LEGAL

Terms of Use

Last Updated: May 29, 2024

IMPORTANT – READ CAREFULLY: This Master Services Agreement (this “Agreement”) is a legal contract between you (either as an individual or as single business entity [“You” or “Client”]) and Uplist, LLC, a Washington Limited Liability Company (“Uplist”) to access, navigate, download, or otherwise use the Platform (as defined below) owned by Uplist.

BY CLICKING THE “ACCEPT” BUTTON, OR BY DOWNLOADING, INSTALLING OR OTHERWISE ACCESSING THE PLATFORM, YOU AGREE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS AND FURTHERMORE THAT YOU HAVE THE NECESSARY AUTHORIZATION TO AGREE TO THESE TERMS AND CONDITIONS ON BEHALF OF THE LEGAL ENTITY THAT YOU REPRESENT.  IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, ACCESS OR OTHERWISE USE THE PLATFORM.

UPLIST GRANTS YOU ACCESS TO THE PLATFORM SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:

  1.        THE PLATFORM.
    1. Use of the Platform.  During the Term of this Agreement (as defined at Section 11.1), Uplist grants Client a non-exclusive, non-transferable, non-sublicensable license to access and use Uplist’s proprietary Data HUB platform (the “Platform”) pursuant to the terms and conditions of this Agreement.
    2. Authorized Access.  Client shall not allow access to or use of the Platform by anyone other than an employee of Client who has been registered to access and use the Platform on Client’s behalf and assigned a unique username-password combination (“Client User”).
    3. Enforcement.  Uplist may suspend or terminate Client’s access to the Platform upon notice to Client in the event that Uplist reasonably determines that any Client User has violated the terms and conditions of this Agreement.
    4. Platform Revisions.  Uplist may revise Platform features and functions at any time, including but not limited to removing features and functions.
  2.        PLATFORM FEES AND PAYMENT TERMS.
    1. Monthly Access Fee.   Uplist will charge Client a monthly (may be paid annually) access fee which covers Client’s access to the Platform.
    2. Activation Fee.  Uplist may charge Client an Activation Fee to activate Client’s access to the Platform.
    3. Professional Services.  Uplist will charge Client fees associated with requests made by Client for Uplist to provide Client with services as Uplist may choose to make available (“Professional Services”).  Requests for Professional Services are handled through a Work Order.  The Work Order template is included in this SOW as Exhibit A with an electronic version available on the Uplist Service Desk.
    4. Fees and Changes to Fees.  The fees referenced above can be found at getuplist.com.  Uplist may change fees set forth herein, at any time, with thirty (30) day prior notice via email (for clarity, the provisions of Section 12.7 of this Agreement shall not pertain to notices regarding changes to fees as only email notice will be provided). Client’s continued use of the Platform will constitute its acceptance of the changes.
    5. Collection and Taxes.  All fees, taxes and other charges shall be billed to Client’s credit card.  Client shall be responsible for and shall pay Uplist all currency conversion charges, sales, use, value-added, personal property or other tax, duty or levy of any kind, including interest and penalties thereon (“Taxes”), whether imposed now or hereinafter by any governmental entity.  Client shall promptly pay Uplist in the event of any refusal by Client’s credit card issuer to pay any amount to Uplist for any reason. Client agrees to pay interest at the rate of 1.5% per month on any outstanding balance, together with costs of collection, including reasonable attorney’s fees and costs.  In the event Client fails to pay any amounts due within 30 days of coming due, Uplist may immediately suspend or terminate this Agreement and Client’s access to the Platform.
  3.        PARTNER APPROVAL AND RISK.
    1. Partner Approval and Risk.  Client agrees and acknowledges that it will maintain and control its relationships on the Platform, including decisions to approve, disapprove, or do business with other Platform users.  Additionally, Client acknowledges that activities performed on the Platform may result in various financial risks to Client, and Client further acknowledges that such risks are the sole responsibility of Client.
    2. Uplist Hold Harmless.  Client agrees and acknowledges that any and all risks associated with interacting with other users or legal entities participating on the Platform is assumed by Client, and Client agrees to hold Uplist harmless from any disputes between Client and other Platform users associated with activity on the Platform.
  4.        CLIENT DATA & PRIVACY.
    1. Client Data.  Client grants to Uplist a non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license to use, copy, and distribute loan data that Client uploads to the Platform (“Client Data”). Client is solely responsible for the Client Data that it uploads to the Platform.  Client represents and warrants that it owns all rights required to upload the Client Data.
    2. Use of Client Data.  Uplist will not use Client Data without prior written consent, other than as necessary to facilitate the Platform. Notwithstanding the foregoing, Uplist may disclose Client Data as required by applicable law or upon legal request by a governmental authority.
    3. Data Accuracy.  Uplist shall not be liable for the accuracy of data uploaded to the Platform by Client, Client Users and/or other Platform users, including without limitation Client Data.
    4. Aggregate & Anonymized Data.  Notwithstanding anything to the contrary set forth herein, Uplist may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion (“Aggregate Data” refers to Client Data with the following removed: personally identifiable information including the names and street addresses of Client and any of its Client Users or clients).  Uplist owns all right, title, and interest in and to the Aggregate Data.
  5.        RESPONSIBILITIES & RESTRICTIONS.
    1. Acceptable Use.  Client shall comply with all terms of this Agreement, and Client shall not: (a) use the Platform for service bureau or time-sharing purposes or in any other way allow unauthorized third parties to exploit the Platform; (b) provide Platform passwords or other log-in information to any third party; (c) share non-public Platform features or content with any third party; or (d) access the Platform in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Platform, or to copy any ideas, features, functions or graphics of the Platform.

