Terms and Conditions
This privacy notice discloses the privacy practices for Upkid. This privacy notice applies solely to information collected by this website. It will notify you of the following: What personally identifiable information is collected from you through the website, how it is used and with whom it may be shared. What choices are available to you regarding the use of your data. The security procedures in place to protect the misuse of your information. How you can correct any inaccuracies in the information.
Information Collection, Use, and Sharing.
Your Control Over Your Information
You may opt out of any future contacts from us at any time. You can do the following at any time by contacting us via the email address below:
• See what data we have about you, if any.
• Change/correct any data we have about you.
• Have us delete any data we have about you.
• Express any concern you have about our use of your data.
SEXUAL HARASSMENT & DISCRIMINATION
We believe in providing an open and supportive environment, free from all types of unlawful harassment and discrimination for our businesses and workers. We expect every Worker to support our values of fairness, decency and respect for others regardless of: race, color, religion, sex, national origin, ancestry, age, mental or physical disability, marital status, gender identity, gender expression or sexual orientation, pregnancy, childbirth or related medical conditions, pregnancy disability leave, status as a U.S. military veteran, or any other characteristic protected by state or federal discrimination laws. Because confusion often arises concerning the meaning of sexual harassment in particular, it deserves special mention. Sexual harassment may take many forms, including the following:
• Offensive and unwelcome sexual invitations, whether or not the Worker submits to the invitation, and particularly when a spoken or implied quid pro quo for sexual favors is a benefit of employment or continued employment.
• Offensive and unwelcome conduct of a sexual nature, including sexually–graphic spoken comments; offensive comments transmitted by e-mail or another messaging system; offensive or suggestive images or graphics whether physically present in the workplace or accessed over the Internet; or the possession of or use of sexually suggestive objects.
• Offensive and unwelcome physical contact of a sexual nature, including the touching of another’s body; the touching or display of one’s own body, or any similar contact.
HARASSMENT VIA MESSAGING
Workers and Business representatives are particularly cautioned that the use of e-mail, voice mail, social media or other electronic messaging systems, or the Internet, during employment or while on the Platform, may give rise to liability for harassment. Workers and Business representatives may not generate during a service engagement or while on the Platform, should not receive, and must not forward, any message or graphic that might be taken as offensive based on sex, gender, or other protected characteristic. This includes, for example, the generation or forwarding of offensive “humor” which contains offensive terms or images.
REPORTING CASES OF HARASSMENT TO BUSINESS
Any worker who believes that she or he has been subjected to unlawful harassment of any kind has the responsibility to report the harassment immediately to her or his Business Representative. If the Worker is uncomfortable reporting the harassment to her or his immediate Business Representative (whether because the immediate Representative has committed the harassment, or for any other reason whatsoever), the Worker must report the harassment to the next higher level of management above the immediate Representative or, if the Worker prefers, to the Human Resources Director.
REPORTING CASES OF HARASSMENT TO UPKID INC.
Any Worker or Business Representative who believes that she or he has witnessed or been subjected to unlawful harassment of any kind is encouraged to report harassment immediately on the Platform using the “Report a Problem” feature. The Upkid, Inc. is committed to taking all reasonable steps to prevent harassment, and will make every reasonable effort promptly and completely to address and correct any harassment that may occur. However, Upkid, Inc. cannot take prompt and effective remedial action unless reports are provided on the Platform through the “Report a Problem” feature. Every report of harassment will be investigated promptly and impartially, with every effort to maintain Worker and Business confidentiality. The complainant and the accused will be informed of the results of the investigation. If Upkid, Inc. finds that its policy has been violated, it will take appropriate corrective action.
ZERO TOLERANCE & SUSPENSION
Workers and businesses are expected to maintain this policy at all times during work and while communicating on the platform. Upkid, Inc. maintains zero tolerance for theft, poor conduct, substance abuse, or harassment of any kind. Violations of this policy may result in immediate suspension from the platform.
You understand that suspension from the platform may come from any of the following reasons:
• Harassment of any kind to another individual while at the workplace.
