Terms of Service

IMPORTANT! READ THIS UPSREI™ SOFTWARE AS A SERVICE AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE CONTINUING REGISTRATION. BY CHECKING THE "I ACCEPT" BOX AND CLICKING THE “SIGN UP” BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT THROUGH AN ORDERING DOCUMENT (INCLUDING THE UPSREI™ WEBSITE ONLINE ORDERING PROCESS) THAT INCORPORATES OR INCLUDES THIS AGREEMENT (EACH A “SERVICE ORDER”), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND “CUSTOMER” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST NOT CHECK THE "I ACCEPT" BOX OR CLICK THE “SIGN UP” BUTTON AND MAY NOT USE THE SERVICES.

This Agreement is entered by and between Customer and Unique Processing Solutions, LLC., and RUDRAM ENGINEERING, INC. (“us,” “we” or “our”) and becomes effective when you click the “I Accept” button or otherwise accept this Agreement through a Service Order.

RECITALS

We offer software that acts as Metal Plating Process Management Tool (the “Software”) delivered through our proprietary web-based applications and Customer is agreeing to purchase the Services (defined below). Therefore, in consideration of the mutual covenants, terms, and conditions set forth below, the adequacy of which consideration is hereby accepted and acknowledged, the parties agree as follows:

TERMS AND CONDITIONS

1. Definitions.

(a) “Account” refers to the Service plans and features selected by Customer through our customer portal at the time of enrollment and accepted by us, as such plans and features may change by mutual consent of the parties, as recorded by us through such portal.
(b) “AUP” refers to our acceptable use policy, posted at www.uniqueprosolutions.com, as such policy may change from time to time.
(c) “Authorized Representative” refers to Unique Processing Solutions, LLC. and affiliates.
(d) “Customer” means the purchaser of the Services under this Agreement.
(e) “Customer Marks” means Customer’s trademarks and service marks.
(f) “Data Policy” refers to our standard data deletion policy, posted at www. Uniqueprosolutions.com, as such policy may change from time to time.
(g) “Effective Date” refers to the date of commencement of the Service as listed in Customer’s Account.
(h) “Materials” refers to written, visual and graphical content provided by or through the Service, including, without limitation, text, photographs, illustrations, and designs, whether provided by us, a customer of the Service, or any other third party but excluding Customer Marks.
(i) “Service” or “Services” refers to the access and use of our commercially available suite of services, programs, components, functions, screen designs, and report formats known as UPSREI™ and made available by us as a service over the Internet, as we may change features from time to time, using our Software, software updates, and related web based services.
(j) “Customer Data” refers to data in electronic form input or collected through the Services by or from Customer or its employees or agents.
(k) “Privacy Policy” refers to our privacy policy, as such policy may change from time to time.
(l) “Service” refers to our Software service. The Service includes such features as are set forth on our website (www.uniqueprosolutions.com), as we may change such features from time to time, in our sole discretion.
(m)“SLA” refers to our service level agreement, posted at www.uniqueprosolutions.com, as such service level agreement may change from time to time.

2. Service, Nature of Rights, Fees & Payment.

(a) Service. We will provide Customer with a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Services in accordance with this Agreement. The Services will be deployed through a third-party hosting service.
(b) Fees. The initial fees for the Services shall be as set forth in Customer’s Service Order(s). In our sole discretion and at any time, we may modify the fees for the Services and the applicable fees will be in accordance with the fees listed on our website from time to time. Any fee change will become effective at the end of Customer’s then-current Billing Cycle (defined below). We will provide Customer with reasonable prior notice of any change in fees to give Customer an opportunity to terminate the Services before such change becomes effective. Customer’s continued use of the Services after the fee change comes into effect constitutes Customer’s agreement to pay the modified fee amount.
(c) Payment. Billing cycles (“Billing Cycles”) are set on an annual basis. Payment will be made by credit card/check and will be drawn annually based on the applicable Billing Cycle. A valid payment method, including credit card, is required to process a payment. Credit card use may involve processing fee which customer is responsible for. Customer shall provide us with accurate and complete billing information including full name, address, state, zip code, telephone number, and a valid payment method information. By submitting such payment information, Customer automatically authorizes us to charge all fees incurred through Customer’s account to any such payment instruments. Should automatic billing fail to occur for any reason, we will issue an electronic invoice indicating that Customer must process manually, within a certain deadline date, with the full payment corresponding to the billing period as indicated on the invoice.

