiliates that may arise from a Third Party User’s inability to use the Services in the event (i) of the expiration or termination of this Agreement or the EULA for any reason whatsoever; or (ii) that UPLO Ltd. suspends provision of the Services as set forth in this Section 2.9.

Your right to submit Incidents on behalf of Third Party Users and receive the Services with respect to such Incidents is conditioned upon your compliance with the terms of this Section 2.9. Upon request from UPLO Ltd., you shall provide UPLO Ltd. with copies of any Third Party Support Agreements. UPLO Ltd. shall also have the right (but not the obligation) to notify any Third Party Users that UPLO Ltd. will or has terminated or suspended the provision of the Services due to the termination or expiration of this Agreement or a breach of this Agreement. In the event that UPLO Ltd. notifies Third Party Users pursuant to the preceding sentence, UPLO Ltd. reserves the right to offer products and services, including without limitation the Software and Services, to any Third Party Users affected by such termination or expiration (or to refer such third parties to other UPLO Ltd. licensees or affiliates). Except as set forth in this Section 2.9, you may not submit Incidents to UPLO Ltd. on behalf of any third party.

2.10 Support Data. In order to provide the Services to you, UPLO Ltd. may collect information from you including but not limited to: (a) IP addresses, usernames and passwords necessary to login to SSH, WebHost Manager and the Licensed Server’s root directory; (b) the usernames and passwords necessary to login into any affected accounts including email accounts, UPLO Ltd. accounts, MySQL accounts and other accounts; and (c) other information that you voluntarily supply or that UPLO Ltd. requests in order to resolve your Incident ((a) through (c) collectively, “Support Data”). UPLO Ltd. will use commercially reasonable efforts to preserve the security of the Support Data by using reasonable physical and electronic security measures (except to the extent  UPLO Ltd. is required or permitted to disclose, access or use such information by Applicable Law), but UPLO Ltd. cannot guarantee the security of such data. To the extent that Applicable Law requires that you obtain any consents, permissions or licenses from third parties (including Third Party Users) or to give any notices or disclaimers to third parties (including Third Party Users) prior your disclosure of Support Data to UPLO Ltd., you agree to comply with such Applicable Laws prior your disclosure of Support Data to UPLO Ltd..

2.11 License Exchange. You agree that this the terms and conditions of this Agreement and the Support Pricing Agreement shall supersede any prior agreement and between you and UPLO UK Ltd. applicable to any support services provided by UPLO Ltd. to you with respect to the Software.

3.0 Intellectual Property Rights.

3.1 Ownership. UPLO Ltd. owns all right, title and interest, including all Intellectual Property Rights, in and to, (a) the Software; (b) the Trademarks; (c) the Services; and (d) any and all Submissions (collectively, “UPLO Ltd. IP Rights”).

3.2 Trademarks; Domain Names. This Agreement does not authorise you to use the Trademarks. If you wish to use the Trademarks, you must obtain a written license to use the Trademarks from UPLO Ltd.. Without limiting the foregoing, you are required to comply with the UPLO Ltd’s Trademark Usage Policy, which may be updated by UPLO Ltd. in its sole discretion from time to time. Additionally, you will not (a) assert any Intellectual Property Right in the Trademarks or in any element, derivation, adaptation, variation or name thereof;

(b) contest the validity of any of the Trademarks; (c) contest UPLO Ltd.’s ownership of any of the Trademarks; or (d) in any jurisdiction, adopt, use, register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, or as a domain name or sub-domain name, any trademarks, or any word, symbol or device, or any combination confusingly similar to, or which incorporates in whole or in part, any of the Trademarks.

3.3 No Implied License or Ownership. Nothing in this Agreement or the performance thereof, or that might otherwise be implied by law, will operate to grant you any right, title or interest, implied or otherwise, in or to the UPLO Ltd. IP Rights.

