PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE PYUP SERVICE (AS DEFINED HEREIN) OFFERED BY PYUP CYBERSECURITY INC. ("PYUP" OR "COMPANY"). BY MUTUALLY EXECUTING ONE OR MORE SALES ORDERS WITH COMPANY WHICH REFERENCE THESE TERMS (EACH, A "SALES ORDER") OR BY ACCESSING OR USING THE PYUP SERVICE IN ANY MANNER, INCLUDING DURING ANY FREE TRIAL PERIOD, YOU ("YOU" OR “CUSTOMER") AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL SALES ORDERS, THE “AGREEMENT") TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT; IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, REFERENCES TO "CUSTOMER” AND "YOU” IN THIS AGREEMENT, REFER TO THAT ORGANIZATION OR ENTITY. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE PYUP SERVICE IN ANY MANNER.
In this Agreement, PyUp and Customer are together referred to as the "Parties” and individually as a "Party”.
"Affiliate" means, with respect to a party, any entity which directly or indirectly Controls, is Controlled by, or is under common Control with such party.
"Aggregate Data" means Anonymous Data and data derived from compiling, combining or incorporating such Anonymous Data with or into other similar data and information available, derived or obtained from other customers, clients, licenses or user of the PyUp Service, or otherwise to permit PyUp to provide the PyUp Service.
"Anonymous Data" means the anonymous data related to the PyUp Service that is derived from the anonymization and aggregation of the Customer Data.
"Confidential Information" has the meaning set forth in Section 9.
“Control” means ownership or control, directly or indirectly, of at least 50% of the voting interests of the subject entity.
“Customer Data” means any data, information or other material provided, uploaded, or submitted by Customer in relation to the PyUp Service or this Agreement.
“Customer Equipment” means Customer’s and its Affiliates’ computer hardware, software and network infrastructure used to access the PyUp Service.
“CVE Data” means data from the Common Vulnerabilities and Exposures database of publicly disclosed information security issues, managed and maintained by the National Cybersecurity FFRDC (Federally Funded Research and Development Center), operated by the MITRE Corporation.
“Data Protection Laws and Regulations” means all applicable local data protection laws, including but not limited to EU/Swiss applicable legislations with respect to the processing of Personal Data, including but not limited to the EU General Data Protection Regulation (2016/679).
“DPA” means the Data Processing Agreement, available at https://pyup.io/data-processing-agreement which is incorporated into and forms an integral part of this Agreement.
“Documentation” means the published specifications of the PyUp Service, as may be updated or amended from time to time, as determined and provided by PyUp to Customer.
“Effective Date” means the date Customer receives access or accesses the PyUp Service or executes an Sales Order, whichever comes first.
“Entitlement” means the specific use limitations with respect to Customer's access to and use of the PyUp Service as specified in the corresponding Sales Order, including but not limited to the Initial Term and Unique User and Seat count.
“Free Trial Period” means the initial limited period in which the Customer may be offered to trial a certain portion of the PyUp Service without any Fees (the “Free Trial”), subject in all respects to the terms and conditions of this Agreement. The length of any such Free Trial, and the particular Entitlements included may vary from time to time. You may be required to enter your billing information in order to sign up for the Free Trial. If the Customer’s billing information is provided when signing up for the Free Trial Period, you will not be charged by PyUp for the PyUp Service until the Free Trial Period has expired. At the end of the Free Trial Period, unless you cancelled your Subscription, you will be automatically charged the applicable Fees for the type of PyUp Service access you have selected pursuant to the related Sales Order. The Free Trial Period is included in the definition of Term as set out below.
“Force Majeure Event” means a natural disaster, actions or decrees of governmental bodies or communications line failure which (i) hinders, delays or prevents a party from performing its obligations, and (ii) is beyond the reasonable control of, and without the fault or negligence of, such party, and (iii) by the exercise of reasonable diligence such party is unable to prevent or provide against, which includes but is not limited to of failures of the internet or any public telecommunications network, failures of the hosting provider, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, pandemics, epidemics, explosions, fires, floods, riots, terrorist attacks and wars, but excluding general economic conditions or other general market effects.
“General Data Protection Regulation” or “GDPR” means Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC as amended, replaced or superseded.