• Lack of general professionalism that results in poor ratings or reports from others of misconduct at the workplace.
• Misuse of substances while at the workplace, or in a fashion that negatively impacts job performance.
• Theft of any kind while at the workplace.
• Being banned from multiple companies on the platform.
BACKGROUND CHECK AUTHORIZATION
You understand and authorize Upkid to order background reports that include information about or concerning you, including but not limited to: Law enforcement records; federal, state and local agencies; federal, state and local courts; motor vehicle records agencies; substance abuse testing records; if applicable, worker’s compensation records, all other private and public sector repositories of information. The information disclosed from said background reports may be disclosed to Upkid and its agents.
Upkid, Inc. (“Upkid”) provides a service that allows independent contractors to connect with Upkid’s network of companies and other work providers (each, a “Business”) and enter into arrangements with one or more such Business for the performance of services.An index of defined terms used in this Agreement is set out in Section 21.
1. ACCEPTANCE OF TERMS
This Agreement constitutes a legal agreement between Upkid and the person named as “Contractor” in the registration process (“you” or “yours”). By clicking “ACCEPT”, the individual accepting this Agreement and requesting access to the Services represents that he/she is at least eighteen (18) years old and the person named as “Contractor.” By clicking “ACCEPT”, and/or accessing or using the Services (defined below), now or in the future, you indicate that you have read, understand, and agree to the terms of this Agreement and any posted guidelines or rules applicable to the Services.
2. DESCRIPTION OF SERVICES
A. Under this Agreement, Upkid provides a technology platform and related services through which contractors and Businesses can enter into arrangements for the performance of services for Businesses. The platform and related services are aimed at facilitating the formation of contracts between contractors and Businesses. As used in this Agreement, the “Services” means all of the services provided by Upkid to you as described generally in this Section.B. A core element of Upkid’s technology platform is a software application that Upkid provides to its contractors and Businesses. As used in this Agreement, the “Application” means the software used by Upkid (including the software application that Upkid provides to you) in connection with the Services.C. Through the Application, a Business may from time to time submit a request for services to Upkid (a “Service Request”), which will include (i) a description of the services to be provided by a contractor; (ii) special contractor qualifications, if any, required to perform the services; (iii) the deliverables to be provided, including the criteria determining completion of the job (the “Deliverables”); (iv) the date by which the services must be completed; and (v) the compensation to be paid to Contractor for completion of the services (the “Contractor Payment”). Upkid may pass along the Service Request to one or more contractors for possible acceptance.D. Through the Application, you may reach an agreement with the Business to perform the services, including such other terms in addition to, and not inconsistent with, those specified in the Service Request.You shall not agree to any change to the Deliverables or the Contractor Payment indicated in the Service Request, except by amendment of the Service Request by the Business through the Application.E. If you and the Business reach agreement and the Business retains you to perform the services, the Service Request will become a “Service Engagement”.F. Upkid reserves the right to modify, discontinue, temporarily or permanently, the Application and/or the Service Request or Engagement or any part thereof with or without notice.
3. LICENSE GRANT AND RESTRICTIONS
A. Subject to the terms of this Agreement and any applicable payments, Upkid grants you a personal, limited, nonexclusive, nontransferable license, so long as this Agreement remains in effect, to access and use the Application and the Services, solely for the purposes described herein, consistent with any description of the Services published by Upkid.B. Except as expressly permitted herein or by applicable law, you shall not (and shall not allow any third party to) do any of the following: (i) license, sublicense, copy, assign, loan, sell, resell, republish, upload, post, transfer, distribute, or commercially exploit to any third party the Application or the Services; (ii) modify or create derivative works based on the Application; (iii) decompile, disassemble, or reverse engineer the Application; (v) interfere with the proper working of the Services or prevent access to or use of the Services by other licensees or businesses; or (vi) use the Application or the Services except as contemplated by this Agreement.
