1. Applicability.

This Agreement shall apply to Customer’s use of Upwave’s online brand analytics software platform (“Platform”) and associated professional services (collectively “Services”) as ordered by Customer under any ordering document (including any online form presented through the Platform) (“Order”).   In the event of a conflict between this Agreement and an Order, this Agreement shall control (except to the extent the Order specifically provides that its provisions shall supersede this Agreement). 

1. Right to Use the Platform.

2.1 Subject to the restrictions set forth herein, and subject to an Order, Upwave grants to Customer a limited, non-transferable, non-exclusive, revocable, worldwide right to permit those individuals authorized by Customer or on Customer’s behalf, and who are Customer’s employees, agents or contractors (“Users”), to access and use the Platform for its own internal business operations for the term of the applicable Order and subject to the terms of this Agreement.  Customer shall be liable for all acts and omissions of its Users in breach of this Agreement.

2.2 Except as expressly authorized by Upwave in writing, Customer shall not and shall not permit its Users to, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Platform, including any software, documentation or data related to or provided with the Platform; (b)  display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit,  assign, or otherwise transfer or encumber rights to the Platform; (c) use or access the Platform to build or support, and/or assist a third party in building or supporting, products or services competitive to Upwave; (d) remove any proprietary notices or labels from the Platform; (e) use the Platform for the operation of a service bureau or time-sharing service; or (f) otherwise use the Platform or Services outside the scope of the license granted herein or in breach of applicable laws, rules or regulations or third party rights. 

2.3 Customer shall not knowingly use the Platform in any manner that could damage, disable, overburden, impair or otherwise interfere with the Platform. Customer shall be responsible for maintaining the security of its account access and passwords. 

1. Customer is responsible for the content, information, data and other materials it provides to Upwave or otherwise allows Upwave to access via its properties in connection with the Services, including without limitation ad exposure data (collectively, “Customer Content”). Customer represents and warrants that it will not provide or otherwise allow Upwave to access any Customer Content which (a) it does not own or have sufficient rights to use as anticipated herein; (b) infringes on third party rights, including without limitation, any intellectual property rights, including any trademark, copyright, patent or trade secret rights (collectively “Intellectual Property Rights”) or any publicity or privacy rights; (c) directly or indirectly requests that a survey end user provide any information which can be used to identify the end user, including without limitation, name, address, email address, telephone number, or payment information; (d) poses or creates a privacy or security risk to any person; e) is fraudulent, misleading, or untruthful; or (f) violates any applicable local, state, national or international law, or any regulations having the force of law. Upwave reserves the right to modify, remove, suspend or delete any Customer Content or any portion thereof, and related Services, which Upwave determines in its sole discretion violates any of the foregoing.

2.5 Upwave may immediately suspend Customer’s password, account, and access to the Platform and Services if (a) Customer fails to make payment due within fifteen (15) business days after Upwave has provided Customer with notice of such failure; or (b) Customer breaches this Agreement. Any suspension by Upwave of the Platform and Services under the preceding sentence shall not relieve Customer of its payment obligations under this Agreement.

1. Proprietary and Privacy Rights.

3.1 Subject to the limited license set forth herein, Customer owns all right, title and interest in and to the Customer Content. By providing any Customer Content to Upwave, including through the Platform, Customer hereby grants Upwave a non-exclusive, worldwide, royalty-free, sub-licensable, transferable, license to copy, publicly display, transmit, perform, distribute, store, modify and otherwise use the Customer Content in connection with the Platform and provision of the Services.  Notwithstanding anything to the contrary, Upwave reserves the right to create aggregate, de-identified reports based on the Customer Content for benchmarking purposes.

3.2 Except for the Customer Content, Upwave owns all right, title and interest in and to the Platform and Services and all “Upwave Content” therein, which shall mean all documents, content, data, responses, know-how, methodologies, software, and other materials that are provided, collected or used by Upwave in connection with performing the Services.  All suggestions, enhancements requests, feedback, recommendations or other input provided by Customer or any other party relating to the Platform or Services (“Feedback”) shall be owned by Upwave without the need for additional compensation, and Customer hereby assigns all rights to any Feedback to Upwave. Any rights not expressly granted herein are reserved by Upwave.

