This Upbound Master Services Agreement is by and between Upbound Inc. (“Company”) and the entity described below (“Customer”). Company and Customer may be referred to individually as “party” and collectively as “parties.” This Master Services Agreement, collectively with: (a) all Service Order Forms agreed to by the parties in writing and (b) any other materials specifically incorporated by reference herein, is referred to herein as the “Agreement.” This Agreement becomes binding and effective on Customer upon the earliest of: (1) when Customer accesses or uses the Services, or (2) when Customer enters into a Service Order Form (as defined below) with Upbound (“Effective Date”). Capitalized terms in the Agreement have the meaning set forth in Exhibit A or elsewhere in the Agreement.
This Agreement specifies the terms and conditions under which Upbound products and services will be provisioned by Upbound to Customer, whether purchased directly through Upbound or indirectly through a Partner. Purchases through a Partner will be placed through a separate agreement or ordering document between Customer and an Upbound Partner (the “Partner Sales Agreement”) which shall address, as between Customer and Partner, any terms and conditions relating to the quantity of products and services purchased, fees, payment (including any applicable refunds), taxes, and renewals. The Partner Sales Agreement is between Customer and the Upbound Partner and is not binding on Upbound, and any disputes related to the Partner Sales Agreement shall be handled directly between Customer and the Upbound Partner. In the event of any conflict between this Agreement and a Partner Sales Agreement, this Agreement shall govern as between Upbound and Customer. Customer understands and agrees that certain Upbound products or services purchased through a Partner are subject to additional product specific term.
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in conformance to and materially function as described in the respective Documentation and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. COMPANY AND ITS OWNERS, EMPLOYEES, AGENTS, AFFILIATES, AND LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, QUALITY, PERFORMANCE, SUITABILITY, RESULTS, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and the Customer does not have any authority of any kind to bind the Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and reasonable attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. If either party brings against the other party any proceeding in connection with this Agreement, that party may bring that proceeding only in the United States District Court for the Western District of Washington or, only if there is no federal subject matter jurisdiction, in the Superior Court for the County of King, and each party submits to the exclusive jurisdiction of those courts for purposes of any such proceeding. Company may use the Customer's logo on its website during the Term and will remove it upon expiration or termination of the Agreement. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and the Customer otherwise agrees to reasonably cooperate with the Company to serve as a reference account upon request. Company shall not be liable for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by a Force Majeure Event. Nothing in this Agreement will preclude or limit Company from providing the Services to other customers. If this Agreement or a Service Order Form is terminated for any reason, Sections 2.3, 3.1, 3.2, 4, 6-8 of this Agreement (as the same are incorporated into each Order Form) will survive such termination
This Exhibit A to the Master Services Agreement between Company and Customer (the “Agreement”) forms part of the Agreement and is subject to the terms and conditions of the Agreement. Any capitalized terms not defined in this Exhibit A have the meaning indicated elsewhere in the Agreement (including its exhibits or Service Order Forms).
The following definitions apply to the Agreement:
Company shall use commercially reasonable efforts to make the Services available ninety-nine-point nine percent (99.9%), measured on a per-calendar month basis, excluding Scheduled Maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third-party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. Customer's sole and exclusive remedy, and Company's entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than 4 hours, Company will credit Customer 2% of Services fees for each period of 60 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify the Company in writing within twenty-four (24) hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.
Upbound offers a support plan as a part of UpboundCare. Each support ticket you open with the Upbound team will be assigned a severity. The severity can be set by you when you are initially creating the ticket, and this severity directly impacts the response time from the UpboundCare team.
Severity | Definition |
---|---|
Severity 1 | Any error reported by the customer in production where the majority of users for a particular part of the software are affected, the error has high visibility, there is no workaround, and it is affecting revenue. |
Severity 2 | Any error reported by the customer in production where the majority of users for a particular part of the software are affected, the error has high visibility, a workaround may be available; however, performance may be degraded or functions limited and it is affecting revenue. |
Severity 3 | Any error reported by the customer where the majority of users for a particular part of the software are affected, the error has low to medium visibility, a workaround is available; however, performance may be degraded or functions limited and it is NOT affecting revenue. |
Severity 4 | Any error reported by the customer where a single user is severely affected or completely inoperable or a small percentage of users are moderately affected or partially inoperable and the error has limited business impact. |
Basic | Premier | Priority | ||
---|---|---|---|---|
# of Allowed Case Submitters | 2 | 4 | Unlimited | |
24/7 “Follow the Sun” Coverage | N/A | Sev 1 | Sev 1-2 | |
12/5 Coverage | 8/5 coverage | Sev 2-4 | Sev 3-4 | |
Initial Response Time Targets | Severity 1 | N/A | 4 hours | 1 hour |
Severity 2 | N/A | 4 business hours | 2 hours | |
Severity 3 | 2 business days | 8 business hours | 4 business hours | |
Severity 4 | 4 business days | 2 business days | 1 business day | |
Support Account Management | N/A | N/A | Included | |
Private Slack Channel | N/A | N/A | Included | |
Advanced Support Services | N/A | N/A | Included | |
Reporting & Operational Reviews | N/A | N/A | Included | |
Proactive Oversight & Management | N/A | N/A | Included | |
Onsite Visits | N/A | N/A | Available |