4. DELIVERABLES AND CONTRACTOR PAYMENT
A. Normally, all Deliverables specified in a Service Engagement will be possible of completion in one day. A Service Engagement may provide for separate Deliverables associated with more than one Contractor Payment.B. You agree to use your reasonable best efforts to complete each Service Engagement in accordance with the requirements and specifications of the Business.By entering into a Service Engagement, you are entering into a binding agreement to provide services to the Business for the specified Contractor Payment. You must not accept a Service Request unless you are confident that you (i) understand the requirements of the job; (ii) have the ability to get to the job site; (iii) have the qualifications and ability to perform the requested services and complete all of the Deliverables; and (iv) will be able to complete the Deliverables within the requested time.C. Upkid will pay the Contractor Payment to you on behalf of the Business within seventy-two (72) hours after the Business’s acceptance of the relevant Deliverables and Upkid’s receipt of payment from the Business. The Contractor Payment will be Upkid’s only liability to you for services that you render under a Service Engagement. Upkid will not cover or reimburse any expenses associated with your performance of a Service Engagement. If there is a dispute between you and the Business regarding your completion of the Deliverables, you are solely responsible for resolving the dispute with the Business. Upkid will exercise its reasonable best efforts to collect payment from the Business promptly after you have completed the Deliverables, but Upkid does not guarantee such payments. You agree that Upkid will not be liable for any delay in payment to you based on Business’s refusal to accept the Deliverables or failure to make timely payment to Upkid.D. A Service Engagement may be canceled at any time by the Business at any time prior to commencement of performance, but any cancellation without at least six (6) hours’ notice to you will be subject to a cancellation fee.E. You agree that you will not cancel any Service Engagement without the consent of the Business.
5. USER ACCOUNT, PASSWORD, AND SECURITY
A. As a condition of using the Service, you agree to: (i) provide accurate, current, and complete information about yourself as prompted by the Service’s registration form, and (ii) maintain and promptly update the registration data to keep it accurate, current and complete.B. You will receive a password and account designation upon completing the Service’s registration process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account.C. Upkid will ask for your social security number as part of the registration process, which may be used to conduct a background check and which may be provided to our payment vendor, Stripe, to process payments and ensure the safety of your account.
6. BACKGROUND CHECK
As part of your registration with Upkid, you agree to execute a written consent for a background check. Your right to use the Application and the Services is conditioned upon a satisfactory background check, and you agree to any additional ongoing background checks that may be required by Upkid or a Business as a condition of your continued use of the Services.
A. Under this Agreement (and Upkid’s service agreement with Businesses), Upkid provides services to both contractors and Businesses, including providing a technology platform, aimed at facilitating the formation of contracts between contactors and Businesses. If you and a Business agree on terms and establish a Service Engagement, a contract is formed directly between you and the Business.B. UPKID’S SERVICES MAY BE USED ONLY FOR ENTERING INTO SERVICE ARRANGEMENTS UNDER INDEPENDENT CONTRACTOR RELATIONSHIPS. Businesses are referred to in this Agreement as “employers” for convenience of language only, lacking a better term. No Service Engagement is intended to create an “employment” relationship between you and any Business. You will not be eligible for any employee benefits. You will not be considered an employee of the Business for purposes of any laws related to employment termination, employment discrimination, harassment, workplace safety, workers’ compensation, unemployment benefits, minimum wage, overtime, or any claims for sick leave, holiday or vacation pay, or any other employee benefits. Neither Upkid nor the Business will deduct any amounts for withholding, unemployment, Social Security, or other taxes in connection with any Contractor Payment.C. Upkid will not provide you with any training or any equipment or materials needed for fulfillment of any Service Engagement, except to make available to you any training materials provided by the Business. Upkid will not in any way supervise, direct, or control any of your work for a Business.D. You acknowledge and agree that Upkid has no control over the workplace, and Upkid will have no liability arising out of or related to the workplace environment in which you perform services under a Service Engagement or the workplace conduct of employees or agents of the Business or others.E. You agree that Upkid will have no liability to you, in connection with any Service Engagement, for (i) any physical injury or death occurring at any location where you perform services under the Service Engagement, or (ii) any act or omission by any person that gives rise to any claim under employment laws, including laws related to employment termination, employment discrimination, harassment, and workplace safety, and any similar act or omission notwithstanding the non-applicability of such laws to you as an independent contractor; or (iii) any claim for overtime pay, sick leave, holiday or vacation pay, or any other employee benefits.F. UPKID DOES NOT MAKE ANY REPRESENTATION OR WARRANTY RELATING TO THE ACTIONS, HISTORY, INTEGRITY, OR SUITABILITY OF ANY Business.G. The parties agree that there exists no partnership or agency relationship between Upkid and any Business.No Business has authority to enter into any written or oral agreement, whether express or implied, on behalf of Upkid.H. Neither of the parties to this Agreement and none of the parties’ agents, employees, representatives, or independent contractors shall (i) be considered an agent, employee, or representative of the other party for any purpose whatsoever, (ii) have any authority to make any agreement or commitment for the other party or to incur liability or obligation in the other party’s name or on its behalf, or (iii) represent to third parties that either of them has any right so to bind the other party. Nothing contained in this Agreement shall be construed or interpreted as creating an agency, partnership, or joint venture relationship between the parties.