3. Information Control.

We do not control the entry or manipulation of data by Customer and/or Customer’s employees, agents or third party contractors.
Accordingly, we have no control over or liability for the integrity, truth or accuracy of information entered, processed or managed by Customer and/or Customer’s, employees, agents or third party contractors in connection with the Services. Some of the features of the services are accessible through mobile devices and are intended for use by fleet drivers.

4. Materials, Software, & IP.

(a) Materials. Customer recognizes and agrees that: (i) the Materials are our property and/or that of our licensors’ and such property is protected by copyright, trademark, and other intellectual property laws; and (ii) Customer does not acquire any right, title, or interest in or to the Materials except the limited and temporary right to use them as necessary for Customer’s use of the Service.
(b) IP in General. We retain all right, title, and interest in and to the Software, including without limitation all modifications, improvements, upgrades and customization of the Service and all logos and trademarks reproduced through the Service or any of its components, excluding Customer Marks and any third party Materials.
(c) Customer’s IP. Customer retains all right, title and interest in and to Customer Marks and this Agreement does not grant us any intellectual property rights in or to Customer Marks.

5. Online Policies.

(a) AUP. Customer will to comply with the AUP. In the event of Customer’s material breach of the AUP, including without limitation any copyright infringement, we may suspend or terminate Customer’s access to the Service, in addition to such other remedies as we may have at law or pursuant to this Agreement. Neither this Agreement nor the AUP requires that we take any action against Customer or any other customer for violating the AUP, but we are free to take any such action we see fit.
(b) Privacy Policy. The Privacy Policy applies only to the Service and does not apply to any third party site or service linked to the Service or recommended or referred to through the Service or by our employees.

6. Each Party’s Warranties.

(a) Customer’s Identity. Customer warrants: (i) that he, she or it has accurately identified himself, herself or itself through its Account and will maintain the accuracy of such identification; and (ii) that it is a corporation or other business entity authorized to do business pursuant to applicable law or an individual 18 years or older.
(b) Right to Do Business. Each party warrants that 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.
(c) Compliance with Laws. Each party represents and warrants that it will comply with all federal, state and local laws applicable to its performance under this Agreement and applicable to the payment of wages to employees and selection of employees working on services under this Agreement (including but not limited to overtime, contribution taxes, benefits and penalties payable under Workers’ Compensation (including Workers’ Compensation Reform Act of 1989), unemployment compensation, disability benefit, old age benefit, or tax withholding laws), including without limitation obtaining all necessary permits and licenses at such party's expense.
(d) Disclaimers. Except for the express warranties specified in this section 6, THE SERVICES ARE PROVIDED “AS IS” AND AS AVAILABLE, AND WE MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, (I) WE HAVE NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; AND (II) WE DO NOT WARRANT THAT THE SERVICE WILL PERFORM WITHOUT ERROR OR IMMATERIAL INTERRUPTION. WE SPECIFICALLY DO NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT WE WILL CORRECT ALL SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT WE DO NOT CONTROL THE TRANSFER OF DATA, INCLUDING THE INTERNET OR THIRD PARTY HOSTING SERVICES, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF COMMUNICATIONS FACILITIES. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM ANY SUCH PROBLEMS.

7. Limitation of Liability.

EXCEPT FOR INDEMNIFICATION OBLIGATIONS OR CASES OF GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, IN NO EVENT: (a) WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE FEES PAID TO US UNDER THIS AGREEMENT; AND (b) WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES. THE LIABILITIES LIMITED BY THIS SECTION 7 APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (iii) EVEN IF A PARTY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iv) EVEN IF A PARTY’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 7, each party’s liability will be limited to the maximum extent permissible.