 

  1. IP & FEEDBACK.
    1. IP Rights to the Platform.  Uplist retains all right, title, and interest in and to the Platform, and all intellectual property rights therein or relating thereto, including without limitation all software used to provide the Platform and all graphics, user interfaces, logos, and trademarks reproduced through the Platform.  Additionally, Uplist owns all right, title and interest to any changes made to the Platform as a result of Client, Client User or Client client feedback.   
  2.        CONFIDENTIAL INFORMATION. 
    1. Injunction.  Each party agrees that a breach of this section would cause the other party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the non-breaching party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

7.1         Each party (a “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose information of a confidential nature including, without limitation, the Platform, product information, data, pricing, financial information, end user information, software, specifications, research and development and proprietary algorithms or other materials that is (a) clearly and conspicuously marked as “confidential” or with a similar designation or (b) is disclosed in a manner in which the Disclosing Party reasonably communicated, or the Receiving Party should reasonably have understood under the circumstances, that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used (“Confidential Information”). The terms and conditions of this Agreement also constitute the Confidential Information of each party. The Receiving Party agrees, for itself and its agents and employees, that it will not publish, disclose or otherwise divulge or use for its own purposes, other than the use (by Client) or provision (by Uplist) of the Platform and/or the services contemplated by this Agreement, any Confidential Information of the Disclosing Party furnished to it by such Disclosing Party without the prior written approval of the Disclosing Party in each instance.  Each party will use at least the same level of care to maintain the Confidential Information of the other party as it uses to maintain the confidentiality of its own non-public information, and in no event less than a reasonable degree of care. In the event that the Receiving Party is required to disclose Confidential Information in accordance with judicial or governmental order or requirement, the Receiving Party shall promptly notify the Disclosing Party in order to allow such party to contest the order or requirement or seek confidential treatment for such information. Upon termination or expiration of this Agreement, upon the request of a Disclosing Party, the Receiving Party agrees to return to the Disclosing Party all of such other party’s Confidential Information that is reduced to one or more writing, drawing, schematic, tape, disk or other form of documentation, or to certify to the Disclosing Party in writing that all such material has been destroyed.

