Terms of Service

 

This Agreement is effective as of September 1, 2020. Amended on March 17, 2021.

This agreement is entered into 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 the payer or/and the recipient of services hereunder identified as part of the free trial and/or subscription process for TUP Services, (hereinafter referred to as “Customer/s” or “You”).

 

By signing up for a free trial, paying for a subscription, placing an order, agreeing to a setup fee, clicking to accept this Agreement, and/or using or accessing any TUP Service or related services (including the TUP Ecosystem Evaluation), you agree to all the terms and conditions of this Terms of Service Agreement (“Agreement”). If you are using a TUP Service or related services on behalf of a company or other entity, then “Customer” or “you” means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Customer is an entity, this Agreement and each Order Form is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement. Please note that we may modify this Agreement as further described in the amendments section below. This Agreement includes any Order Forms as well as any policies or exhibits that may be referenced herein.

 

I. DEFINITIONS

 

“Agreement” means this Terms of Service Agreement.

 

“Affiliate” means any entity that is controlled by, in control of, or is under common control with a party to this Agreement, in which “control” means either the power to direct the management or affairs of the entity or ownership of 50% or more of the voting securities of the entity.

 

Anonymous Data” means non-personally identifiable data with respect to Customer or its Visitors including learnings, logs, and data regarding use of the TUP e-comm services.

 

“Authorized Users” means Customer’s employees and/or contractors who are acting for Customer’s benefit and on its behalf.

 

“Automation” means the implementation of a UX/UI change on the Customer’s Property or Properties for the Customer’s Visitors.

 

“Bounce” refers to a Visitor leaving the Customer’s Property or Properties.

 

Confidential Information” means code, inventions, know-how, product plans, inventions, and technical and financial information exchanged under this Agreement, that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.

 

Confidential Information shall not include information that (a) was already known to the Party receiving it at the time of disclosure by the Party disclosing it; (b) was, or is, obtained by the Party receiving it from a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving party without the use of the disclosing Party’s Confidential Information.

 

“Conversion” means a Customer’s Visitor has completed a purchase.

 

Customer Data” means physical or electronic data and information submitted by or for the Customer to use the Services.

 

Dashboard” means a website that TUP hosts allowing the Customer to see its data and allow, dismiss or monitor automations and the effects of those automations. 

 

“Content” means text, images, videos or other content for the Customer Property that Customer selects for use with the TUP Service. 

 

“Customer Data” means: (i) Content; (ii) Submitted Data; and (iii) Visitor data.

 

“Customer Property or Properties” means a webpage, portal, mobile application, or platform owned or managed by the Customer on which the Services will be deployed.

 

“Order Form” means any TUP ordering documentation or online sign-up or subscription flow that references this Agreement.

“Session” means when a Visitor visits the Customer Property or Properties and visits pages on said properties. A Visitor can have multiple sessions in one day. A session will be deemed terminated when a Visitor exits the webpage or when there are more than 20 minutes of inactivity.

 

“Submitted Data” means data uploaded, inputted or otherwise submitted by the Customer to TUP, including Third-Party Content.

“Technology” means any and all related or underlying documentation to the services TUP is providing the Customer, including but not limited to code, know-how, logos and templates, style sheets as well as anything delivered as part of support or other services, and any updates, modifications or derivative works of any of the foregoing, including feedback.

“Third-Party Content” means content, data or other materials that Customer provides to TUP from its third-party data providers, including through Add-Ons used by Customer.  

“Third-Party Product” means any applications, integrations, software, code, online services, systems, other products, and Add-Ons not developed by TUP.

“TUP Proprietary Material” means and includes software, algorithms, documentation, tools, techniques, methodologies, or other material arising out of, or related to this Agreement, which is not Work Product. All such material is proprietary to TUP.

 

“Visitor” means any end-user of a Customer Property or platform.

“Visitor Data” means the data concerning the characteristics and activities of Visitors on the Customer Properties collected for Customer by TUP.

