This Master Service Agreement (the "Agreement") governs all of your use of our internet-delivered collaboration tools and related services (collectively, the "Service"), whether you access it from our Web site at http://www.rfp365.com (the "Site"), from our Application at https://my.rfp365.com, from a mobile applications or mobile Web sites, or from any other internet points of presence we make available to you. THIS AGREEMENT GOVERNS ALL USE YOU MAKE OF THE SERVICE AND OUR SITE, INCLUDING YOUR FREE TRIAL (IF APPLICABLE) AND YOUR ONGOING FREE OR PAID USE OF THE SERVICE (IF ANY).
This Agreement is a legal contract between UPG Solutions, LLC, d.b.a. RFP365. ("we," "us," or "UPG") and you. BY CLICKING THE "REGISTER" BUTTON DISPLAYED WHEN YOU CREATE A PASSWORD AND SIGN UP FOR THE SERVICE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY OR ENTITY TO THE TERMS OF THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU" AND "YOUR" REFER TO YOUR COMPANY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU OR YOUR COMPANY DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, THEN NEITHER YOU NOR YOUR COMPANY HAS THE RIGHT TO USE THE SERVICE.
You may not register for or use our Service to monitor or test the availability or performance of the Service, or for other benchmarking or competitive purposes.
We reserve the right to modify the terms and conditions of this Agreement at any time by posting an updated version of this Agreement on our Site. Any updated version will become effective 15 days after posted. If you do not agree to any modified terms of this Agreement, you may terminate the Agreement in the manner described in Section 8.2 below. Your continued use of the Service after notice will constitute your acceptance of the modified Agreement.
Among other features, the Service enables users to create, share, upload or attach information to, and edit "Requests for Proposal (RFPs)" and "Proposals" that are stored on the Service (collectively, "Projects"). When you establish an account (paid or free), you may use the Service to (i) create, submit content to, edit and delete Projects, (ii) invite other users to view, submit content to, and/or edit Projects you create, and (iii) otherwise use the features and functionality of the Service for your internal business purposes, all subject to the terms and conditions of this Agreement.
You specifically agree not to: (a) "frame," distribute, resell, or permit access (except for users with whom you share Projects in accordance with this Agreement) to the Service by any third party; (b) permit multiple end users to access the Service using shared login credentials (i.e., a shared email address and password); (c) use the Service other than in accordance with the instructions or documentation we provide and in compliance with applicable federal, state, and local laws; (d) interfere with the Service or disrupt any other userâs access to the Service; (e) reverse engineer, attempt to gain unauthorized access to the Service, or attempt to discover the underlying source code or structure of the Service; (f) submit to the Service any content or data that is false, misleading, defamatory, threatening, offensive, or infringing of intellectual property rights, or that contains mass mailings or any form of "spam"; (g) submit to the Service any routine, device or other undisclosed feature, including a so-called time bomb, virus, software lock, drop dead device, malicious logic, worm, Trojan horse or trap or back door or software routine, that is designed to delete, disable, deactivate, interfere with or otherwise harm any software, program, data, device, system or service, or which is intended to provide unauthorized access or to produce unauthorized modifications; or (h) use any robot, spider, data scraping or extraction tool or similar mechanism with respect to the Service.
We may, from time to time, make available application programming interfaces (APIs), HTML scripts, data import tools, or other software code or executables as part of the Service ("RFP365 APIs and Software"). With respect to the RFP365 APIs and Software, we grant you a non-exclusive, non-transferable license, only while this Agreement remains in effect, to use the RFP365 APIs and Software to access and use the Service in compliance with the terms of this Agreement, and for no other purpose. Except as expressly permitted herein, you agree not to distribute or disclose the RFP365 APIs and Software to any third party.
Each set of login credentials (i.e., email address and password) for the Service may be used only by a single, individual user. You are responsible for all use of the Service that occurs under your user accounts, and you agree to notify us of any unauthorized access of which you become aware. In addition, if you share your Projects with others, you are responsible for any of their activity on the Service that is related to your Projects.
Except for the rights you grant to us in this Agreement, you retain all right, title and interest in the content and data you enter into a Project or otherwise submit to the Service ("Your Content"). You represent and warrant to us that you either own all rights (or have obtained all licenses, consents or permissions) necessary to submit Your Content to the Service, and you agree not to submit content that infringes or misappropriates the intellectual property rights or other proprietary rights of any third parties, including their rights of privacy and publicity.
When you enter Your Content into Projects, you grant us a non-exclusive, royalty free, worldwide license to use Your Content in order to make the Service and its features available in accordance with the online documentation we provide for the Service, including by displaying it to other users with whom you share Projects and (subject to the sharing privileges selected for the applicable Project) making it available for download and modification by other users with whom you share Projects.