“Initial Term” means the first subscription term period for the PyUp Service defined on an Sales Order, or if no such term period is defined, twelve (12) months, commencing on the date Customer executes such Sales Order.
“Intellectual Property Rights” all intellectual property rights of any nature whether registered, registrable or otherwise, including patents, trademarks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how and any other intellectual property rights in the PyUp Service, workflow processes, user interface, designs, and other technologies in and related to the PyUp Service, including any upgrades or modifications to the same.
“Sales Order” means an online order submitted by Customer through PyUp’s designated URL for the PyUp Service, or a paper-based or online ordering document for the PyUp Service signed by PyUp and Customer.
“PyUp Service” means access and use of PyUp’s online, cloud-based dependency security scanning and analysis tools, PyUp’s on-premises dependency vulnerability scanning tools, PyUp's vulnerability database containing information about vulnerabilities both discovered by PyUp and obtained from other public and proprietary sources as further described in the corresponding Documentation and Sales Order.
“Renewal Term” means each subscription period after the Initial Term for which the subscription term applicable to an Sales Order is extended pursuant to Section 11.
“Seat” means an authorization for a Unique User to use and access the PyUp Service and data; the number of Seats is specified in the corresponding Sales Order.
“Fees” mean the fees paid by Customer in connection with Customer’s access and use the PyUp Service and related standard support during the Term.
"Taxes" means any direct or indirect local, state, federal or foreign value-added, sales, use or withholding taxes.
“Term” as it relates to an Sales Order means the Initial Term and any Renewal Term applicable to each Sales Order, and as it relates to this Agreement, is as defined in Section 11 below.
“Unique User” means a unique, distinct User authorized by Customer to access or use the PyUp Service.
"Users" means Customer's and its Affiliates and their respective employees, agents, contractors, service providers or consultants who access or use the PyUp Service.
2. PYUP SERVICE
Subject to Customer’s payment of the corresponding Fees or during the Free Trial Period, Customer may access and use the PyUp Service in accordance with this Agreement and each Sales Order. Customer’s access and use of the PyUp Service is subject to the Entitlement specified in the corresponding Sales Order.
3. ACCESS AND USE OF THE PYUP SERVICE
3.1 Customer is responsible for obtaining and maintaining any Customer Equipment and any ancillary services needed to connect to, access or otherwise use the PyUp Service.
3.2 Customer agrees to use the PyUp Service in compliance with applicable law, and not: (a) resell, sublicense, lease, time-share or otherwise make the PyUp Service available to any third party other than to Customer Affiliates if so authorized in the corresponding Sales Order; (b) use the PyUp Service to intentionally send or store infringing or unlawful material or material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs, or (c) use the PyUp Service to identify technical weaknesses with the intent to perform illegal or immoral acts.
3.3 Customer agrees to not (a) modify, copy or create derivative works of the PyUp Service; (b) reverse engineer the PyUp Service; (c) access the PyUp Service for the purpose of building a competitive product or service; (d); use the Service in excess of the Entitlement; (e) perform any "mirroring" or "framing" of any part of the PyUp Service, or create Internet links to the PyUp Service which include log-in information, user names, passwords, and/or secure cookies; (f) use the PyUp Service, for purposes of product testing, benchmarking or other comparative analysis; or (g) provide access to the PyUp Service to a known competitor of PyUp or publish any aspect of the PyUp Service publically without the advanced written consent of PyUp.
3.4 Customer agrees that it is responsible for configuring the PyUp Service, including but not limited to determining what Customer Data is collected, stored, used, displayed, and/or exported.
3.5 IF CUSTOMER FAILS TO COMPLY WITH THE OBLIGATIONS SET FORTH IN THIS SECTION 3 PYUP SHALL INFORM CUSTOMER THEREOF IN WRITING AND MAY SUSPEND CUSTOMER’S ABILITY TO ACCESS OR USE THE PYUP SERVICE. PYUP MAY ALSO SUSPEND CUSTOMER’S ABILITY TO ACCESS OR USE THE PYUP SERVICE IF CUSTOMER IS USING THE SERVICE IN EXCESS OF THE ENTITLEMENT SPECIFIED IN THE CORRESPONDING Sales Order.
