1.1 “Data” means the information or other data made available by UpLead to You through the Services, including, without limitation, the contact information and/or records of individuals and their company affiliation that are contained on UpLead’s database and made available to You through the Services.
1.2 “Trial Period” means the period commencing on the Effective Date and ending on the date that is seven (7) days thereafter.
1.3 “Product” means the Services and all associated documentation (if any) (“Documentation”), collectively.
1.4 “Services” means UpLead’s proprietary, hosted service database product.
8.1 Limitation of Liability. NEITHER UPLEAD NOR ITS LICENSORS SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, OR DAMAGES ARISING FROM LOSS OF USE, LOSS OF CONTENT OR DATA OR ANY ACTUAL OR ANTICIPATED DAMAGES, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH DAMAGES MAY BE BASED, AND EVEN IF UPLEAD OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL UPLEAD’S DIRECT DAMAGES EXCEED ONE HUNDRED DOLLARS (US $100.00).ADDITIONALLY, IN NO EVENT SHALL UPLEAD’S LICENSORS BE LIABLE FOR ANY DAMAGES OF ANY KIND.
8.2 Allocation of Risk. You and UpLead agree that the foregoing Section 8.1 on limitation of liability and the Section 6 above on warranty disclaimer fairly allocate the risks in the Agreement between the parties. You and UpLead further agree that this allocation is an essential element of the basis of the bargain between the parties and that the limitations specified in this Section 8 shall apply notwithstanding any failure of the essential purpose of this Agreement or any limited remedy hereunder.
9.1 Definition of Confidential Information. “Confidential Information” of a party shall mean (i) any technical and non technical information related to such party’s business and current, future and proposed products and services, including for example and without limitation, information concerning research, development, design details and specifications, financial information, procurement requirements, engineering and manufacturing information, customer lists, business forecasts, sales information, marketing plans and business plans, logs and other debugging artifacts, benchmark or comparison tests, bug tracking and quality measurements, information exchanged in the course of providing or receiving support, and encrypted or obfuscated information, whether or not decrypted; and (ii) any information that may be made known to the receiving party and which the disclosing party has received from others that the disclosing party is obligated to treat as confidential or proprietary, in each case, which information shall be marked as confidential. The Products and Data are the Confidential Information of UpLead and You agree that You will not disclose any information about the Products or the Data to any third party without UpLead’s express written consent.
9.2 Nondisclosure of Confidential Information and Confidentiality Obligations. Neither party will use, disseminate or in any way disclose any Confidential Information of the other party to any person, firm or business. Each party shall treat all Confidential Information with the same degree of care as such party accords to its own confidential information but not less than reasonable care. Each party shall disclose Confidential Information only to its employees or representatives who have a need to know such information. Each party certifies that each such employee or representative will have agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those terms and conditions applicable to such party under this Agreement. Each party shall immediately give notice to the other party of any unauthorized use or disclosure of the other party’s Confidential Information. Each party shall assist the other party in remedying any such unauthorized use or disclosure of the other party’s Confidential Information.
9.3 Exceptions. Confidential Information shall not include any information that (i) was in the public domain at or subsequent to the time such information was communicated to the receiving party by the disclosing party through no fault of the receiving party; (ii) was rightfully in the receiving party’s possession free of any obligation of confidence at or subsequent to the time such information was communicated to the receiving party by the disclosing party; or (iii) is or was developed by the receiving party’s employees, contractors or agents independently of and without reference to any Confidential Information of the disclosing party. A disclosure of any Confidential Information by the receiving party (a) in response to a valid order by a court or other governmental body or (b) as otherwise required by law shall not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that the receiving party shall provide prompt prior written notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent such disclosure.
9.4 Ownership of Materials. All Confidential Information shall be the property of the disclosing party and no license or other rights to Confidential Information is granted or implied hereby. Within five (5) days after any request by the disclosing party, the receiving party shall destroy or deliver to the disclosing party, at the disclosing party’s option, all Confidential Information of the disclosing party in the possession of the receiving party. The receiving party will provide the disclosing party, upon request, a written certification of such party’s compliance with the obligations under this Section.
10. Automatic Renewal and Termination.
10.1 AUTOMATIC RENEWAL. IF YOU FAIL TO TERMINATE THIS AGREEMENT PRIOR TO THE EXPIRATION OF THE TRIAL PERIOD, YOU SHALL BE AUTOMATICALLY ENROLLED AND PAY FOR THE INITIAL SUBSCRIPTION PLAN AND ANY RENEWAL SUBSCRIPTION TERM AS DESCRIBED IN OUR STANDARD TERMS AND CONDITIONS AVAILABLE HERE. FOR PURPOSE OF CLARITY, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL BE ENROLLED AND CHARGED FOR INITIAL SUBSCRIPTION PLAN IMMEDIATELY UPON EXPIRATION OF THE TRIAL PERIOD.
10.2 Termination. You may terminate this Agreement at any time by request to [email protected]. This Agreement will terminate immediately upon written notice from UpLead if You fail to comply with any provision of this Agreement. Except for Section 3 (“License Grant”) or as otherwise set forth elsewhere in this Agreement, all Sections of this Agreement shall survive termination for a period of three (3) years from the date hereof. On termination of this Agreement, if you have not entered into the subsequent Terms and Conditions for the Paid Product, UpLead may destroy all of Your Data that You submit through the Services.
15.1 Federal Arbitration Act. Certain portions of this Section 15 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act (“FAA”). You and UpLead expressly agree and intend that this Section satisfies the “writing” requirement of the FAA. This Section can only be amended by mutual agreement.
15.2 Binding Arbitration. YOU AND UPLEAD AGREE THAT ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF, OR RELATING TO YOUR USE OF THE SERVICES, PRODUCT, AND/OR DATA UNDER THIS AGREEMENT SHALL BE RESOLVED ONLY BY FINAL AND BINDING ARBITRATION, except that (1) You may assert claims in small claims court within the scope of that court’s jurisdiction; and (2) this agreement to arbitrate does not limit Your or UpLead’s right to seek injunctive or other equitable relief in state or federal court in Los Angeles County, California to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to UpLead at 340 S Lemon Ave, Ste 1022, Walnut, CA 91789. The arbitration will be conducted by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. Payment of all filing, administration and arbitrator fees will be governed by JAMS’ rules. You can obtain JAMS’ procedures, rules, and fee information as follows: JAMS: 800.352.5267 and http://www.jamsadr.com. The arbitration will be conducted in the English language; the location of such arbitration shall be in Los Angeles County, California. Each party will bear its own costs in the arbitration. The arbitrator will have full power and authority to determine issues of arbitrability and to interpret or construe the provisions of the agreement documents and to fashion appropriate remedies (including temporary, preliminary, interim, or permanent injunctive relief); provided that the arbitrator will not have any right or authority: (i) in excess of the authority that a court having jurisdiction over the parties and the dispute would have absent this arbitration agreement; or (ii) to award damages in excess of the types and limitation of damages found in the Agreement. Judgment upon the award may be entered in any court of competent jurisdiction.
15.3 Class Action Waiver. YOU AND UPLEAD EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. You and UpLead each agree that such proceeding shall take solely by means of judicial reference pursuant to California Code of Civil Procedure Section 638.