Your Content may include comments or other content you post on discussion boards or in other public communities or forums we maintain on the Site and Service ("Community Content"). You hereby grant us a perpetual, irrevocable, royalty free, worldwide license to (a) display, distribute, reproduce, reformat, make available for download, modify and use Community Content, and (b) sublicense these rights to other users of the Site and Service. In addition, you agree that we may identify you as the source of Community Content (using the name and contact information you provide us).
Notwithstanding your ownership of Your Content, we have no obligation to retain, and may delete, Your Content from the Service at any time after (a) this Agreement is terminated or (b) with respect to Your Content on Projects you have created, when you cancel your subscription pursuant to Section 6.3. We have no obligation to make Your Content available to you in any form after termination or cancellation.
Your initial subscription period for the Service is established if and when you purchase a monthly or annual Subscription Plan. Unless you notify us that you wish to cancel in accordance with Section 6.3, your subscription will automatically renew for successive subscription periods of the same length. Unless we separately agree otherwise in writing, we charge Subscription Fees in advance at the beginning of each subscription renewal period. You may view your current Subscription Plan and billing information at any time in your Account Administration settings.
If you choose to change your Subscription Plan (upgrade or downgrade), you may do so at any time during the subscription period. Your Subscription Plan change and your new Subscription Fee will be billed at the start of the next billing cycle. You can upgrade and downgrade to any paid Subscription Plan, keeping in mind any restrictions on functionality will apply (such as expiration of project credits, concurrent Projects, or other features tied to specific Subscription Plans). You can purchase additional Project credits anytime without impacting your regular Subscription Plan.
Once a subscription period (initial or renewal) commences, all Subscription Fees paid for that period are nonrefundable. You may cancel your subscription at any time before the end of the then-current subscription period using the cancellation procedure we provide through the Service, in which case your subscription will not renew and we will not charge any additional Subscription Fees. When you cancel a subscription, we will purge Your Content for your protection.
Users purchase project credits either through Subscription Plans or by purchasing additional credits (individually or in bulk). All project credits have an expiration date. Credits purchased individually or in bulk expire after 12 months. Credits purchased through monthly subscription plans expire after one month and credits purchased through annual subscription plans expire after one year. Once the expiration date has been reached, the credit is no longer valid. Credits are non-refundable.
You agree to pay the fees in effect for your subscription at the time initially purchased or renewed, along with any fees for additional services that you agree to pay while using the Service (collectively, "Service Fees"). Current pricing for subscription plans is available on the Pricing page of our Site. Unless we separately agree otherwise in writing, all Service Fees for subscriptions are payable in advance prior to the commencement of each subscription period. Other Service Fees become due and payable as described on our Site or in this Agreement.
When you register for the Service, you will provide us with either a valid, up-to-date credit card number or the other payment information we request. If you have selected a credit card as your payment method, you authorize us to charge your credit card for Service Fees on the first day of your initial subscription period and each renewal subscription period and, for any additional Service Fees beyond your subscription fee, to charge your credit card when such fees become due and payable. You are responsible for maintaining up-to-date payment information on the Service. If we cannot charge your credit card for any Service Fees when due because your payment information is no longer valid and up-to-date, or if we do not receive your payment when due through the alternative payment method you have selected, we may, at our election: (a) suspend your access to the Service, in which case you will be responsible for all Service Fees incurred during the period of suspension; (b) immediately terminate this Agreement, in which case your right to use the Service will cease; or (c) without waiving our rights to suspend or terminate your account, allow you a longer period during which to make payment, in which case you will remain responsible for all Service Fees incurred while we await your payment. Late payments incur interest charges at the rate of 1% per month on any outstanding balance or the maximum amount permitted by applicable law, whichever is less. The Service Fees shown on our Site includes any local, state or federal taxes or duties.
This Agreement begins when you first create a password to access the Service and accept the Agreement. It remains in effect indefinitely until you cancel your subscription pursuant to Section 6.3, or the Agreement is otherwise terminated pursuant to this Section.
You may terminate this Agreement at any time upon written notice to us in accordance with this Agreement. For avoidance of doubt, we will not be obligated to refund any Service Fees in connection with such termination under any circumstances. Your termination under this Section 8.2 will be effective immediately. Note that when you cancel a paid subscription pursuant to Section 6.3, your access to Projects you created will cease, but this Agreement will not automatically terminate.
We may terminate this Agreement at any time, for any reason, by giving you five (5) days written notice to the email address you provided when you registered for the Service. If we discontinue your access to the Service at the end of this five (5) day period, we will refund any prepaid, unused Service Fees for the remainder of the then-current subscription period. Otherwise, no Service Fees will be refundable, you may continue using the Service until the end of the then-current subscription period, and termination will be effective at the end of your then-current subscription period.
