Terms of Service – TUP SaaS UI Optimization Agreement 

This Software Services Agreement is entered into and agreed upon between Transport Learning Inc. d/b/a TUP, (hereinafter “TUP” or the “SERVICE PROVIDER”, a company organized and existing under the laws of the State of Delaware, with its head office located at: PO Box 1316, Woodstock, New York, United States of America, 12498, AND you, either an individual or an entity (“COMPANY”), a company organized and existing under the laws of the State of _______________, with its head office located at: _____________________(hereinafter referred to as “CLIENT” or “YOU”).

BY ACCEPTING THIS AGREEMENT, EITHER BY INDICATING YOUR ACCEPTANCE, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY UTILISING THE SERVICES (DEFINED BELOW), YOU AGREE TO THIS AGREEMENT. THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND TUP THAT SETS FORTH THE TERMS THAT GOVERN THE USE OF OUR SERVICES TO YOU HEREUNDER. IF YOU DO NOT AGREE, YOU MUST NOT ACCESS OR USE THE SOFTWARE OR SERVICES. TUP may modify this Agreement from time to time and will post the most up-to-date version on its website or send the agreement directly to you via Email. Your continued use of the Services and Software following modification to the updated Agreement constitutes your consent to be bound by the same. You represent and warrant that you have the legal power and authority to enter into this Agreement. This Agreement includes any Order Forms as well as any policies, exhibits or addendums that may be referenced herein.

WHEREAS

  1.   TUP has experience and expertise in providing UI Optimization.
  2.   CLIENT desires to have TUP provide services for them; and
  3.   TUP desires to provide services to CLIENT on the terms and conditions set forth herein.

NOW THEREFORE, in consideration of the above recitals, the representations, warranties, and agreements contained in this Agreement and for other good and valuable consideration, the receipt and adequacy of which are now acknowledged, the Parties agree as follows:

  1.   DEFINITIONS

1.1 Agreement means the Software Services Agreement, any applicable Product/Service Addendum, the Confidentiality & Security Addendum, and the Order Form.

1.2 Confidential Information shall mean and include any document the “Disclosing Party” marks as Confidential; any information designated as Confidential.

1.3 Content means any and all text, data, software, graphics, information, images, or other materials submitted, uploaded, imported, communicated or exchanged to facilitate the resale and use of the Services.

1.4 Devices means (whether physical or virtual) a server, system, workstation, computer, mobile device, or end point upon which or through which the Services are used and/or on which the Software is installed.

1.5 Documentation shall mean and include any and/or all the Documents, Forms, Order Forms, Schedules, and such other documents made available by the parties to each other to facilitate the performance of Services.

1.6 Fees means the charges by TUP for subscription to or use of the Service. Fees related to the set-up of the Services (“Set-up Fees”) are payable upfront – prior to commencement of services.

1.7 Order Form means TUP’s order page, product/service quotation, or other TUP software ordering document that specifies Your purchase of the Services, pricing, and other related information. The term Order Form further refers to the attachment identified as “Addendum A”

1.8 Services means the products and software services, including any application programming interface that accesses functionality, that are provided to You by TUP.

1.9 Software means the object code versions of any downloadable software provided by TUP solely for the purpose of accessing the Services, including but not limited to an agent, together with the up-dates, new releases or versions, modifications, or enhancements, owned and provided by TUP to You pursuant to this Agreement.

1.10 User means an individual authorized by You to use the Services, Software, and Documentation, for whom You have purchased a subscription or to whom You have supplied a user identification and password. User(s) may only include Your employees, consultants, and contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Subscriber (or by or for TUP at Subscriber’s request).

1.11 Data means data, files, or information, including data, files, or information (including without limitation any Personal Data), accessed, used, communicated, stored, or submitted by You or Your Users related to Your or Your User’s use of the Services or Software.

  1.   TERM OF THE AGREEMENT

This Agreement is effective as of the date it has been executed by the Parties and shall continue to be in force for a period of ___________ months unless terminated earlier in accordance with the provisions of this Agreement. At the expiration of the stipulated term, the Agreement may be renewed at the option and consent of both of the parties.