3.4 No Contest. You acknowledge and agree that the UPLO Ltd. IP Rights are and shall remain the sole and exclusive property of UPLO Ltd. You agree that you shall never oppose, seek to cancel, or otherwise contest UPLO Ltd.’s ownership of the UPLO Ltd. IP Rights or act in any manner that would or might conflict with or compromise UPLO Ltd.’s ownership of the UPLO Ltd. IP Rights, or similarly affect the value of the UPLO Ltd. IP Rights. Whenever requested by UPLO Ltd., you shall execute such documents as UPLO Ltd. may deem necessary or appropriate to confirm, maintain or perfect UPLO Ltd.’s ownership of the UPLO Ltd. IP Rights. In the event UPLO Ltd. is unable, after reasonable effort, to secure your signature on any document or documents needed to apply for or to confirm, maintain or perfect UPLO Ltd.’s ownership of the UPLO Ltd. IP Rights for any other reason whatsoever, you hereby irrevocably designate and appoint UPLO Ltd. as your duly authorized attorney-in-fact, to act for and on your behalf and stead to execute and sign any document or documents and to do all other lawfully permitted acts to confirm, maintain or perfect UPLO Ltd.’s ownership of the UPLO Ltd. IP Rights with the same legal force and effect as if executed by you. In the event you become aware that any third party is, or may be, infringing the UPLO Ltd. IP Rights, you agree to notify UPLO Ltd. of such fact.

3.5 Submissions. With respect to any feedback, suggestions or ideas (“Submissions”) that you submit to

UPLO Ltd. concerning the Software, Services, or any of UPLO Ltd.’s products or services, you agree that: (a) your Submissions will automatically become the property of UPLO Ltd., without any compensation to you; (b) UPLO Ltd. may use or redistribute the Submissions for any purpose and in any way; (c) UPLO Ltd. is not obligated to review any Submissions; and (d) UPLO Ltd. is not obligated to keep any Submissions confidential.

4.0 Support Fees.

As a condition of the provision of the Services by UPLO Ltd. under this Agreement, you shall pay UPLO Ltd. the amounts set forth in your Support Pricing Agreement (“Support Fees”) in accordance with the payment terms contained therein. All Support Fees are subject to change at any time.

5.0 Term and Termination.

5.1 Term. This Agreement shall commence on the Effective Date and shall automatically expire at the end of the Term.

5.2 Termination. UPLO Ltd. may terminate this Agreement (a) in the event of your breach of this Agreement (or a Third Party User’s breach of a provision of a Third Party Support Agreement or Third Party Support Agreement relating to the Service, Software or UPLO Ltd.) upon 30 days notice to you if such breach remains uncured after the expiration of the 30 day notice period; (b) as set forth in Section 2.9 (Provision of Services to Third Party Users); or (c) immediately without notice in the event of your material breach of this Agreement (or a Third Party User’s breach of a material provision of a Third Party Support Agreement or Third Party Support Agreement relating to the Service, Software or UPLO Ltd.). You acknowledge and agree that any breach by you or any Third Party User of the following provisions of the Agreement or any related provisions of a Third Party Support Agreement or Third Party Support Agreement shall each constitute a material breach: (i) any conduct inconsistent with the UPLO Ltd. IP Rights s set forth in Section 3 (Intellectual Property Rights); (ii) any purported or attempted assignment, transfer, sale or other disposition or delegation of this Agreement or your rights and obligations with respect to this Agreement in violation of Section 9.8 (Assignment); (iii) any breach of Section 4 (Payment); and (iv) any breach of your representations and warranties under Section 6.1 (Mutual Representations). Additionally, a material breach by you of any agreement or contract between you and UPLO Ltd., including without limitation a breach of UPLO Ltd.’s Trademark Usage Policy, any applicable EULA or the Partner Agreement shall be deemed a material breach of this Agreement and shall give rise to UPLO Ltd.’s right to terminate as set forth in this Section 5.2. The foregoing list of material breaches is a nonexclusive list.

5.3 Survival. Sections 1 (Definitions), 3 (Intellectual Property Rights), 4 (Support Fees), 5 (Term and Termination), 6.3 (Disclaimer), 7 (Limitation on Liability), 8 (Indemnification) and 9 (Miscellaneous) shall survive termination or expiration of this Agreement for any reason.

6.0 Representations; Warranties; Disclaimer.

6.1 Mutual Representations. Each party hereto represents and warrants to the other party that: (a) such party has the full right, power and authority to enter into an Agreement on behalf of itself and to undertake to perform the acts required of it hereunder; (b) the execution of this Agreement by such party, and the performance by such party of its obligations and duties to the extent set forth hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; (c) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its representations, warranties, terms and conditions; and (d) such party will comply with all Applicable Laws related to the Services and the performance of its obligations under this Agreement.