  1. Termination & Return.  With respect to each item of Confidential Information, the obligations of this section will terminate two (2) years after the date of disclosure.  Upon termination of this Agreement, each party shall return all copies of Confidential Information to the other party or certify, in writing, the destruction thereof.
  2. Retention of Rights.  This Agreement does not transfer ownership of or grant a license to Confidential Information.  Each party will retain all right, title, and interest in its own Confidential Information.
  1.        REPRESENTATIONS & WARRANTIES.
    1. From Uplist. Uplist represents and warrants that it is the owner of the Platform and of each and every component thereof, or is the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Uplist’s representations and warranties in the preceding sentence do not apply to use of the Platform in combination with hardware or software not provided by Uplist.  In the event of a breach of this Section 8.1, Uplist, at its own expense, will promptly take the following actions: (a) secure for Client the right to continue using the Platform; (b) replace or modify the Platform to make it non-infringing; or (c) terminate the infringing features of the Platform and refund to Client any prepaid fees for such features, in proportion to the portion of the Term left after such termination.
    2. From Client.
      1. Client represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the Platform; and (c) it is a corporation, limited liability company, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
      2. Client acknowledges and agrees that except for Uplist’s obligations regarding proper operation of the Platform as expressly set forth herein, Client is solely responsible for safeguarding Client Data and for the backup and restoration of Client Data.  Uplist is not responsible for the accuracy and/or completion of Client Data.
      3. Client acknowledges and agrees that Uplist merely provides technological tools that vendors, brokers, agents, lenders, buyers, sellers, investors, conduits and securitizers may use to transact business on the Platform.  Uplist is not involved in the actual transaction between buyers, agents, lenders, service providers, asset managers, brokers, vendors, sellers, investors, conduits and/or securitizers, and does not approve, endorse or select, is not the agent of, nor has any authority on behalf of, any of the aforementioned parties or any other third party, for any purpose whatsoever.  Uplist cannot guarantee that any transactions through the Platform will be completed.  Uplist further makes no representations or guaranties regarding any services offered through the Platform.
    3. Client acknowledges and agrees that Uplist does not and cannot control the flow of data to or from the Platform and other portions of the Internet.  Such flow depends in large part on the performance of Internet services provided or controlled by third parties.  At times, actions or inaction of such third parties can impair or disrupt Client’s connections to the Internet (or portions thereof).  Although Uplist will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Uplist cannot guarantee that such events will not occur.  Accordingly, Uplist disclaims any and all liability resulting from or related to such events.
    4. Disclaimer.  Except for the express representations and warranties made by Uplist in this Agreement and to the maximum extent permitted by applicable law, Uplist makes no representations or warranties.  Uplist expressly disclaims any and all other representations and warranties, express or implied, including any implied warranty of fitness for a particular purpose, merchantability, non-infringement, title or implied warranties arising from course of dealing or course of performance. Except as expressly set forth herein, the platform is made available to Client “as is.”  Uplist does not represent or warrant that the functions contained in the Platform and/or Uplist services will be uninterrupted or error-free, that defects will be corrected, that the Platform is secure from hacking or other unauthorized intrusion, that Client Data will remain private or secure, or that the Platform and Uplist services or the server that makes the Platform and Uplist services available are free of viruses or other harmful components.  Without limitation of the foregoing, Uplist will have no liability for:  (a) any errors, mistakes, or inaccuracies of any data; (b) the application of any Client business rule, process, instruction or specification; (c) any unauthorized access to or use of the Platform; (d) any act or omission of Client, Client User or any user of the Platform; (e) any interruption of transmission to or from the Platform; (f) indemnification or defense of Client or Client Users against claims related to infringement of intellectual property; (g) any bugs, viruses, trojan horses, or the like which may be transmitted on or through the Platform by any user and/or third party; or (h) any loss or damage of any kind incurred as a result of the use of Client Data or any data or information posted, transmitted, or otherwise made available on or through the Platform.  To the extent that Uplist cannot disclaim any such warranty as a matter of applicable law, the scope and duration of such warranty will be the minimum required under such law.
  2. INDEMNIFICATION.  Each party shall indemnify, defend, protect, hold harmless, and release the other, its officers, agents, and employees, from and against any and all claims, loss, proceedings, damages, causes of action, liability, costs, or expense (including attorneys’ fees and witness costs) arising from or in connection with, or caused by any act, omission, or negligence of such indemnifying party or its agents, employees, contractors, subcontractors, or invitees.  This indemnity provision survives the Agreement.
  3.         LIMITATION OF LIABILITY.
    1. Dollar Cap.  NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE LESSER OF (i) THE AMOUNTS PAID TO UPLIST BY CLIENT IN THE SIX (6) MONTHS PRIOR TO THE DATE THE LIABILITY FIRST AROSE; OR (ii) $100,000.00.
    2. Exclusion of Consequential Damages.  IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
    3. Exceptions from Exclusions and Limitations.  Nothing in this Agreement shall exclude or limit either party’s liability for: (a) breaches of Section 7 (Confidential Information); (b) breaches of a party’s indemnification obligations under Section 9 (Indemnification) or any amounts paid or payable to third parties in connection with such obligations; or (c) such party’s gross negligence, willful misconduct or abandonment of this Agreement.
  4. TERM & TERMINATION.
    1. Term.  This Agreement shall begin on the Effective Date and continue for a period of twelve (12) months thereafter unless terminated earlier in accordance with this Section 11 (the “Initial Term”). This Agreement shall automatically renew for successive twelve (12) month periods (each, a “Renewal Term”) unless either party provides the other party written notice of its intention not to renew this Agreement at least sixty (60) days prior to the end of the then-current Term.  As used in this Agreement, “Term” means the Initial Term and any Renewal Terms.
    2. Termination for Cause.  Either party may terminate this Agreement for the other’s material breach by thirty (30) days written notice, unless the other party first cures such breach.
    3. Termination for Bankruptcy.  Either party may terminate this Agreement if a receiver, trustee in bankruptcy, or other custodian of the property or assets of a party hereto is appointed, or if either party hereto commits an act of bankruptcy or is adjudicated bankrupt or insolvent and such proceeding is not dismissed within ninety (90) days.
    4. Effects of Termination.  Upon termination of this Agreement, Client shall cease all use of the Platform and delete, destroy, or return all copies of documentation and Confidential Information in its possession.  The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Client to pay fees incurred before termination; (b) Sections 6, 7, 8, 9, and 10; and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.