“Work Product” means such reports, documentation, files, media and other materials created and produced by TUP exclusively for Customer in connection with the Services rendered hereunder and is marked or designated as such on such material.

 

II. SCOPE OF SERVICES

 

TUP’s e-comm machine learning model/platform enables Customers to individualize their Visitors’ experience by simultaneously and systematically combining and testing several variables. TUP deploys customized styling for each of the Customer’s Visitors based on their past data and initial interactions.

 

All Services are hosted on infrastructure managed by TUP. To use and integrate the services offered by TUP, Customers will be required to use Google Tag Manager or place a JavaScript snippet into the header of their source code to perform the required data collection. 

 

The above services are offered in three (3) different versions:

 

TRIAL – 3 variables

 

The Trial Version is offered free of charge. It includes:

 

  • Automations for up to 20,000 sessions (proposed adjustments relating to UX/UI which the Customer can choose to deploy, monitor, pause or dismiss. These automations will appear on the Customer’s dashboard; and
  • Full Analytics Dashboard – allowing Customers to understand how UX/UI elements influence their metrics and user flow as well as their specific demographics.

 

If a Customer registers for a free trial of the TUP e-comm services, TUP will make the services available on a trial basis and free of charge to the Customer until the earlier of:

  1. the end of the free trial period (20,000 sessions) or the start date of Customer’s paid subscription.
  2. During the free trial period:
    1. the services are provided “as is” and without warranty of any kind;
    2. TUP may suspend, limit, or terminate the services for any reason at any time without notice, and
    3. TUP will not be liable to Customer for damages of any kind related to Customer’s use of the services. 

 

Upon completion of the 20,000 sessions, automations, UX/UI testing and access to the dashboard will be contingent upon a subscription with TUP for the provision of TUP e-comm services. At the expiration of the trial version and with the consent of the Customer, TUP will continue to collect the Customer’s data. Consent may be given by leaving the Google Tag on the Customer’s Property/Properties or the JavaScript snippet in the header of Customer’s source code allowing TUP to continue collecting data.

 

Below is a description of TUP’s e-comm subscription plans. 

 

MONTHLY – 10 variables

 

The monthly version includes:

 

  • Unlimited automations (as described in the trial version);
  • Full Analytics Dashboard (as described in the trial version); and
  • Customer Support – all inquiries are responded to in less than 24 business hours.

 

Monthly Plans to select from include:

 

  1. 20,000 sessions for $400.00/month
  2. 40,000 sessions for $700.00/month
  3. 80,000 sessions for $1,300.00/month
  4. 160,000 sessions for $2,400.00/month
  5. 320,000 sessions for $4,000.00/month

 

 

CONTRACT – Unlimited variables

 

The contract version includes:

 

  • One hundred percent (100%) fully personalized/customized UX/UI elements as well as add customer segmentation and cross-platform customer recognition;
  • Integration with Customer’s Digital Campaign(s) – this feature allows the Customer to understand and track its Visitors from the time they click on Customer’s digital advertising to conversion;
  • Unlimited automations – TUP will notify the Customer of demographic-specific UX/UI adjustments that will positively influence the metrics (. These automations will appear on the Customer’s dashboard at which point Customer may choose to monitor, deploy, pause or dismiss each of the automations;
  • Full Analytics Dashboard – (as described in trial version); and
  • Premium Support – dedicated 24/7 Customer service manager

 

III. RIGHT TO USE TUP-ECOMM SERVICES

 

Subject to the terms and conditions of this Agreement, TUP grants Customer a worldwide, limited, non-exclusive and non-transferable licensable right to access and use the TUP e-comm services described herein, solely for Customer’s internal business purposes and only as expressly permitted in this Agreement. 

 

Use by Others: Customer may permit its Authorized Users to use TUP’s e-comm service, provided their use is for Customer’s benefit only and remains in compliance with this Agreement. Customer will be responsible and liable for all Authorized Users’ use and access and their compliance with the terms and conditions of this Agreement. 