  1.     TUP’S DELIVERABLES, REPRESENTATIONS & WARRANTIES 

In providing UI Optimization Solutions, TUP agrees to:

  1. Develop all code necessary to alter the UI of the platform;
  2. Provide a mechanism for end-users to provide feedback;

iii. Provide a mechanism to give end-users the ability to choose among UI variations;

  1. Provide available metrics via an API, JavaScript injection, and/or TUP-hosted dashboard;
  2. Communicate with CLIENT on matters related to the use of, and the identification and resolution of errors in the service provided, however, this shall not extend to the provision of training services;
  3.   Utilize commercially reasonable efforts to rectify any reproducible errors for which TUP is directly and solely responsible, and for which TUP has the data necessary to correct such errors;

vii.   All written and oral information and material disclosed or provided by the CLIENT to TUP under this Agreement is Confidential Information regardless of whether it was provided before or after the date of this Agreement or how it was provided to the Service Provider;

viii.   TUP agrees that it will not disclose, divulge, reveal, report or use, for any purpose, other than for rendering the services herein, any Confidential Information or data which TUP has obtained, except as authorized by the CLIENT or as required by law.

  1.   TUP will assume no responsibility towards the users or the CLIENT in relation to any claim, complaint or dispute that arises between a user and the CLIENT with regards to the sharing of users’ information and/or data with TUP.
  2.   TUP will process the information and/or data in a lawful, fair and transparent manner. 

4. CLIENT’S RESPONSIBILITIES, REPRESENTATIONS & WARRANTIES

CLIENT agrees to:

  1.   Maintain TUP’s tag in its source code;                                  
  2. Perform quality assessments tests on its staging server; and

iii.  Handle all end-user agreements;

  1.   DATA SECURITY & PRIVACY

 In addition to compliance with Addendum B, TUP shall, during the term of this Agreement, maintain appropriate administrative, physical and technical safeguards to protect the security and integrity of the data generated through the platform and services in accordance with industry standard security requirements.

 

  1. PAYMENT TERMS

 

  1. Client agrees to pay the fees set out in the Order Form(s) – all of which are included in Addendum A. All fees are payable in accordance with the terms set out in the Order Form(s). Client will also pay for Professional Services at TUP’s then prevailing rates, unless otherwise indicated on the Order Form. Unless otherwise indicated on the invoice, all invoices are due and payable in full within seven calendar days of issue date. If Client wishes to decrease its use of the Subscription Services after the term (to the extent service capacity or usage is limited pursuant to the Order Form(s)), Client may do so after the Initial Term if Client notifies TUP thirty (30) days in advance. If Client wishes to increase its use of the Subscription Services (to the extent service capacity or usage is limited pursuant to the Order Form(s)), Customer must notify TUP in advance and pay any applicable fees.

 

  1. If Client initiates a dispute regarding a particular invoice, any undisputed amounts charged on such invoice will continue to be due and payable. TUP and Client agree to use reasonable efforts to address and attempt to resolve any invoice dispute within thirty (30) days after TUP’s receipt of Client’s notice to TUP regarding such dispute. With regard to any undisputed invoiced amount that is not paid when due, TUP reserves the right to charge, and Client agrees to pay, a late payment fee on the unpaid balance from the due date until paid (whether before or after judgment) equal to five percent (5%) per month. If it is determined that TUP properly charged any amount disputed and withheld by Customer, the late fee will be assessed and paid on the disputed, withheld amount.

 

  1. MONEY BACK GUARANTEE

 

If, after 60 days, TUP has not delivered a modal (popup) that displays UI options for each user, generated from machine learning and/or direct user feedback, TUP will issue a full refund of all monies paid.

  1. TERMINATION

 

  1. CLIENT

The CLIENT may terminate this Agreement if TUP materially violates a provision and/or fails to provide the Services in accordance with these terms in that such failure causes material harm to the CLIENT and TUP does not cure the failure within 10 days of receipt of the notice describing the failure, in reasonable details.

  1. TUP

TUP may terminate this Agreement or suspend the Services before the end of the Term without liability: (i) On 21 days’ notice to CLIENT, if CLIENT is overdue on the payment of any amount pursuant to this Agreement; and/or (ii) If CLIENT materially violates any other provision and fails to cure the violation within 10 days’ notice from TUP describing the violation in reasonable detail.