6.2 Limited Warranty. UPLO Ltd. will use commercially reasonable efforts to resolve any Incident for which you have purchased Support. If UPLO Ltd. determines, pursuant to Section 2.8 (Resolution of Incidents), that it is us unable to resolve the Incident in a commercially feasible manner, UPLO Ltd. will refund any Support Fees associated solely with the support incident.

6.3 Disclaimer.Except as set forth in the limited warranty of section 6.2, the services are provided “as is” and UPLO Ltd. hereby disclaims all warranties of any kind, whether express or implied, relating to the services, or the accuracy, timeliness, completeness, or adequacy of the services and any data accessed therefrom, including the implied warranties of title, merchantability, satisfactory quality, fitness for a particular purpose, and non-infringement. UPLO Ltd. does not warrant that the services are or shall be error-free or will be provided without interruption. If the services are defective, you assume the sole responsibility for the entire cost of all repair or injury of any kind, even if UPLO Ltd. has been advised of the possibility of such a defect or damages.

6.3.1 No oral or written information or advice given by UPLO Ltd., its affiliates, licensees, dealers, sub-licensors, agents or employees shall create a warranty or in any way increase the scope of any warranty provided in section 6.2.

6.3.2 Some jurisdictions do not allow restrictions on implied warranties so some of these limitations may not apply to you.

7.0 Limitation of Liability.

7.1 Lost Profits; Consequential Damages.To the maximum extent permitted by applicable law, UPLO Ltd. will not be liable for any lost profits, costs of procurement of substitute goods or services, damages for the inability to use equipment or access data, business interruption, or for any other indirect, special, incidental, punitive or consequential damages arising out of or in connection with this agreement, however caused, and under whatever cause of action or theory of liability brought (including, without limitation, under any contract, negligence or other tort theory of liability) even if UPLO Ltd. has been advised of the possibility of such damages.

7.2 Total Cumulative Liability; Exclusive Remedy.Except for amounts owed by you to UPLO Ltd. under section 4, to the maximum extent permitted by applicable law, UPLO Ltd.’s aggregate liability for direct damages, under this agreement (cumulatively) shall be limited to the total fees collected by UPLO Ltd. for an individual piece of software that is the subject of an incident under this agreement; provided, however, that for any breach of the limited warranty in section 6.2 your sole and exclusive remedy and UPLO Ltd.’s entire liability shall be for UPLO Ltd. to refund the support fees as set forth in that section.

The remedies in the foregoing sentence are the sole and exclusive remedies available to you for breach of express or implied warranties with respect to the services.

8.0 Indemnification.

8.1 You shall indemnify, defend and hold harmless UPLO Ltd. and its directors, officers, staff, employees and agents and their respective successors, heirs and assigns and UPLO Ltd. affiliates (and their its directors, officers, staff, employees and agents and their respective successors, heirs and assigns) (collectively, the “UPLO Ltd. Parties”) from and against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) incurred by or imposed upon the UPLO Ltd. Parties or any one of them in connection with any claims, suits, actions, demands or judgments (“Claims”) related directly or indirectly to or arising out of (a) a breach of your representations, warranties or obligations under this Agreement; (b) in the event that you submit Incidents on behalf of Third Party Users pursuant to Section 2.9 (Provision of Services to Third Party Users), (i) a breach of a Third Party User’s representations, warranties or obligations under any provisions in a Third Party Support Agreement relating to UPLO Ltd, the Software or the Services; and (ii) any Claims based upon or arising from any allegation that a Third Party User was harmed due to any termination or suspension of the Services to such user by UPLO Ltd. pursuant to the terms and conditions of this Agreement; provided, however, that in any such case UPLO Ltd. or its affiliates, as applicable, (x) provide you with prompt notice of any such claim; (y) permit you to assume and control the defense of such action upon your written notice to UPLO Ltd. of your intention to indemnify; and (z) upon your written request, and at no expense to UPLO Ltd. or its affiliates, provide to you all available information and assistance reasonably necessary for you to defend such claim. You will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to the UPLO Ltd. Parties, without UPLO Ltd.’s prior written consent, which will not unreasonably be withheld. You will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by UPLO Ltd. or it affiliates in connection with or arising from any such claim.

9.0 Miscellaneous.

9.1 Force Majeure. No party will be liable for any failure or delay in performance of any of its obligations hereunder if such delay is due to acts of God, fires, flood, storm, explosions, earthquakes, general Internet outages, acts of war or terrorism, riots, insurrection or intervention of any government or authority; provided, however, that any such delay or failure will be remedied by such party as soon as reasonably possible. Upon the occurrence of a force majeure event, the party unable to perform will, if and as soon as possible, provide written notice to the other parties indicating that a force majeure event occurred and detailing how such force majeure event impacts the performance of its obligations.