8. INDEPENDENT CONTRACTOR
A. You will be treated in all respects as an independent contractor in connection with your performance of a Service Engagement.You are responsible for providing your own tools and equipment unless the Business otherwise agrees.You are responsible for all taxes related to Contractor Payments, including quarterly tax payments to appropriate government authorities when required, and you agree to make all required tax filings and tax payments in a timely manner. If any services to be performed by you under a Service Engagement require any registration, license, or other authorization, you are responsible to obtain and maintain the necessary registration, license, or other authorization.B. When required by law, Upkid will report payments to you in connection with Service Engagements by filing form 1099-MISC with the Internal Revenue Service.C. Your response to a Service Request and your performance of a Service Engagement constitute a representation and warranty to Upkid that you are authorized to work as an independent contractor in the United States and that your performance of the Service Engagement will not violate any law or conflict with any obligation that you have to any person.
9. ADDITIONAL TERMS AND SERVICES
A. Certain features of the Application may be subject to additional terms, conditions, or registration requirements. Any violation of such terms, conditions, or registration requirements will constitute a breach of this Agreement.B. Upkid may offer services, features, products, and applications in addition to the Application and the Services. If you elect to use such services, you will be required to accept additional terms and conditions governing such services, and separate fees may apply.
10. INFORMATION AND FEEDBACK
A. You acknowledge that in accessing the Services, you may upload or enter certain data from your account(s) such as names, addresses, phone numbers, purchases, and sales, among others, to the Internet. You hereby grant Upkid permission to use information about yourself and your usage experience to enable Upkid to provide the Services to you, including updating and maintaining your data, addressing errors or service interruptions, and to enhance the types of data and services Upkid may provide to you in the future. You also grant Upkid permission to combine your data with that of others in a way that does not identify you to improve services, to create, market, or promote new Upkid offerings to you and others and to use such combined data to create, market, or promote new Upkid offerings.B. You acknowledge that all metadata and other information generated or submitted to Upkid by you and Businesses in connection with the Application and the Services are owned by Upkid.C. Upkid may provide you with a mechanism to provide feedback, suggestions, and ideas, if you choose, about its services (“Feedback”). You agree that Upkid may, in its sole discretion, use the Feedback in any way, including in future modifications to the Application and/or the Services and in multimedia works, advertising, marketing, and promotional materials relating to the Services. You hereby grant to Upkid a perpetual, worldwide, fully transferable, sublicensable (through multiple tiers), non-revocable, fully paid up, royalty free license to use, modify, create derivative works from, distribute, display, and otherwise exploit any information you provide to Upkid in Feedback.
12. GENERAL PRACTICES
You acknowledge and agree that Upkid may establish general practices and limits concerning use of the Service. Upkid reserves the right to log off accounts that are not active for an extended period of time. Upkid shall have no responsibility or liability for the deletion or failure to store any data or other information or materials maintained or transmitted by the Service. Such general practices and limits may be changed by Upkid at any time, in its sole discretion, with or without notice.