 

General Restrictions: Customer must not (and must not allow any third party to: 

(i) rent, lease, copy, transfer, resell, sublicense, , time-share, or otherwise provide access to TUP e-comm services to a third party (except Authorized Users); (ii) incorporate the TUP e-comm services (or any portion of it) with, or use it with or to provide, any site, product, or service, other than on Customer Properties owned-and-operated by Customer and as specifically permitted above; (iii) publicly disseminate information regarding the performance of the TUP e-comm services (which is deemed TUP’s Confidential Information); (iv) modify or create a derivative work of the TUP e-comm services or any portion of it; (v) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any TUP e-comm services, except to the extent expressly permitted by applicable law and then only with advance notice to TUP; (vi) break or circumvent any security measures, rate limits, or usage tracking of the TUP e-comm services, or configure the TUP e-comm services (or any component thereof) to avoid incurring fees; (vii) access the TUP e-comm services for the purpose of building a competitive product or service or copying its features or user interface; (viii) use the TUP e-comm services for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication without TUP’s prior written consent; or (ix) remove or obscure any proprietary or other notices contained in the TUP e-comm services, including in any reports or output obtained from the TUP e-comm services. 

 

IV. TUP RESPONSIBILITIES, REPRESENTATIONS & WARRANTIES

 

In providing support to the Customer for TUP’s e-comm services, TUP agrees to:

 

  1. Communicate with Customer on matters related to the use of, and the identification and resolution of errors in the service, provided, however, that this shall not extend to the provision of training services;

 

  1. 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; or at TUP’s discretion, provide a service credit to the Customer equivalent to the remaining fees on pro-rata basis. The service credit will be only for errors resulting solely from the malfunctioning of a service provided by TUP.

 

  1. Correct the errors or provide service credits for errors [reference in section IV (ii) above] provided that the Customer notify TUP in writing of such errors within 7 days of receipt of the services believed to contain the errors.

 

Customer expressly agrees that use of the TUP e-comm service is at the Customer’s sole risk. The above-mentioned support and credits will be the Customer’s sole remedy in relation to the provision of the services rendered under this Agreement. TUP and its subsidiaries, affiliates, officers, employees, agents, partners, vendors, and licensors expressly disclaim all warranties of any kind, whether express or implied, including, but not limited to the implied warranty of merchantability, fitness for a particular purpose, and non-infringement. Customer hereby agrees that the terms of this Agreement shall not be altered due to custom or usage or due to the parties’ course of dealing or course of performance under this Agreement.

 

TUP E-Commerce Ecosystem Evaluation CUSTOMER SATISFACTION GUARANTEE

 

Our number one priority here at TUP, is your happiness. This means that we stand by our products/services 100%, no questions asked. If you are not satisfied with the insights provided in relation to the Ecosystem Evaluation services that you have purchased and received, we will offer you a full refund to a maximum value of $500.00. Just reach out to our Customer Satisfaction Team. All requests for reimbursement should be sent via email to: support@tup.solutions or by mailing a physical copy of the request to: 45 Charles Hommel Rd, Saugerties, NY, 12477. In order for us to continually improve our services, we would be grateful if you could provide us with your reasons for requesting a refund.

 

 

V. CUSTOMER RESPONSIBILITIES, REPRESENTATIONS & WARRANTIES

 

The Customer agrees to:

 

  1. Provide all necessary data or other required materials or information to TUP on schedule or in a timely manner to enable TUP to provide the Customer with access to the TUP e-comm services;

 

  1. Ensure accuracy, legibility, and completeness of all data supplied to TUP and be solely responsible for the results obtained from Customer’s use of any of the services;

 

  1. Control, and be responsible for the use of, account information, user ids, and passwords related to the services where required.