In addition, we may terminate this Agreement and/or discontinue your access to the Service immediately, without any obligation to notify you in advance or refund any Service Fees, if: (a) you are in breach of this Agreement, (b) you misappropriate or infringe any of our intellectual property or proprietary rights, or (c) you fail to make a payment when due (e.g., because your payment information is out-of-date or invalid).
Upon termination of this Agreement for any reason: (a) all rights and obligations of the parties will cease, except that the following sections will survive termination or expiration: 1, 3, 4.2, 5, 7 (with respect to amounts that are accrued but unpaid as of the effective date of termination), 8.5, 9, 10, 11, 12.2, and 13 through 18; (b) you will have no further right to use the Service (notwithstanding any provision of a surviving section); and (c) we have no obligation to retain, and may delete, any of Your Content stored on the Service.
As between the parties, you retain all right, title and interest in and to Your Content, except for the rights you grant to us in this Agreement.
As between the parties, we retain all right, title and interest in and to (a) the Service and the technology and software used to provide it (including all intellectual property and proprietary rights therein), and (b) all electronic and print documentation and other content and data (excluding Your Content) that you access through the Service. Except for the rights to access and use the Service and RFP365 APIs and Software that we explicitly grant you in this Agreement, we do not grant you any right or license in or to any of our intellectual property or proprietary rights.
We are grateful for any input you provide, but we need to maintain our intellectual property rights in the Service. Accordingly, you acknowledge and agree that all feedback and suggestions for enhancement that you provide to us concerning the Service ("Feedback") will be owned by us without any obligation of compensation to you.
You agree not to disclose, duplicate, publish, release, transfer or otherwise make available our Confidential Information in any form to, or for the use or benefit of, any person or entity without our prior written consent. "Confidential Information" means any of our financial, technical, or business information that we designate as confidential at the time we disclose it to you, or that you reasonably should understand to be confidential based on the nature of the information or the circumstances surrounding its disclosure. The specific features of the Service, the documentation we provide to you in connection with the Service, and the RFP365 Software and APIs are our Confidential Information. Confidential Information does not include any information that: (i) is or becomes generally known to the public without breach of your confidentiality obligation under this Agreement; (ii) was independently developed by you without breach of your confidentiality obligation under this Agreement; or (iii) is received from a third party who obtained such Confidential Information without breach of any obligation owed to us.
We represent and warrant that, when available, the Service will operate substantially as described in the online documentation that we make available with the Service.
You acknowledge that, as internet-delivered services, the Service may experience periods of downtime, including but not limited to scheduled maintenance. Except as expressly provided in this Section, WE MAKE NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE SERVICE, INCLUDING THE DOCUMENTATION, RFP365 SOFTWARE AND APIS, OR ANY DATA OR CONTENT MADE AVAILABLE THROUGH THE SERVICE, WHETHER EXPRESS OR IMPLIED. WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ACCURACY. WE DO NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.
IN NO EVENT WILL WE BE LIABLE UNDER THIS AGREEMENT, WHETHER UNDER CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, FOR (I) ANY AMOUNT IN EXCESS OF THE FEES ACTUALLY PAID TO US FOR THE SERVICE FOR THE CURERNT SUBSCRIPTION PERIOD, OR (II) ANY LOST PROFITS OR OTHER INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF WE HAVE BEEN GIVEN ADVANCE NOTICE OF SUCH POSSIBLE DAMAGES, OR (III) ANY LOSS OF YOUR CONTENT OR DATA.
You agree that you will defend, indemnify and hold us and our corporate affiliates, directors, officers, employees, successors, assigns and agents harmless from and against any claim, demand, action, proceeding, loss, damage, settlement, penalty, cost, expense or other liability (including but not limited to reasonable attorney fees and expenses) arising out of (1) any allegation that, if true, would establish a breach of this Agreement by you, (2) any of Your Content that you post to the Service (except to the extent such liability results from our modification of Your Content or use of Your Content in violation of this Agreement), or (3) any Work Request that you submit, including any claims that your Work Request has created an employment relationship with any Service Provider(s).
You agree that, if you have (or have had) a paid subscription to the Service, we may identify you as a customer on our Site or in our customer list, blogs, and other public communications.
Except in cases where this Agreement permits notice via email, all notices required under this Agreement must be in writing, must be sent via internationally recognized delivery service or messenger or via U.S. mail, and will be deemed given five (5) business days after having been sent. Notices must be addressed as follows: if to us, to Attn: Legal Affairs, 6641 Oak Street, Kansas City, Missouri 64113, and for notices permitted to be sent via email, to email@example.com; and, if to you, to the contact name and address or email address that you have provided us.
The Agreement has been written in the English language, and you agree that this English language version will govern your use of the Service and the other matters described in this Agreement.