4. INTELLECTUAL PROPERTY, CUSTOMER DATA AND INFORMATION SECURITY
4.1 Ownership. PyUp retains all right, title and interest to all Intellectual Property Rights in and to the PyUp Service, the Documentation, and all underlying the technology, data, software, processes, algorithms, user interfaces, know-how and all modifications and derivative works thereof. Customer acknowledges and agrees that Customer is not entitled to a copy of the underlying software for the PyUp Service or PyUp’s Python Dependency Vulnerability Database.
4.2 Open Source. The Customer acknowledges and agrees that some aspects of the PyUp Service, including some of the CVE Data and other public vulnerability data are from open source databases and/or may contain open source software (the “Open Source Materials”). Any Open Source Materials provided hereunder is provided pursuant to such Open Source Materials license terms and conditions. Upon reasonable notice to the Customer, PyUp has the right to replace software or data provided to the Customer as part of the Open Source Materials with software or data that has similar functionality. ALL OPEN SOURCE MATERIALS ARE PROVIDED ON AN “AS IS” BASIS, AND PYUP DISCLAIMS ALL WARRANTIES WITH REGARD TO OPEN SOURCE MATERIALS, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL PYUP OR ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES OR ANY OTHER DAMAGES WHATSOEVER, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE OPEN SOURCE MATERIALS EVEN IF PYUP OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE FORESEEABLE. THIS LIMITATION WILL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM PYUP’S OR ITS AFFILIATES’ NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION.
4.3 Feedback. To the extent the Customer provides any suggestion, idea, enhancement requests, recommendations or comments (“Feedback”) to PyUp, such Feedback will not be considered Confidential Information and PyUp will have the unrestricted right to use, profit from, disclose, publish or otherwise exploit any Feedback without any compensation to the Customer. The Customer will have no intellectual property rights in any developments arising from any Feedback.
4.4 Applicable Laws. In the protection of the Customer Data, PyUp adheres to the rules of the GDPR and applicable Data Protection Laws and Regulations, and, as the “data processor” abides by the provisions of the DPA. PyUp has further executed appropriate sub-processing agreements with the sub-processors listed in the Documentation, such a list to be updated by PyUp from time to time.
4.5 Data Protection. Customer acknowledges and agrees that its use of the PyUp Service in connection with any personally identifiable information subject to applicable law, is subject to the PyUp DPA available at: https://pyup.io/data-processing-agreement. Each Party undertakes to comply with its obligations under relevant applicable Data Protection Laws and Regulations. To the extent that personal information is processed when the Customer or its Users use the PyUp Service, the Parties acknowledge that PyUp and its Affiliates are a data processor and the Customer and its Affiliates are a data controller and the Parties shall comply with their respective obligations under applicable Data Protection Laws and Regulations and the terms of the DPA.
4.6 Customer Data. With respect to Customer Data, the Customer:
reserves all rights, title and interest in and to the Customer Data, and subject to the limited rights granted by the Customer hereunder, PyUp acquires no right, title or interest from the Customer under this Agreement in or to the Customer Data or any Intellectual Property Rights therein;
grants PyUp a limited license to copy, transmit, display and modify such Customer Data, solely as necessary for PyUp to provide the PyUp Service to the Customer under this Agreement, for the improvement of the PyUp Service, as well as to derive Aggregate Data in connection with providing the PyUp Service and to make improvements to PyUp’s current and future products and services, provided that any such use does not disclose Customer Data. Aggregated Data collected by PyUp for monitoring, provision, usage and performance of the PyUp Service by the Customer will not be considered the Customer Data nor Customer’s Confidential Information;
acknowledges that the collection and submission of the Customer Data is the sole and exclusive responsibility of the Customer. In relation to any and all personal information comprised within the Customer Data, the Customer warrants that such personal information has been obtained and supplied to PyUp in compliance with applicable Data Protection Laws and Regulations, including but not limited to the GDPR, and the Customer warrants that it has obtained all necessary consents and approvals from users that are necessary to permit PyUp to provide the PyUp Service under this Agreement; and
further acknowledges and agrees that, if the Customer uses the PyUp Service to store, process or transmit any sensitive personal information, within the meaning of the GDPR, the Customer has explicit consent of the data subject to process such information.