8. Data Management.

(a) Access, Use, & Legal Compulsion. Unless we receive Customer’s prior written consent, we: (i) will not access or use Customer Data other than as necessary to facilitate the Service; and (ii) will not give any third party not under obligation of confidentiality with access to Customer Data. Notwithstanding the foregoing, we may disclose Customer Data as required by applicable law or by proper legal or governmental authority. If possible, we will give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
(b) Customer’s Rights. Customer possesses and retains all right, title, and interest in and to Customer Data. Without limiting any other warranty or obligation specified in this Agreement, and in particular the remainder of this Section, during the term of this Agreement and thereafter in perpetuity, we will not gather, store, or use Customer Data in any manner and will not disclose, distribute, sell, share, rent or otherwise transfer Customer Data to any third party, except as we may be expressly and reasonably directed in advance in writing by Customer. We represent, covenant, and warrant that we will use Customer Data only in compliance with Customer’s written instructions and all applicable laws (including but not limited to policies and laws related to spamming, privacy, and consumer protection). We will maintain security procedures with respect to Customer’s access to and maintenance of Customer Data that are at least equal to industry standards for such services.
(c) Retention & Deletion. We will use commercially reasonable measures to retain Customer Data in our possession until erased pursuant to this Subsection 8(c). We are not required to maintain Customer Data for more than 180 days. We will also erase any or all copies of Customer Data (i) as soon as practicable after Customer’s written request; and (ii) not sooner than 30 business days after termination of this Agreement. Customer Data may retained for terms of service upon request.
(d) Leaks. We will promptly notify Customer of any actual or potential exposure or misappropriation of Customer Data (any “Leak”) that comes to our attention. We will cooperate with Customer and with law enforcement authorities in investigating any such Leak. We will likewise cooperate with Customer and with law enforcement agencies in any effort to notify injured or potentially injured parties, and such cooperation will be at our expense, except to the extent that the Leak was directly or indirectly caused by Customer.

9. Term & Termination.

(a) Term. This Agreement is for the initial period set forth in Customer’s Service Order (which is the same term as Customer’s Billing Cycle) and, if no such term is specified in Customer’s Service Order, for an initial period of one (1) year. This Agreement will automatically renew indefinitely in subsequent terms of the same length as Customer’s initial Service Order unless Customer notifies us or we notify Customer of the intent to cancel the Services. At the end of each Billing Cycle, Customer’s Subscription will automatically renew under the exact same conditions unless Customer cancels it or we cancel it. Customer may cancel the renewal either through Customer’s online account management page or by contacting our customer support team.
(b) Termination for Cause. Either party may terminate this Agreement for material breach by written notice, effective in 30 days, unless the other party first cures such breach. We may immediately suspend Customer’s password, account, and access to or use of the Services if Customer fails to pay us as required under this Agreement and do not cure within the first ten days of the 30-day cure period. Any suspension by us of the Services under this paragraph shall not excuse Customer from Customer’s obligation to make payment(s) under this Agreement.
(c) Effects of Termination. The following provisions will survive termination of this Agreement: (i) any of Customer’s obligations to pay for Services rendered before termination; (ii) Sections 4, 6(d), 7 and 10 of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfill its essential purpose.