 

  1. Assume the risk of any issues or problems resulting from the Customer’s consumption of the services including the content, accuracy, completeness, competence, or consistency of all programs, files, documentation, test data, sample output, or other information, resources, personnel used by Customer and for all activities that Customer conducts with the assistance of the services.

 

Customer acknowledges that TUP makes no representation, warranty, or assurance that TUP’s software and systems or the services will be compatible with the Customer’s Properties, operations, equipment, or software. 

Customer representations: Customer represents and warrants to TUP that the: 

  1. information provided to TUP for the purpose of using TUP e-comm services is accurate; 

 

  1. Customer, its properties and their operations have complied with, and will continue to comply with all applicable laws relating to the  collection, storage, processing and transfer of information pertaining to natural persons, and rules made thereunder along with the relevant terms of any privacy policies or consents made available by the Customer, to its Visitors or any other persons using the Properties, or their products and services. This shall include, without limitation, providing Visitors with sufficient notice of the nature of the services, data being collected through them, and obtaining adequate consents and permissions for the collection and use of information that may be collected on any Properties, or maintained on any server or Service hosted or provided by TUP where such consents and permissions may be required;  and

 

  1. Customer is solely responsible for its data including, but not limited to: (a) any claims relating to Customer data; (b) any claims that Customer data infringes, misappropriates or otherwise violates the rights of any third party and shall indemnify TUP to the extent of such claim or violation.

 


VI. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP

  1. Ownership: All intellectual property rights, including any software, owned by a party, its licensors or subcontractors as on the effective date of this Agreement shall continue to be owned by such party, its licensors or subcontractors and, except as expressly provided in this Agreement, the other party shall not acquire any right, title, or interest in or to such intellectual property rights. TUP shall own all rights, titles, and interests in and to any materials created or developed by TUP or its subcontractors for its internal use or for assisting the Customer in the provision of the services including TUP’s Proprietary  Material and Customer does not acquire any interest, right or title thereto.
  1. Work Product: Upon the compliance with its obligations (including those pertaining to payment) under this Agreement, Customer shall own all rights, titles, and interests in any Work Product. The Work Product shall constitute work-made-for-hire belonging exclusively to the Customer. The Customer retains the right to modify the Work Product or to merge the Work Product into other documents or other materials owned or utilized by the Customer.
  2. Rights in Customer Data: As between the parties, Customer retains all rights, title, and interest (including any intellectual property rights) in and to the Customer Data, all Customer Properties, and all content contained within them (excluding any TUP Technology). Customer hereby grants TUP a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, and create derivative works of the Customer Data solely to the extent necessary to provide the TUP e-comm services and services related thereto. TUP shall not be liable for any third-party claims, liability or disputes pertaining to intellectual property-related aspects of the Work Product, Customer Properties as well as Customer Data.
  3. The license of Customer Software and Intellectual Property: Customer agrees to grant to TUP, solely for debugging and troubleshooting of TUP e-comm services by TUP’s support team, access to any tool or application used by the Customer to help in the resolution of the issue. Customer represents and warrants that: (a) Customer is either the owner of such intellectual property rights or software or is authorized by its owner to include it under this Agreement; and (b) TUP has the right during the term of the Agreement to use such intellectual property rights and software for the purpose of providing the services to Customer as contemplated by this Agreement.

Anonymous Data: Customer agrees that TUP will have the right to generate Anonymous Data and that Anonymous Data is TUP Technology, which TUP may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve TUP’s products and services and to create and distribute reports and other materials). For clarity, TUP will only disclose Anonymous Data externally in a de-identified (anonymous) form that does not identify Customer, Authorized Users, or Visitors, and that is stripped of all persistent identifiers (such as device identifiers, IP addresses, and cookie IDs). Customer is not responsible for TUP’s use of Anonymous Data.