13. RESERVATION OF RIGHTS AND OWNERSHIP
The Application and the Services are licensed and not sold. Upkid reserves all rights not expressly granted to you in this Agreement. The Application and the Services are protected by copyright, trade secret, and other intellectual property laws. Upkid and its licensors, where applicable, own all right, title, and interest in and to the Application and the Services (and all intellectual property rights therein), including but not limited to its technology, content, derivatives, and modifications of the Services by whomsoever made.
14. NO WARRANTIES
A. THE APPLICATION AND THE SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, UPKID DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING THE SERVICES, CONTENT, AND RELATED MATERIALS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Upkid does not warrant the accuracy, reliability, completeness, usefulness, or quality of any content included in the Services. Upkid does not warrant that the Services are secure, free from bugs, interruption, or errors, or that the Services will meet your requirements.B. You are solely responsible for the selection of a Business for whom you desire to perform services and for the arrangement under which services are provided. Upkid is not liable for the action or inaction of any Business in connection with any Service Engagement and your performance of services thereunder. Upkid does not guarantee or warrant the Business’s performance in connection with any Service Engagement.C. Upkid does not guarantee you any minimum number of engagements.Until a Service Request becomes a Service Engagement, it may be accepted by other contractors or withdrawn by the Business. Upkid does not guarantee that a Service Request will remain open or available to you for any particular length of time. Upkid does not guarantee that you will be retained by the Business for every (or any) Service Request that you seek to accept.D. Upkid shall have no liability to you or any third party for any modification, suspension, or discontinuance of the Application or the Services or any part thereof.
15. LIMITATION OF LIABILITY AND DAMAGES
A. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE ENTIRE CUMULATIVE LIABILITY OF UPKID AND YOUR EXCLUSIVE REMEDY FOR ALL MATTERS OR CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAYABLE TO YOU UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.B. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, PROVIDER SHALL NOT BE LIABLE FOR ANY (i) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR (ii) DAMAGES RELATING TO TELECOMMUNICATIONS FAILURES, INTERNET AND ELECTRONIC COMMUNICATIONS FAILURES, DELAYS OR LIMITATIONS, LOSS, CORRUPTION, SECURITY, OR THEFT OF DATA, VIRUSES, SPYWARE; OR (iii) LOSS OF INCOME, ARISING OUT OF OR RELATED IN ANY WAY TO THE SERVICES, WHETHER BASED IN TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF PROVIDER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
You shall defend, indemnify, and hold harmless Upkid and its parents, affiliates, employees, and agents from and against any and all liabilities, losses, damages, costs, and other expenses, including attorneys’ fees, arising from or related to (i) a breach by you of any representation, warranty, covenant, or obligation in this Agreement; (ii) any intentional or negligent act or omission committed by you in connection with the performance (or failure to perform) any Service Engagement; and (iii) your violation of any law.
17. CONSENT TO CONDUCT BUSINESS ELECTRONICALLY
A. You agree that Upkid may send notices and other communications to you by email and/or may make communications available to you by posting them on the Application or on Upkid’s website. You consent to receive such communications electronically. You shall notify Upkid promptly of any change in your email address or other registration data.B. You certify that you have the ability to electronically retrieve, download, and print (i) this Agreement; (ii) all terms, policies, rules, notices, and forms (including IRS Form 1099-MISC) related to this Agreement and your relationship with Upkid hereunder; and (iii) all other items required by law.
18. MODIFICATION AND AMENDMENT
Upkid may change this Agreement from time to time, effective upon posting of the modified Agreement on its website or through the Application. Upkid may also notify you of the change by email or other electronic communication. You are responsible to review the Agreement periodically for changes. Upkid has the right to change, delete, discontinue, or impose conditions on any features or aspect of the Services, including but not limited to pricing, technical support options, and other product-related policies. Your continued use of the Services after Upkid’s publication of any changes shall constitute your acceptance of the changes.