9.2 Independent Contractors. It is the intention of the parties that UPLO Ltd. and you are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between UPLO Ltd. and you.

9.3 Choice of Law; Venue; Jurisdiction. This Agreement will be governed by and interpreted in accordance with the laws of the United Kingdom without regard to the conflicts of laws principles thereof. Any dispute or claim arising out of or in connection with the Agreement shall be finally settled and exclusively by courts located in the United Kingdom. For purposes of this Agreement, you and UPLO Ltd. hereby irrevocably consent to exclusive personal jurisdiction and venue in the United Kingdom.

9.4 Entire Agreement. This Agreement, together with all Exhibits hereto, represents the entire agreement between the parties with respect to the subject matter hereof and thereof and will supersede all prior agreements and communications of the parties, oral or written.

9.5 Basis of Bargain. Section 6.2 (Limited Warranty), Section 7 (Limitations on Liability; Exclusive Remedies) and Section 8 (Indemnification) are fundamental elements of the basis of the agreement between UPLO Ltd. and you and shall inure to the benefit of UPLO Ltd.. UPLO Ltd. would not be able to provide the Software on an economic basis without such limitations.

9.6 Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not effect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.

9.7 Amendment or Modification. This Agreement may not be amended, modified or supplemented by the parties in any manner, except by an instrument in writing signed by UPLO Ltd. and you.

9.8 Assignment. This Agreement may not be assigned, transferred, delegated, sold or otherwise disposed of, including without limitation by operation of law, other than as expressly set forth in this Section 9.8. This Agreement may be assigned, transferred, delegated, sold or otherwise disposed of in its entirety: by UPLO Ltd. in its sole discretion. In addition, UPLO Ltd. may delegate its performance under this Agreement in whole or in part to one or more affiliates, provided that UPLO Ltd. will remain liable and responsible for any performance or obligation so delegated. A party’s permitted successors or assignees must agree as a condition precedent to any assignment, transfer or delegation to fully perform all applicable terms and conditions of this Agreement. No party may assign this Agreement to any entity that lacks sufficient assets and resources to continue to perform, to contractually required standards, all assigned obligations for the remainder of the Term. This Agreement will be binding upon and will inure to the benefit of a party’s permitted successors and assigns. Any purported assignment, transfer, delegation, sale or other disposition in contravention of this Section 9.8, including without limitation by operation of law, is null and void.

9.9 Waiver. Any of the provisions of this Agreement may be waived by the party entitled to the benefit thereof. No party will be deemed, by any act or omission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the waiving party, and then only to the extent specifically set forth in such writing. A waiver with reference to one event will not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event.

9.10 Remedies Cumulative. Except as expressly set forth herein, no remedy conferred upon the parties by this Agreement is intended to be exclusive of any other remedy, and each and every such remedy will be cumulative and will be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.

9.11 No Third Party Beneficiaries. This Agreement is made for the benefit of the parties only, and this Agreement is not for the benefit of, and was not created for the benefit of, any third parties including, without limitation, any Third Party Users.

9.12 Notices. All notices or questions relating to this Agreement shall be directed to: UPLO Ltd, 5 Chigwell Road, London,E18 1LR, United Kingdom, Attention: Legal Dept. Any notice required to be given under this Agreement shall be deemed given by UPLO Ltd. when sent to you by email, telephone, fax or mail to the contact information supplied by you to UPLO Ltd. in  the Support Pricing Agreement or the Partner Agreement. You may update such information from time to time upon written notice to UPLO Ltd. at the address in this Section 9.12. Any failure by you to provide UPLO Ltd. with updated contact information will not invalidate the effectiveness of any notice sent by UPLO Ltd. to the contact information previously supplied by you.

9.13 Export Controls. The parties agree to comply fully with all Applicable Laws of the United Kingdome, or of any foreign government to or from where a party is shipping, to in connection with the import, export or re-export, directly or indirectly, of the services in connection with this Agreement.

9.14 Time-Limited Claims. Regardless of any Applicable Law to the contrary, you agree that any claim or cause of action arising out of or related to the Software or this Agreement, must be filed within one year after such claim or cause of action arose or be forever barred.