VII. SERVICE USAGE RESTRICTIONS

Customer represents that it will not:

  1. make any service or content available to anyone other than Customer or its Authorized Agents and Visitors, or use any service or content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise;
  2. sell, resell, license, sublicense, distribute, make available, rent or lease any of the TUP e-comm services;
  3. use TUP e-comm services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
  4. interfere with or disrupt the integrity or performance of TUP e-comm services;
  5. attempt to gain unauthorized access to any TUP e-comm services or its related systems or networks;
  6. permit direct or indirect access to or use of any TUP e-comm services in a way that circumvents their intended usage, or a contractual usage limit, or use any TUP e-comm services to access or use any of TUP’s intellectual property except as permitted under this Agreement;
  7. modify, copy, or create derivative works based on the TUP e-comm services or any part, feature, function, or user interface thereof;
  8. copy content except as permitted herein and except to the extent permitted by applicable law;

VIII. DATA SECURITY & PRIVACY

TUP will maintain commercially reasonable and appropriate administrative, physical, organizational and technical measures/safeguards for the protection of the security, confidentiality, integrity, and privacy of Customer Data. These safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or its Agents), namely: (i) storing Customer Data on servers located in a physically secured location; and (ii) using firewalls, access controls, and similar security technology designed to protect Customer Data from unauthorized disclosure and modification.

The data TUP collects to provide the TUP e-comm services includes but is not limited to: time and location of taps and clicks; time, direction and length of swipes and scrolls; URL’s visited, sources; screen and browser dimensions; device type; items added and removed from cart; changes to quantity of items in cart; links clicked to navigate between pages; html, JavaScript and CSS files; time required to load the page; and the IP address. 

TUP does not provide an archiving system. All of the data will be encrypted and stored for no longer than one (1) year. No personal Visitor data will ever be gathered or stored (this includes email addresses, physical address, credit card numbers, names, and/or phone numbers). Each of the Customer’s Visitors to the Customer Properties is assigned an ID which allows TUP to track that specific Visitor’s behaviors (scrolls, clicks, paths, etc.) and add cookies to the Visitor’s browser.

 

IX. TERM, TERMINATION OF SERVICE

 

  1. Term:  This Agreement is effective as per the duration set out on the Order Form.
  1. Renewal of Term: This Agreement shall automatically renew for additional, successive renewal term(s). The renewal will be on the terms and conditions agreed herein unless either party gives the other written notice of non-renewal per the stipulations below.
  2. Notice for Non-Renewal: Either party may provide written notice of its intent to not renew at least ten (10) days prior to the end of the then-current Term. Customer may use the cancellation option within the Dashboard.
  3. Termination by Customer: Customer may terminate this Agreement or any applicable Order Form before the end of the Term without liability (except for amounts due for Services provided up to the effective date of termination) if TUP:
  1. Fails to provide the Services in accordance with the terms of this Agreement in that such failure causes material harm to Customer and TUP does not cure the failure within 30 days of receipt of the notice in writing from Customer describing the failure, in reasonable details.
    1. Materially violates any other provision of this Agreement and fails to cure the violation within 30 days of receipt of the notice in writing from Customer describing the violation in reasonable details.
    2. If this Agreement is terminated pursuant to this Clause, TUP will refund the fees paid to it for the remainder of the Term after the effective date of termination.
  1. Termination / Suspension by TUP: TUP may terminate this Agreement and any applicable Order Form or suspend the Services before the end of the Term without liability:
    1. On 30 days’ notice to Customer, if Customer is overdue on the payment of any amount due under the agreed Order Form;
    2. If Customer materially violates any other provision of this Agreement and fails to cure the violation within 30 days’ notice in writing from TUP describing the violation in reasonable detail;
    3. Immediately on written notice upon Customer becoming insolvent or bankrupt within the meaning of the Bankruptcy and Insolvency Laws; and
    4. Immediately on written notice upon TUP being of the reasonable opinion that Customer’s use of the Services violates any applicable law, rule or regulation.
  2. During suspension: The Customer will not be able to access the Services. TUP will use commercially reasonable efforts to give Customer advance written notice of the suspension of Service unless law enforcement or governmental agency directs otherwise or suspension without notice is necessary to protect TUP or its other customers.