5.1 Unless otherwise specified on an Sales Order, the Fees shall be as stated in each Sales Order and shall be payable in advance of the relevant Term, and due upon the start date of each Term. In the event Customer is paying by credit card as indicated in an Sales Order, Customer acknowledges that PyUp uses a third party for the processing of such payments and that such third party will have access to certain information provided by Customer as a result. For payments made by credit card, Customer’s credit card will be charged at the time the Sales Order is placed and thereafter, at the frequency listed in the Sales Order, which will continue until this Agreement is terminated. For all other payment methods, Fees shall be due and payable within thirty (30) days of the date of the invoice. Any failure to pay Fees by the due date may result in suspension of Customer's ability to access the PyUp Service.
5.2 The Fees for PyUp Service are tiered into three (3) pricing plans (the “Pricing Plans”) which will be specified on any given Sales Order:
Basic: for individual developers, freelancers, and small teams;
Team: for start-up and commercial teams; and
Enterprise: for larger teams, enterprises, agencies, and governments.
For additional information on Pricing Plans, see https://pyup.io/pricing/ and the relevant Sales Order.
5.3 PyUp's Fees do not include any Taxes, and Customer is responsible for paying all Taxes arising from its purchases hereunder, excluding Taxes based on PyUp's net income, employees, or property. If PyUp has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount of such Taxes shall be invoiced to and paid by Customer, unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority in advance. The failure to include Taxes on an invoice does not relieve Customer of its obligation to pay such Taxes as required in the applicable taxing jurisdiction. All amounts payable to PyUp under this Agreement shall be without set-off and without deduction of any taxes, levies, imposts, charges, withholdings and/or duties of any nature which may be levied or imposed, including without limitation, value added tax, customs duty and withholding tax. Further, Customer agrees that in the case where Taxes are required to be deducted from payments to PyUp, such as but not limited to VAT, GST or similar withholding obligations, Customer will increase the Fees payable to PyUp so that PyUp receives from Customer (without any liability for Taxes) the amount equal to the total Fees PyUp would have received but for such withholding or deductions (the "True Up").
5.4 In the event Customer exceeds the Entitlement, PyUp may suspend Customer's access and use of the PyUp Service until the access and use becomes consistent with the Entitlement, or Customer pays to PyUp additional Fees with respect to the same.
Subject to PyUp's receipt of the corresponding Fees with respect to the PyUp Service, PyUp shall provide to Customer standard support during the Term.
7. REPRESENTATIONS AND WARRANTIES
7.1 Each party represents and warrants that it has all necessary right, title and authority to enter into and perform under this Agreement.
7.2 The Customer warrants that it has the rights to provide and use any and all Customer Data in accordance with the terms of the Agreement and the foregoing and its performance hereunder doesn’t violate any laws. PyUp represents and warrants that it will maintain the confidentiality of Customer Data and, except as required by applicable law, will not disclose Customer Data to any third party for any purpose other than to provide the PyUp Service. However, PyUp may compile Aggregate Data related to Customer’s usage of the PyUp Service and may use and/or disclose such Aggregate Data to third parties, to the extent that Customer is not identified as the source of such Aggregate Data and as long as the Aggregate Data does not reveal the identity, whether directly or indirectly, of any individual, or specific data entered by or relating to any individual or the Customer.
7.2 PyUp warrants that the operation of the PyUp Service will substantially conform in all material respects to the Documentation during the Term. Customer will provide prompt written notice of any non-conformity.
7.3 As Customer’s sole and exclusive remedy, and PyUp’s entire liability for any breach of the foregoing warranty, PyUp will use commercially reasonable efforts to remedy the nonconformance.
7.4 EXCEPT AS EXPRESSLY PROVIDED HEREIN, PYUP MAKES NO WARRANTIES OF ANY KIND, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PYUP DOES NOT WARRANT THAT THE OPERATION OF THE PYUP SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR ENTIRELY SECURE, OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR SATISFACTORY QUALITY OR THOSE ARISING FROM STATUTE OR USAGE OF TRADE. PYUP CANNOT BE RESPONSIBLE FOR THE CONSEQUENCES OF ITS CUSTOMERS CHANGING THEIR SOFTWARE BASED ON DATA/RESULTS FROM PYUP SERVICE. THE CUSTOMER IS RESPONSIBLE FOR ENSURING THAT ANY CHANGES DO NOT INTERRUPT, BREAK, OR OTHERWISE NEGATIVELY AFFECT THEIR PROJECT(S) AND/OR SYSTEM(S).