10. Indemnity.

(a) By Us. “Customer’s Indemnitees” are Customer and Customer’s officers, directors, shareholders, parents, subsidiaries, agents, insurers, successors, and assigns. An “IP Claim” is any third party claim, suit, or proceeding against the Customer’s Indemnitees arising out of, related to, or alleging infringement of any patent, copyright, trademark or other intellectual property right by the software relating to the Services but excluding Customer Marks. We will indemnify, defend, and hold Customer’s Indemnitees harmless against: (i) any IP Claim; (ii) damages from the material breach of any of our representations under Section 6; and (iii) damages from any violation of our obligations under Section 8(b), provided Customer give us prompt notice of such claim. Our obligations set forth in the preceding sentence include, without limitation, retention and payment of attorneys and payment of court costs, as well as settlement at our expense, payment of judgments, or both. If we believe or it is determined that any of the Materials or Services may have violated a third party’s intellectual property rights, we may choose to modify the Material in order to be non-infringing (provided that we substantially preserve the functionality of the Service) or we may obtain a license to allow for continued use by Customer. If these alternatives are not available on commercially reasonable terms, we may end the Services and refund any unused, prepaid fees Customer may have paid to us. We will not indemnify Customer’s Indemnitees if Customer alter the Materials or use the Materials or Services outside the use identified in our user documentation or services policies or if Customer uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using a current version of the Material which was provided by us. We will not indemnify Customer to the extent that an infringement claim is based upon the combination of any of the Materials or Services with any products or services not provided by us. We will not indemnify Customer for infringement caused by Customer’s actions against any third party if the Services as delivered to Customer and used in accordance with the terms of this Agreement would not otherwise infringe any third party intellectual property rights. We will not indemnify Customer for any infringement claim that is based on: (1) a patent that Customer was made aware of prior to the effective date of this Agreement (pursuant to a claim, demand, or notice); or (2) Customer’s actions prior to the effective date of this Agreement.
(b) By Customer. “Our Indemnitees” are us and our officers, directors, shareholders, parents, subsidiaries, agents, insurers, successors, and assigns. Customer will indemnify, defend, and hold Our Indemnitees harmless against any third party claim, suit, or proceeding against any of Our Indemnitees arising out of, related to, or alleging infringement of any patent, copyright, trademark or other intellectual property right by the software relating to any of Customer Marks, and damages from the material breach by Customer or Customer’s employees or agents of this Agreement. Customer’s obligations set forth in the preceding sentence include, without limitation, retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense, payment of judgments, or both.
(c) Litigation. The indemnitor will control the defense of any claim indemnified pursuant to this Section 10, including appeals, negotiations, and any settlement or compromise thereof; provided any indemnitee will have the right to approve the terms of any settlement or compromise that restricts its rights granted under this Agreement or subjects it to any ongoing obligations. The indemnitor will not indemnify the otherwise indemnified party to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by the indemnitor, or (ii) any material from a third party or other external source that is accessible to Customer within or from the Services (e.g., a third party Web page accessed via a hyperlink).

11. Miscellaneous.

(a) Notices. Notices pursuant to this Agreement will be sent to the addresses below, or to such others as either party may provide in writing. Such notices will be deemed received at such addresses upon the earlier of (i) actual receipt or (ii) delivery in person, by fax with written confirmation of receipt, or by certified mail return receipt requested.
(b) Amendment. We may amend this Agreement (including the SLA and Data Policy) from time to time by posting an amended version at its website and sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives us written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next Term following the Proposed Amendment Date (unless Customer first terminates this Agreement pursuant to Section 9 above). Customer’s continued use of the Service following the effective date of an amendment will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement executed by Authorized Representatives of each party. Notwithstanding the foregoing, we may amend the AUP or Privacy Policy at any time by posting a new version at its website and sending Customer notice thereof, and such amended version will become effective 30 business days after such notice is sent.
(c) 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 bind the other in any way.
(d) 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 (i) by an Authorized Representative and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
(e) Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
(f) Assignment & Successors. Neither party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that either party may assign this Agreement to an Affiliate or to the surviving party in a merger of that party into another entity or to an acquirer of all, or substantially all, of the assets of such party. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
(g) Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of Florida, without reference to such State’s principles of conflicts of law. The parties consent to the personal and exclusive jurisdiction of the federal and state courts in and for Brevard County, Florida.
(h) 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.
(i) Certain Notices. Pursuant to 47 U.S.C. Section 230(d), we hereby notify Customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist in limiting access to material that is harmful to minors. Information regarding providers of such protections may be found on the Internet by searching “parental control protection” or similar terms.
(j) Conflicts among Attachments. In the event of any conflict between the terms of this main body of this Agreement and those of the SLA or Data Policy, the terms of this main body will govern. In the event of any conflict between this Agreement and any our policies posted online, including without limitation the AUP and Privacy Policy, the terms of this Agreement will govern.
(k) Taxes. Customer agrees to pay any sales, value-added or other similar taxes imposed by applicable law we must pay based on the Services provided to Customer, except for taxes based on our income. Listed fees for the Services are exclusive of taxes and expenses. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice.
(l) Promotional Use. Customer agrees we may identify Customer as a customer of the Services and (i) use Customer’s logo in sales presentations, marketing materials and press releases, and (ii) to develop a customer profile for use by us for promotional purposes.
(m)Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.