X. FEES, BILLING, TAXES & CHARGES 

  1. Fees: The fees set forth in the Order Form shall be effective for the Term. In case of renewal of Term, change in Order Form or a new Order Form, the fee will be as per the then applicable pricing of Services. Customer agrees that:
    1. Fee is based on Services subscriptions purchased and not actual usage of the Service;
    1. payment obligations are binding, and fees paid are non-refundable; and
    2.  no refund is allowed for downgrade of subscription mentioned in an active Order Form.
  1. Billing and Payment Arrangements: For payment, TUP shall provide an electronic invoice to the Customer. Customer may view and print an invoice for Customer’s Account. TUP will bill Customer upon execution of this Agreement at the fee set forth in Order Form on the date mentioned in the Order Form on a frequency mutually agreed in the Order Form for all recurring fees. If Customer fails to pay the fee within the time frame mentioned in the Order Form, 1.5% interest charge per month or the maximum rate permitted by law, whichever is lower, will be assessed on the unpaid amount after the due date as a late fee. The Customer acknowledges and agrees that the late fee represents a genuine pre-estimate of the possible damage that TUP will suffer in the event of non-payment and/or delayed payment of the fees by the Customer. For recurring fees, no refund or adjustment for plan downgrades, upgrades, or elimination of plan features within the current billing period shall be issued. Invoices/payments are irrevocably deemed final and accepted by Customer unless disputed or sought clarification before subscribing to the Service.
  2. Payment by Credit Card/Wire Transfer/Cheque/ACH Debit: If Customer is paying by credit card, the Customer shall always provide and keep current and updated Customer’s contact, credit card, if applicable, and billing information on the Dashboard. Customer authorizes TUP to charge the Customer credit card or bank account for all fees payable at the beginning of the Term and all subsequent billing periods, including upgrades. Customer further authorizes TUP to use a third party to process payments and invoicing and consents to the disclosure of Customer payment information to such third party. 
  3. Taxes: Customer acknowledges that all applicable taxes, duties, or government levies whatsoever are not included in the fees and expenses charged under this Agreement. Customer will make timely payment of all such taxes, duties, or government levies related to this Agreement.

XI. LIMITATION OF LIABILITY 

  1. TUP and  its subsidiaries, affiliates, officers, employees, agents, partners, vendors, and/or licensors shall not be liable for any indirect, incidental, special, punitive, or consequential damages, including but not limited to damages for lost profits, business interruption, loss of programs or information, loss of data, violation of data protection law and the like, that result from the use or inability to use the Service or from mistakes, omissions, interruptions, deletion of files or directories, errors, defects, delays in operation, or transmission, regardless of whether TUP has been advised of such damages or their possibility.
  1. Notwithstanding anything to the contrary in this Agreement, TUP’s aggregate liability under or in connection with the Agreement, whether arising from contract, negligence, tort, data protection law or otherwise, shall in any event not exceed the amount paid by Customer under the Agreement in the preceding twelve (12) calendar months.

XII. CONFIDENTIALITY

  1. TUP will not use any of Customer’s Confidential Information except in connection with the performance of the Services or the exercise of its rights under this Agreement and will take all reasonable precautions to maintain the confidentiality of Customer’s Confidential Information and to prevent the unauthorized disclosure to others of the Confidential Information. TUP shall implement industry-standard security procedures such as appropriate firewall, encryption, and access security measures to safeguard the Confidential Information.
  1. TUP will only disclose the Confidential Information to those of its employees and permitted agents and subcontractors who have a need to know and require access to the Confidential Information as may be reasonably necessary for the exercise of TUP’s rights and performance of the Services under this Agreement. Notwithstanding anything to the contrary in this Agreement, TUP will not be required to keep confidential and may use or license without restriction, any ideas, concepts, know-how, or techniques related to information processing which are developed by TUP in the performance of Services.
  1. Notwithstanding the foregoing, TUP shall be permitted to:
    1. Monitor Customer’s use of the Services;
    2. Contact Customer to inform them of upgrades and/or of beneficial modifications to their current subscriptions;
    3. Provide any information, including the Confidential Information, required by law or regulation to be disclosed, or in response to a formal or informal request from law enforcement or government agency or order of a court of competent jurisdiction