Either party may terminate this Agreement without cause at any time, effective upon notice to the other party; provided, however, that termination of this Agreement will not relieve either party of its obligations related to any Service Engagement that has been entered into prior to the time of cancellation. Sections 5 (Fees), 9 (Information and Feedback), 12 (Reservation of Rights and Ownership), 13 (No Warranties), 14 (Limitation of Liability and Damages), 15 (Indemnification) 16 (Consent to Conduct Business Electronically), and 19 (Miscellaneous) shall survive any termination of this Agreement. Upkid shall have the right to terminate your password, account (or any part thereof), or use of the Service, at any time in its sole discretion, with or without cause and with or without prior notice. Upkid shall not be liable to you or any third party for any termination of your access to the Service.
A. This Agreement shall be governed by and construed in accordance with law of the state in which you reside, without regard to its rules regarding conflicts of law. Each of the parties consents to the jurisdiction of the courts located in that state with respect to all matters relating to this Agreement.B. Any controversy or claim arising out of or relating to this Agreement, or the breach of this Agreement, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except that the parties agree that arbitration will not afford an adequate remedy in connection with any violation of a party’s rights pertaining to any patent, copyright, trade secret, trademark, service mark, or other intellectual property, and the parties shall have the right to seek an injunction or other appropriate relief to restrain or remedy any such violation in any court having jurisdiction. Judgment upon the award of the arbitrator (or arbitrators) may be entered in any court having jurisdiction. Before filing a claim for arbitration, you agree first to inform Upkid of the complaint, including sufficient information to allow Upkid to evaluate the complaint, and afford Upkid at least sixty (60) days from its receipt of such information to resolve the matter informally. To the fullest extent permitted by applicable law, no arbitration or claim under this Agreement shall be joined to any other arbitration or claim, including any arbitration or claim involving any other current or former user of the Service, and no class arbitration proceeding shall be permitted. In no event shall any claim, action, or proceeding by either party related in any way to the Application and/or the Services be instituted more than one (1) year after the claim arose.C. This Agreement constitutes the entire agreement between the parties pertaining to its subject matter, and it supersedes any and all written or oral agreements previously existing between the parties with respect to such subject matter. Except for changes by Upkid as provided herein, no modification or amendment of this Agreement shall be binding unless executed in writing by both parties. No waiver shall be effective unless it is in writing and signed by the party against whom enforcement is sought.D. This Agreement may not be assigned by either party without the prior written consent of the other.E. If any of the provisions of this Agreement are held by a court or other tribunal having jurisdiction to be unenforceable, the parties intend that the provision shall be enforced to the maximum extent permissible and the remaining portions of this Agreement shall remain in full force and effect.
As used in this Agreement, the following terms have the following meanings:“Application” has the meaning given in Section 2.B.“Business” has the meaning given in the preamble.“Contractor Payment” has the meaning given in Section 2.C.“Deliverables” has the meaning given in Section 2.C.“Feedback” has the meaning given in Section 10.C.“Service Engagement” has the meaning given in Section 2.E.“Service Request” has the meaning given in Section 2.C.
CONFIDENTIALITY AGREEMENT (this “Agreement”)
A. PARTIES: Upkid, Inc. (“Upkid”)7305 Clear Meadow Way Eagle Mountain, UT 84005 Upkid Contract Worker or Contractor (“Recipient”) Upkid and Recipient are each referred to herein as a “Party” and collectively as the “Parties.”
B. PURPOSE OF AGREEMENT (the “Purpose”): The Parties intend to engage in discussions concerning a potential relationship related to UPKID’s business.
C. EFFECTIVE DATE: This Agreement shall be effective as of the Receipient’s electronic acceptance of UPKID’s Terms, Conditions and Services Agreement as required in the Upkid sign-up process.
D. AGREEMENT: Recipient agrees that Confidential Information shall be used solely in connection with the Purpose in accordance with the Standard Terms and Conditions attached hereto and by this reference made a part of this Agreement.