8.1 Indemnification by PyUp. PyUp will defend the Customer against any claim, demand, suit or proceeding made or brought against the Customer by a third party alleging that the use of the PyUp Service in accordance with this Agreement infringes or misappropriates such third party’s copyright, trademark or patent (a “Claim Against Customer”), and will indemnify the Customer from any direct damages, reasonable attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement of, a Claim Against Customer, provided the Customer (i) promptly gives PyUp written notice of the Claim Against Customer, (ii) gives PyUp sole control of the defense and settlement of the Claim Against Customer, and (iii) give PyUp all reasonable assistance, at PyUp’s expense. If such Claim Against Customer has occurred, or in PyUp's opinion is likely to occur, the Customer agrees to permit PyUp, at PyUp's sole option and expense, either to procure for the Customer the right to continue using the PyUp Service or to replace or modify the same so that it becomes non-infringing without loss of functionality, or if none of the foregoing alternatives is reasonably available, terminate the Agreement and refund to the Customer any prepaid unused fees as of the date of termination.
8.2 Indemnification by the Customer. The Customer will defend PyUp against any claim, demand, suit or proceeding made or brought against PyUp by a third party alleging that Customer Data, or Customer’s use of the PyUp Service in breach of this Agreement infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against PyUp”), and will indemnify PyUp from any damages, reasonable attorney fees and costs finally awarded against PyUp as a result of, or for any amounts paid by PyUp under a court-approved settlement of, a Claim Against PyUp, provided PyUp (i) promptly gives the Customer written notice of the Claim Against PyUp (provided that the obligations under this Section 8.2 shall not be reduced by the failure to give such notice except to the extent Customer is materially prejudiced by such failure), (ii) gives the Customer sole control of the defense and settlement of the Claim Against PyUp (provided that Customer may not settle any Claim unless it unconditionally releases PyUp of all liability and obligation), and (iii) gives the Customer all reasonable assistance, at the Customer’s expense.
8.3 Exclusive Remedy. This “Mutual Indemnification” contained herein under Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.
9.1 As used herein, "Confidential Information" means all confidential information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure, including the terms and conditions of this Agreement, inventions, know-how, trade secrets, business and marketing plans, technology and technical information, product plans and designs and business processes disclosed by such Party, and where the Disclosing Party is PyUp, Confidential Information shall include the PyUp Service, PyUp’s Intellectual Property Rights, and PyUp’s Python Dependency Vulnerability Database. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any confidentiality obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any confidentiality obligation owed to Disclosing Party or access to or reliance on Disclosing Party’s Confidential Information; or (iv) is received from a third party without breach of any confidentiality obligation owed to Disclosing Party.
9.2 Receiving Party shall not disclose or use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except as allowed by the terms of this Agreement or with Disclosing Party's prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party's Confidential Information in the same manner that it protects the confidentiality of its own Confidential Information of like kind (but in no event using less than reasonable care). Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party's Confidential Information.
9.3 If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with (a) prior written notice of such compelled disclosure (to the extent legally permitted) and (b) reasonable assistance in contesting the disclosure, at Disclosing Party's option and cost. Any actual disclosure shall be limited to the minimum amount of information necessary to comply with the disclosure demand as advised by legal counsel.
9.4 If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of confidentiality protections hereunder, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate.
9.5 Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party's Confidential Information and, upon request and to the extent practicable, return to the Disclosing Party or destroy (at the Disclosing Party's election) all materials containing such Confidential Information.
10. LIMITATION OF LIABILITY
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL PYUP’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID OR PAYABLE TO PYUP DURING THE (12) TWELVE MONTHS PRIOR TO THE DATE OF THE CLAIM. DURING THE FREE TRIAL PERIOD, PYUP’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL NOT EXCEED $500.00.
10.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL PYUP OR ITS AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. TERM AND TERMINATION
11.1 This Agreement commences on the Effective Date and unless terminated as otherwise provided herein, shall continue until all Sales Orders entered into under this Agreement have expired or been terminated. The Initial Term applicable to each Sales Order commences upon the start date of such Sales Order and upon expiration of the Initial Term, the PyUp Service subscription term applicable to such Sales Order shall continue to renew for consecutive terms equal in duration to the Initial Term, unless either party gives notice to the other party of its desire to not renew prior to the end of the then-current Term.