  1. USE OF LOGO FOR PROMOTIONAL & MARKETING MATERIALS

Unless indicated otherwise in the applicable Order Form, Client provides TUP with permission to use its trademark, logo, and trade name within TUP’s promotional and marketing materials. TUP is granted no other right to the Branding and acknowledges that it shall not gain any proprietary interest in the same. TUP is under no obligation to make use of, or to provide compensation for, the right or permission granted by Client to the Branding.  TUP shall be the exclusive owner of all right, title, and interest, including copyright in its promotional and marketing materials. The permission to use the Branding may be terminated at any time by Client by providing thirty (30) days’ written notice to TUP. Upon such termination, TUP shall refrain from future use of the Branding; however, TUP may continue to distribute and use the promotional and marketing materials where Client’s Branding has been previously printed prior to the notice of termination and where such placements cannot be discontinued or altered without TUP incurring any losses.

 

  1. NOTICES & COMMUNICATION

All notices, requests, demands or other communications required or permitted by these terms will be given electronically at the following address: support@tup.solutions  and shall be deemed effectively given once they have been received and acknowledged by TUP.

  1. LIABILITY FOR OUR SERVICES

To the extent permitted by law, the total liability of TUP, for any claims under these terms, including for any implied warranties, is limited to the amount you paid us to use the Services. In all cases, TUP, and its suppliers and distributors, will not be liable for any loss or damage that is not reasonably foreseeable.

  1. FORCE MAJEURE

TUP shall not be liable or responsible for any delay or failure to provide the Services because of any event beyond its reasonable control, including, without limitation, adverse weather conditions, pandemics, internet outage or interruption of service, telecommunications or power outages, denial of service attack, fire, flood, civil disobedience, labor disruptions, strikes, lockouts, freight embargoes, terrorism, natural disaster, war or acts of God.

 

  1. ENTIRE AGREEMENT

 

This Agreement constitutes the complete understanding between the Parties. No other promises, representations, or agreements shall be binding unless signed by these Parties.

 

  1. GOVERNING LAW

 

This Agreement shall be governed by and construed in accordance with the laws of the state of New York. The Parties agree, in the event, any claim or suit is brought in connection with this Agreement, it shall be brought to the exclusive jurisdiction and venue of the courts of the state of New York.

15. SEVERABILITY

If one or more of the provisions herein shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any of the other provisions of this Agreement.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

 

_________________________

Randall Malcolm

CEO of Transport Learning Inc. dba TUP

Executed on _______________[insert date]

________________________

[NAME OF AUTHORIZED SIGNER]

[ROLE & COMPANY]

Executed on _____________[insert date] 

ADDENDUM A

Order Form

 

[INSERT/ATTACH – EXCEL/PDF FORM]

 

ACKNOWLEDGED AND AGREED AS OF THE EFFECTIVE DATE:

 IN WITNESS WHEREOF, each of the Parties hereto, through its duly authorized officer, has executed this as of the Effective Date.

TUP:                                                                                                                                                                                 

By:________________________________________   

Name: _____________________________________ 

 

Client:                     

By:________________________________________ 

Name: _____________________________________

ADDENDUM B

Confidentiality & Security Addendum

This Confidentiality and Security Addendum (the “Addendum) is hereby incorporated by the Parties and part of the Agreement. The parties intend this Addendum to supplement any similar terms, conditions, and provisions in the Agreement regarding the same or similar subject matter. To the extent that there is a conflict or inconsistency between the terms, conditions, or provisions of this Addendum and the terms, conditions, or provisions in the Agreement (or any of TUP’s terms of service, use restrictions, End-User license agreement, or similar terms of use), the terms of this Addendum shall control.