E. This Agreement constitutes a legal agreement between Upkid and the person named as “Contractor” in the registration process (“you” or “yours”). By clicking “ACCEPT”, the individual accepting this Agreement and requesting access to the Services represents that he/she is at least eighteen (18) years old and the person named as “Contractor.” By clicking “ACCEPT”, and/or accessing or using the Services (defined above), now or in the future, you indicate that you have read, understand, and agree to the terms of this Agreement and any posted guidelines or rules applicable to the Services.
STANDARD TERMS AND CONDITIONS
These terms and conditions apply to any Confidential Information disclosed by UPKID or any of its customers to Recipient for use by Recipient in connection with the Purpose. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Definition. The term “Confidential Information” as used herein shall mean any trade secrets, business and technical information (including, without limitation, information related to UPKID’s products, software, experimental work, customers, clients or suppliers) and other proprietary, confidential or non-public information (whether or not specifically labeled or identified as confidential) of UPKID, its affiliates or its or their directors, officers, employees, or customers or third parties to whom it owes a duty of confidentiality.
Exclusions. Confidential Information shall not include information if and to the extent the Recipient can demonstrate such information: (a) is or becomes known to the public other than by disclosure by the Recipient in violation of this Agreement; (b) was known to Recipient before disclosure hereunder, without a duty of confidentiality; (c) was independently developed by the Recipient outside of this Agreement and the Purpose and without reference to or use of any Confidential Information; or (d) was rightfully obtained by Recipient from third parties without a duty of confidentiality.
Non-Disclosure, Use and Ownership of Confidential Information.
Duty of Confidentiality. Recipient shall hold all Confidential Information in strict confidence, using at least the same degree of care to prevent unauthorized disclosure or access that it uses with its own confidential information of similar type (but in no event using less than a reasonable degree of care), and shall not disclose such Confidential Information to others, allow others to access it, or use it in any way, commercially or otherwise, except in direct furtherance of the Purpose. Recipient may disclose Confidential Information to its employees with a need to know such Confidential Information in connection with the Purpose; provided, however, that all such employees are bound by contractual obligations to maintain the confidentiality of the Confidential Information, which contractual obligations shall be at least as protective of the Confidential Information as those set forth in this Agreement.
Permitted Disclosure. If Recipient is requested to disclose all or any part of any Confidential Information under a discovery request, a subpoena, or inquiry issued by a court of competent jurisdiction or by a judicial, administrative, regulatory or governmental agency or legislative body or committee, Recipient shall, to the extent practicable and subject to applicable laws, give prompt written notice of such request to UPKID and shall give UPKID the opportunity to seek an appropriate confidentiality agreement, protective order or modification of any disclosure or to otherwise intervene, prevent, delay or otherwise affect the response to such request, and Recipient shall, at UPKID’s expense, cooperate in such efforts.
Nothing in the Agreement is intended to interfere with or discourage a good faith disclosure to any governmental entity related to a suspected violation of the law. Recipient cannot and will not be held criminally or civilly liable under any federal or state trade secret law for disclosing otherwise protected trade secrets and/or Confidential Information as long as the disclosure is made in (i) confidence to a federal, state, or local government official, directly or indirectly, or to an attorney and solely for the purpose of reporting or investigating a suspected violation of law; or (ii) a complaint or other document filed in a lawsuit or other proceeding, as long as such filing is made under seal. UPKID will not retaliate against Recipient in any way for a disclosure made in accordance with the law. Ownership; No Right or License; No Obligation on UPKID. All Confidential Information disclosed by UPKID hereunder, or to which Recipient accesses hereunder, shall at all times be the property of UPKID and UPKID shall own and retain all right, title and interest therein and thereto. Nothing in this Agreement shall be construed as conveying to Recipient any right, title or interest in or to any Confidential Information, or to convey any license to use, sell, exploit, copy or further develop any such Confidential Information, except as expressly set forth in Section 2.1. Nothing in this Agreement shall: (a) require UPKID to provide any Confidential Information to, or to update or correct any Confidential Information previously provided to, Recipient; or (b) be construed to require UPKID to enter into a more formal business engagement with Recipient, any further binding agreement with Recipient, or any other relationship or undertaking with Recipient.