11.2 Termination for Cause: Either Party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach of this Agreement if such breach remains uncured at the expiration of such period; or (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding.
11.3 Termination without Cause: For Customers on Basic or Team Pricing Plans, the Customer may change PyUp Service plan level or terminate this Agreement for any reason without cause on advanced written notice to PyUp. Upon termination, PyUp will return any pro rata portion of the Customer’s unused Fees. For Customers on an Enterprise Pricing Plan, this Agreement shall continue until all Sales Orders entered into under this Agreement have expired or been terminated, as further set out in the Sales Order. PyUp may terminate this Agreement for any reason on thirty (30) days’ advanced written notice to the Customer.
11.4 The parties’ rights and obligations under Sections 4, 5, 7.5, 8-11, and 12 survive termination of this Agreement.
11.5 Upon the effective date of termination of this Agreement Customer’s authorization to access and use the PyUp Service will cease. Thirty (30) days following the termination of this Agreement PyUp will have no obligation to maintain any Customer Data or retain copies or records of Customer Data in its system or otherwise.
12.1 No Partnership. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third-party beneficiaries to this Agreement.
12.2 Notices. Any notices, reports or other communications required under this Agreement shall be in writing and shall be sufficient if delivered by hand, courier, mail, or email addressed to PyUp or the Customer to such address as the Party shall advise the other Party in writing. Any such notices, reports or other communications shall be deemed to have been received by the Party(s) to whom they were addressed upon delivery by hand, mail, courier, or email, when received.
12.3 No Amendment. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by Customer and PyUp.
12.4 Entire Agreement and Precedence. To the extent of any conflict between this Agreement and any other Documentation or document referenced herein, this Agreement shall prevail unless expressly stated otherwise. Notwithstanding any language to the contrary therein, no terms stated in a Customer purchase order or similar ordering document (other than a Sales Order or other mutually executed order document expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void. This Agreement represents the entire agreement of the Parties, and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Unless otherwise agreed to in writing by the Parties, each Sales Order is independent from, and has no impact upon, any other Sales Order. Each Sales Order is enforceable according to the terms and conditions contained in such Sales Order. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) applicable Sales Order, (2) any exhibit to this Agreement, (3) this Agreement, and (4) the Documentation.
12.4 Publicity. Customer hereby authorizes PyUp to list Customer’s name and logo on PyUp’s website and in related marketing materials to identify Customer as a PyUp customer, provided that no Customer Confidential Information is disclosed. Additionally, Customer agrees to participate in customer reference and related programs, to the extent so authorized in writing by Customer (email shall suffice).
12.5 Waiver and Severability. Failure or delay by either Party to exercise its right or remedy provided under this Agreement does not mean a waiver of that or any right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given. If any provision of this Agreement is found to be invalid or unenforceable by a court, then the other provisions of this Agreement shall remain in force and it will be replaced with a provision that achieves the same purpose as the original to the maximum extent possible.
12.6 Force Majeure Event. Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to Force Majeure Event.
12.7 Assignment. A Party will not, without prior written consent from the other Party (such consent not to be unreasonably withheld), assign, or transfer this Agreement, except in case of assignment to such Party’s Affiliates or in connection with change of control, merger, corporate restructuring, sale of all or substantially all of such Party’s assets provided that in each of the foregoing exceptions, (i) the assigning Party shall promptly notify the other Party of such assignment; and (ii) the assignee undertakes to comply with the terms of this Agreement. This Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
12.9 Governing Law and Resolving Disputes. This Agreement shall be governed exclusively by the laws of British Columbia, Canada. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. All disputes arising out of or in connection with this contract, or in respect of any defined legal relationship associated herewith or derived therefrom, shall be referred to and finally resolved by arbitration in accordance with the arbitration rules of the ADR Institute of British Columbia. The case shall be administered by the ADR Institute of British Columbia in accordance with its arbitration rules by one arbitrator. The place of arbitration shall be Vancouver, or, if agreed to between the Parties, any other location in the province of British Columbia and the language of the arbitration shall be English.