3.3 To the extent that Upwave provides Customer with personal information, as is defined by applicable data privacy laws, in connection with the Services hereunder, Customer agrees that it shall not sell or share, as is defined under applicable data protection laws, such personal information.  Customer agrees that Upwave is only providing personal information to Customer hereunder for the limited business purpose of analyzing its brand marketing.  Customer shall not retain, use or disclose such personal information outside of the direct relationship between Upwave and Customer or other than for the business purpose expressly set forth herein or as otherwise permitted by applicable data privacy laws. Customer shall adhere to instructions from Upwave and cooperate with Upwave in meeting any of Upwave’s obligations under applicable data privacy laws. Customer shall not combine the personal information with other personal information except as is necessary for the business purpose specified herein. Customer agrees that it shall comply with all applicable data privacy laws and provide the same level of privacy protection as is required by businesses subject to those laws, including implementing reasonable security procedures and practices appropriate to the nature of the personal information to protect the personal information from unauthorized or illegal access, destruction, use, modification, or disclosure and ensuring all persons processing such personal information are subject to a duty of confidentiality. Customer shall promptly without undue delay inform Upwave of any data subject request made pursuant to applicable data privacy laws and cooperate with and provide Upwave with the information necessary for Upwave to comply with the request. Contractor must delete the personal information after the completion of the Services, unless retention is necessary for a lawful business purpose. Customer grants Upwave the right to take reasonable and appropriate steps to ensure that Customer uses personal information received hereunder in a manner consistent with the Customer’s obligations under applicable data privacy laws including, but not limited to, ongoing manual reviews and automated scans and regular assessments, audits, or other technical and operational testing at least once every 12 months. Customer shall notify Upwave immediately after it makes a determination that it can no longer meet its obligations under applicable data protection laws. Customer grants Upwave the right, upon notice, to take reasonable and appropriate steps to stop and remediate Customer’s unauthorized use of personal information. Customer shall ensure to impose these same requirements on any of its subcontractors through a written contract.  Customer hereby certifies that it understands and shall comply with its privacy obligations and restrictions herein.

1. Billing and Payment.

4.1 Customer shall pay all fees as provided for in an applicable Order (“Fees”) in accordance with the terms of the Order. Unless otherwise provided for in an Order, Fees are due 30 days after receipt of an invoice. If you dispute any charges, you must notify Upwave in writing within 15 days of receipt of the invoice.

4.2 Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Upwave’s net income. All Fees are non-cancelable and non-refundable, except as expressly provided herein. All Fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes based on Upwave’s income), even if such amounts are not listed on an Order. Customer shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the parties.

1. Representations & Warranties; Disclaimer of Warranties.

5.1 Each party represents and warrants to the other party that it has the power and authority to enter into this Agreement. 

5.2 Upwave warrants to Customer that it will (a) perform the Services substantially in accordance with its documentation under normal use; and (b) provide the Services in a manner consistent with generally accepted industry standards. Customer must notify Upwave of any warranty deficiencies within thirty (30) days from performance of the relevant Services in order to receive warranty remedies, which are outlined in section 5.3 below. Upwave shall not be responsible for any delays due to Customer (or Customer’s advertisers, as applicable). 

5.3 For breach of the express warranty set forth above, Customer’s exclusive remedy shall be the re-performance of the deficient Services. If Upwave cannot re-perform such deficient Services as warranted, Customer shall be entitled to recover a pro-rata portion of the Fees paid to Upwave for such deficient Services, and such refund shall be Upwave’s entire liability.

5.4 The Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Upwave’s reasonable control, but Upwave shall use reasonable efforts to provide advance notice in writing, including via email, of any scheduled unavailability of the Platform.

5.5 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, UPWAVE AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE PLATFORM AND SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. UPWAVE AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE PLATFORM OR SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE PLATFORM OR SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, UPWAVE AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE PLATFORM OR SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE, PLATFORM OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT NEITHER UPWAVE NOR ITS THIRD PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE PLATFORM OR SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. UPWAVE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY UPWAVE, THE PLATFORM AND SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” BASIS.

1. Indemnification.

6.1 Customer shall defend, indemnify, and hold Upwave harmless from and against any liabilities, losses, damages, claims, actions or demands, including without limitation reasonable legal fees, arising or resulting from Customer’s breach or alleged breach of this Agreement, negligent acts or willful misconduct. 

6.2 Upwave shall defend, indemnify, and hold Customer harmless from and against any liabilities, losses, damages, claims, actions or demands, including without limitation reasonable legal fees, arising or resulting from a claim that the Upwave Platform infringes on a third party’s Intellectual Property Rights. 

6.3 The indemnifying party’s indemnification obligations under this Section 6 are conditioned upon the indemnified party (a) giving prompt written notice of the claim to the indemnifying party (provided that failure to provide prompt written notice to the indemnifying party will not alleviate an indemnifying party’s obligations to the extent any associated delay does not materially prejudice or impair the defense of the related claims), (b) granting the indemnifying party the option to take sole control of the defense (including granting the indemnifying party the right to select and use counsel of its own choosing), and (c) giving prior written approval, which shall not be unreasonably withheld or delayed, of any settlement that imposes any obligation or liability whatsoever on the indemnified party, and (d) providing reasonable cooperation to the indemnifying party, at the indemnifying party’s request and expense, in the defense or settlement of the claims.

1. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW AND NO MATTER THE THEORY OF LIABILITY, EXCEPT FOR LIABILITY ARISING FROM CUSTOMER’S BREACH OF SECTION 2.2 OR ANY INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT EXCEED THE FEES PAID (OR, IN THE CASE OF CUSTOMER’S LIABILITY, PAID AND/OR PAYABLE) BY CUSTOMER IN THE PRECEDING 12 MONTHS.  TO THE MAXIMUM EXTENT PERMITTED BY LAW AND NO MATTER THE THEORY OF LIABILITY, IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY UNDER ITS INDEMNIFICATION OBLIGATIONS HEREUNDER EXCEED TWO TIMES FEES PAID ANY/OR PAYABLE BY CUSTOMER TO UPWAVE IN THE 12 MONTHS PRECEDING THE CLAIM.

1. Confidential Information.

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose non-public information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information; and (b) not to use or divulge to any third person any such Confidential Information except as necessary to exercise the Receiving Party’s rights or perform its obligations under this Agreement. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (i) is or becomes generally available to the public; or (ii) was in its possession or known by it prior to receipt from the Disclosing Party; or (iii) was rightfully disclosed to it by a third party; or (iv) was independently developed without use of any Confidential Information of the Disclosing Party. In the event that the Receiving Party is required by law to make any disclosure of any of the Confidential Information of the Disclosing Party, by subpoena, judicial or administrative order or otherwise, the Receiving Party shall, to the fullest extent permitted by law, first give written notice of such requirement to the Disclosing Party, and shall permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Disclosing Party in seeking to obtain such protection, at the Disclosing Party’s expense. The confidentiality obligations herein shall survive for 2 years following the disclosure of such Confidential Information to the Receiving Party.

1. Term and Termination.

This Agreement shall govern over any Order that references this Agreement, for the term noted in such Order.  Either party may terminate an Order in the event of a material breach of this Agreement by the other party, which is not cured in the 30-day period after written notice of such alleged breach, provided that this Agreement shall continue to govern over any Orders not affected by the breach, for the full term noted in such Order.  Customer shall be responsible for all Fees incurred up to the date of termination of a particular Order, as specified herein. 

1. Notices.

Upwave may give notice applicable to Upwave’s general Customer base by means of a general notice on the Platform portal, e.g. maintenance notices, and other notices specific to Customer by electronic mail to Customer’s email address on record in Upwave’s account information or by written communication sent by first class mail or pre-paid post to Customer’s address on record in Upwave’s account information. If Customer has a dispute with Upwave, wishes to provide a notice under this Agreement, or becomes subject to insolvency or other similar legal proceedings, Customer shall promptly send written notice to Upwave at 35640 Fremont Blvd., #359, Fremont, CA 94536, or such other updated address as may be communicated by Upwave to Customer, with a required copy to legal@Upwave.com.

1. General provisions.

11.1 Customer agrees that Upwave may list Customer’s name (including by displaying any Customer trademark) for the purpose of identifying the business relationship between the parties on Upwave’s website and in other marketing and advertising collateral.  

11.2 Any action, claim, or dispute related to this Agreement will be governed by California law, excluding its conflicts of law provisions.  The parties submit to the exclusive jurisdiction of the state and federal courts located in the County of San Francisco, California. The Uniform Computer Information Transactions Act will not apply to this Agreement. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.

11.3 This Agreement, including any Orders, represent the parties’ entire understanding regarding the Platform and Services and supersedes any prior or contemporaneous, conflicting or additional communications.  Further, Upwave shall not be bound by the terms of any subsequent purchase order or other Customer ordering document or click-through agreement, unless such terms are signed by the parties and expressly reference and supersede this Agreement.  This Agreement may be amended only by written agreement signed by the parties. If any provision(s) (or sub-part thereof) of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) (or subpart thereof) shall be deleted, with all other provisions remaining in full force and effect. A waiver shall only be effective if signed in writing by the waiving party.

11.4 No joint venture, partnership, employment, or agency relationship exists between Upwave and Customer as a result of this Agreement or use of the Platform or Services. Neither party may assign this Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, except that either party may assign this Agreement as a whole to a successor in connection with a merger, acquisition or transfer of assets or the business to which the Agreement relates. Any purported assignment in violation of this section shall be void.

Last Updated: April 30, 2024