Proprietary Rights. No license or right is granted under this Agreement by UPKID to Recipient, either expressly or by implication, under any invention, patent, patent application, patent claim, trade secret, or other proprietary right of UPKID. Recipient shall not include, without limitation, in any publication, patent application or filing for protection of intellectual property rights, the existence or the characteristics of the Confidential Information, the nature of this Agreement or the Parties’ relationship hereunder, or any information or materials of Recipient derived from the Confidential Information, in whole or in part, directly or indirectly, without the express written authorization of UPKID.
Term of Agreement and Return of Confidential Information.
Term. Recipient’s obligations under this Agreement shall survive and continue after the termination of any discussions or activities of the parties related to the Purpose, or until such time as the parties enter into a definitive agreement regarding their business relationship that expressly supersedes and replaces the confidentiality terms set forth herein.
Return of Confidential Information. UPKID may require the return, destruction or disposal of any or all Confidential Information at any time and for any or no reason during the term of this Agreement upon written notice to the Recipient. Without limiting the foregoing, if the parties determine not to pursue a business relationship in furtherance of the Purpose and cease communications with respect thereto, Recipient shall thereafter promptly return to UPKID all Confidential Information and all copies, summaries, excerpts and abstracts thereof then in its possession and recipient shall provide written confirmation and certification that Recipient has returned all such Confidential Information, copies, summaries, excerpts and abstracts to UPKID.
Recipient acknowledges and agrees that in the event of any breach of its obligations hereunder, UPKID shall be entitled to all remedies at law and in equity with respect to such breach. Recipient further acknowledges and agrees that in the event of a breach of its obligations hereunder, damages may not be an adequate remedy and UPKID shall be entitled to injunctive relief to restrain any such breach, threatened or actual, without the requirement of posting of a bond.
Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all contemporaneous oral agreements and all prior oral and written quotations, communications, agreements, understandings of the parties, and written or oral representations of either party with respect to the subject matter of this Agreement. If there are any conflicts or inconsistencies between this Agreement and any terms imposed by access to a data room site, the terms of this Agreement shall prevail. This Agreement shall not be amended or modified except by a written instrument executed by an authorized representative of each of UPKID and Recipient.
Severability. If any provision of this Agreement shall be held or declared to be invalid or unenforceable, such invalid or unenforceable provision shall not affect any other provision of this Agreement, and the remainder of this Agreement, and Recipient’s obligations hereunder, shall continue in full force and effect as though such provision had not been contained in this Agreement and, if permitted under applicable rules of construction and interpretation, such provision shall be reformed to the extent necessary to render such provision valid and enforceable and to reflect the intent of the parties to the maximum extent possible under applicable law.
Governing Law and Venue. This Agreement is to be governed by and construed in accordance with the internal laws of the State of Utah, excluding that body of law pertaining to conflict of laws. ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT IN THE STATE OR FEDERAL COURTS WITHIN UTAH, THE PARTIES IRREVOCABLY AGREE TO THE NON-EXCLUSIVE JURISDICTION OF, A UPKID VENUE IN, SUCH COURTS FOR SUCH PURPOSES A UPKID RECIPIENT HEREBY WAIVES ANY CLAIM OR DEFENSE THAT SUCH FORUM IN SUCH COURTS IS NOT CONVENIENT OR PROPER.
Assignment. This Agreement shall be binding on the parties and their respective successors and permitted assigns. Recipient may not assign this Agreement either in whole or in part without the prior written consent of UPKID, which consent shall be granted or withheld in UPKID’s reasonable discretion. Any attempted assignment or delegation without such consent will be void.
Counterparts and Digital Images. This Agreement may be executed in any number of counterparts, including by electronic signature, PDF or facsimile, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument. This Agreement may be digitally imaged, stored and transmitted electronically, and such images of the fully executed Agreement may be introduced as evidence in any proceeding as if such were original business records.