12.         MISCELLANEOUS.

  1. Independent Contractors.  The parties are independent contractors and will so represent themselves in all regards.  Neither party is the agent of the other, and neither may make commitments on the other’s behalf.  Each party agrees that none of its employees or contractors will be an employee or contractor of the other party.
  2. Force Majeure.  No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
  3. Assignment & Successors.   This Agreement shall be binding on the parties and their respective successors and assigns. This Agreement and the rights and obligations hereunder may not be assigned by either party without the prior written consent of the other party, except that such consent shall not be required in the event of (a) a recapitalization, reorganization, reincorporation or similar corporate event by either party, or (b) a merger or acquisition of either party pursuant to which all of the stock or all or substantially all of the assets of such party is acquired by another party, which party agrees to assume the rights and obligations of the acquired party under this Agreement.  Any assignment in violation of the foregoing will be null and void.
  4. Severability.  To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect.  In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
  5. No Waiver.  Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver.  No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
  6. Choice of Law & Jurisdiction.  The laws of the state of Washington shall govern the validity of this Agreement, the construction of its terms and the interpretation of the rights and duties of the parties hereto.  If any court action is necessary to enforce the terms and conditions of this Agreement, the Parties hereby agree that the Superior Court of Washington, King County, shall be the sole jurisdiction and venue for the bringing of such action.
  7. Notice.  All notices required or permitted hereunder will be given in writing addressed to Client at the Client’s physical address on file at the time of the notice, with a copy to the e-mail of record at the time of the notice.  IT IS THE RESPONSIBILITY OF CLIENT TO MAINTAIN ITS ADDRESS, ELECTRONIC MAIL AND TELEPHONE CONTACT INFORMATION ON THE PLATFORM FOR THE PURPOSES OF NOTIFICATION, AND CLIENT ACKNOWLEDGES THIS RESPONSIBILITY.  IN THE EVENT NOTIFICATIONS ARE SENT TO CLIENT AT AN ERRONEOUS ADDRESS DUE TO LACK OF UPDATED INFORMATION, CLIENT WILL REMAIN BOUND BY ANY TERMS, CONDITIONS, ADJUSTMENTS, REVISIONS OR ANY ITEMS SET FORTH IN THE NOTIFICATION.  Notifications from Client to Uplist shall be sent to the following address either by (i) personal delivery, (ii) transmitted by prepaid certified or registered US mail, or (iii) transmitted by national recognized private express courier, and will be deemed to have been given on the date of receipt if delivered personally, or 3 days after deposit in mail or express courier, as follows:

Uplist, LLC

800 Bellevue Way NE, Suite 500

Bellevue, WA 98004

With a copy to:  President

 

  1. Conflicts.  In the event of any conflict between this Agreement and any Uplist policy posted online, including without limitation Uplist’s terms of use (“TOU”), the terms of this Agreement will govern.  In the event of any conflict between this Agreement and any SOW, the terms of this Agreement will govern.

 

  1. Uplist Policies.  Uplist may revise the TOU and any other policy at any time by posting a new version of same at its Website, and such new version will become effective on the date it is posted.

 

  1. Headings; Counterparts.  Headings are for convenience only and are not deemed to be part of this Agreement.  This Agreement may be entered into in separate counterparts, each of which when so executed will be deemed an original and taken together will constitute one fully executed Agreement.  The parties agree to accept a digital image of this Agreement, as executed, as a true and correct original and admissible as best evidence to the extent permitted by a court with proper jurisdiction.

 

  1. Mediation.   If a dispute arises out of this Agreement or the TOU or a breach thereof that cannot be resolved through negotiation, the parties agree to submit to and to try in good faith to settle the dispute by mediation.  The parties agree that the location of any mediation shall occur in King County, WA.

 

  1. Entire Agreement.  This Agreement and any exhibits attached hereto constitute the entire understanding and agreement of the parties, and any and all prior agreements, understandings, and representations are hereby terminated and canceled in their entirety and are of no further force and effect.

BY ELECTRONICALLY ACKNOWLEDGING THIS AGREEMENT (BY CLICKING THE “ACCEPT” BUTTON), OR BY DOWNLOADING, INSTALLING OR OTHERWISE ACCESSING THE PLATFORM, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AS SET FORTH ABOVE.

Uplist is a technology provider. Uplist is not a lender or mortgage broker, does not originate loans, and does not make credit decisions. Any payment or rate figures shown through Uplist products are estimates provided by the originating lender, are subject to change, and are not a commitment to lend or a guarantee of approval or of rate availability. Pricing shown on this page is subject to change. Equal Housing Opportunity.