  1.   Confidentiality

Each party, in performing its obligations under the Agreement, may have access to or be exposed to the other Party’s Confidential Information. Except with respect to personal, Client, or Partner client data, Confidential Information shall not include information which can be demonstrated: (a) to have been rightfully in the possession of the receiving party from a source other than the disclosing party prior to the time of disclosure of said information to the receiving party; (b) to have been in the public domain prior to the Agreement (c) to have become part of the public domain after the by a publication or by any other means except an unauthorized act or omission by, or breach of this Agreement on the part of, the receiving party or its employees or agents; or (d) is independently developed by the receiving party without the use of Confidential Information of the disclosing party, or its clients or suppliers.

At all times, any and all specific Client data is deemed as Confidential Information and shall not be disclosed.

(1) Use and Disclosure: Neither Party will disclose the other Party’s Confidential Information to or use the other Party’s Confidential Information without the other Party’s prior written consent. All Confidential Information relating to a Party will be protected against unauthorized use or disclosure by the other Party to the same extent and with at least the same degree of care as such Party protects its own confidential or proprietary information of like kind and import, but in no event using less than a reasonable degree of care. Each Party may disclose the other Party’s Confidential Information to its officers, agents, subcontractors and employees only to the extent not prohibited by law and only as necessary to perform or receive the Services.

(2) Right to Injunctive Relief: Each Party acknowledges that, due to the unique nature of the other Party’s Confidential Information, the Disclosing Party will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, equity, or otherwise, the Disclosing Party will be entitled to seek injunctive relief to prevent the unauthorized use or disclosure of its Confidential Information.

(3) Unauthorized Acts: Without limiting either Party’s rights in respect to confidential data, each party, in its capacity as a Receiving Party, will: (i) refrain from removing or altering any proprietary markings (e.g., copyright or trademark notices) on the Disclosing Party’s Confidential Information; (ii) promptly notify the Disclosing Party of any unauthorized possession, use or knowledge of the Disclosing Party’s Confidential Information of which it becomes aware; (iii) promptly furnish to the Disclosing Party known details of the unauthorized possession, use or knowledge, and reasonably assist the Disclosing Party in investigating or preventing the recurrence of any unauthorized possession, use or knowledge of the Disclosing Party’s Confidential Information in the Receiving Party’s possession; (iv) reasonably cooperate, at the Disclosing Party’s expense, with the Disclosing Party in any litigation and investigation against third parties deemed necessary by the Disclosing Party to protect its rights in Confidential Information to the extent such litigation or investigation relates to the Services; and (v) use diligent efforts to prevent a recurrence of any such unauthorized possession, use or knowledge of the Disclosing Party’s Confidential Information.

  1.   General Security Obligations

TUP shall comply with or exceed, applicable industry best practices as follows: (a) adhering to Center of Internet Security secure-build benchmarks in its systems or other equivalent standards, (b) implementing firewalls with advanced-threat protection (e.g., zero-day-threat protection, domain-name services (DNS) filtering/DNS sinkhole, intrusion detection and protection systems, uniform resource locator (URL) filtering, and blocking (both inbound and outbound) of known malicious websites); (c) creating infrastructure that provides alerts of security events; (d) building, operating, and maintaining reasonably secure systems related to the Services; (e) tracking access to and attempted intrusions into a Party’s systems; and (f) maintaining the integrity and security of user IDs, passwords, and confidential information that may be used or stored on or in TUP’s systems or used during the delivery of the Services.  

  1.   Virus and Malware Protection

TUP shall regularly review and update, as applicable, (a) all related software, firmware, firewalls, and hardware; (b) the programs related to the Services; and (c) all of TUP’s related systems according to industry best practices. TUP shall install and maintain industry-standard antivirus software on its systems and protect the Services. Such antivirus software shall be updated on a regular basis according to industry best practices. TUP shall not introduce or negligently allow any harmful or malignant code into the Client’s or Partner’s client’s system.

 ACKNOWLEDGED AND AGREED AS OF THE EFFECTIVE DATE:

 

IN WITNESS WHEREOF, each of the Parties hereto, through its duly authorized officer, has executed this as of the Effective Date.

TUP: CLIENT:                                                                                                                                                                          

 

By: ____________________________ By:    _______________________________

Name: _________________________   Name:_______________________________  

Title: ___________________________  Title:   _______________________________

Address: ________________________  Address:   ___________________________

               ________________________                    ___________________________

Date:  __________________________   Date: ________________________________