XIII. INDEMNIFICATION

Parties shall indemnify, defend, and hold harmless each other (and their subsidiaries, affiliates, officers, employees, agents, partners, mandatories, vendors, and licensors) of any and all claims (including third-party claims) arising as a result of or in relation to any breach of this Agreement or fault by the other party. 

XIV. MODIFICATION OF AGREEMENT

TUP may update, amend, modify, or supplement the terms and conditions of this Agreement from time to time and will notify the Customer regarding same. If at any time Customer does not agree with any amendment, modification or supplement to the terms and conditions of this Agreement, Customer may terminate this Agreement for convenience within 15 days of receipt of notice of the change. Customer’s continued use of Customer’s account and/or the services after the notice period will be conclusively deemed as acceptance by Customer of any such modifications or amendments.

XV. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the state of New York. Customer agrees, 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. In any action to enforce this Agreement, including, without limitation, any action by TUP for the recovery of fees due hereunder, Customer shall pay reasonable attorneys’ fees and costs in connection with such action.

XVI. SEVERABILITY

In the event that any one or more of the provisions contained 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; and this Agreement shall be construed as if such provision(s) had never been contained herein, provided that such provision(s) shall be curtailed, limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability.

XVII. WAIVER

No waiver by TUP of any breach by Customer of any of the provisions of this Agreement shall be deemed a waiver of any preceding or succeeding breach of this Agreement. No such waiver shall be effective unless it is in writing signed by the parties hereto, and then only to the extent expressly set forth in such writing.

XVIII. GENERAL PROVISIONS

  1. Right to use the logo: Customer agrees to let TUP use their organization’s logo in TUP’s customer list and at other places including but not limited to its website and promotional materials. This clause will survive expiry or termination of this Agreement.
  2. Independent Contractors: The relationship of the parties under this Agreement is that of independent contractors. Neither party will be deemed to be an employee, agent, partner, franchisor, franchisee nor legal representative of the other for any purpose and neither will have any right, power or authority to create any obligation or responsibility on behalf of the other.
  3. Feedback: If Customer elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to TUP, Customer hereby grants TUP a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, and distribute any feedback in any format and in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise, however TUP will not identify Customer as the source of the feedback. Nothing in this Agreement limits TUP’s right to independently use, develop, evaluate, or market products, whether incorporating feedback or otherwise.
  1. Force Majeure. Neither party will be liable for any delay or failure to perform its obligation under this Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act. Force Majeure does not include business interruptions due to COVID-19.

XIX. DISCLAIMER

ALL TUP TECHNOLOGY AND RELATED SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS – UNLESS OTHERWISE SPECIFIED. NEITHER TUP NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. TUP MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT ITS TECHNOLOGY WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, THAT CUSTOMER DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT TUP E-COMM TECHNOLOGY WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE. TUP DOES NOT GUARANTEE THAT SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL. TUP WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CUSTOMER PROPERTIES, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-TUP SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR REGULATED DATA RECEIVED FROM CUSTOMER IN BREACH OF THIS AGREEMENT, FOR THE COLLECTION, USE AND DISCLOSURE OF CUSTOMER DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CUSTOMER BASED UPON TUP TECHNOLOGY OR TUP’S RELATED SERVICES (INCLUDING CHANGES TO CUSTOMER PROPERTIES). THE DISCLAIMERS IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.