GogyUp Inc.

Terms of Service

The following Terms of Service (the “Terms”) govern Customer’s and End-users’ use of the Software (as defined below). The Terms, together with other written agreements between GogyUp and the Customer, shall be referred to as the “Agreement.”

1. Access to Software.

1.1. License Grant. Subject to the terms and conditions of the Agreement, GogyUp Inc. (“GogyUp”) grants to Customer a non-exclusive, non-transferable, limited-term license to access and use the software applications developed, owned and hosted by GogyUp, as identified within an agreement (the “Software”) solely for Customer’s internal business purposes. GogyUp and its licensors reserve all rights in and to the Software not expressly granted to Customer. Customer will provide, at Customer’s location, hardware, software, and communications equipment that will allow Customer to access and use the Software. Customer will be responsible for providing all additional equipment and internet connectivity at its own expense.

1.2. Updates. From time to time, GogyUp may offer updates to the Software, which will be governed by these Terms. GogyUp is not responsible for performance of updates in connection with any unauthorized plugins installed by Customer. Except as provided on an applicable Order Agreement, GogyUp is not obligated to provide any updates or other modifications to Customer. Customer may purchase upgrades, which might include new features to the Software for an additional fee not to exceed the then-current price of such upgrades offered by GogyUp.

1.3. Support Services. GogyUp will provide routine support and troubleshooting services (“Support Services”) to Customer. Customer may request Support Services by submitting a support request by sending an email to support@gogyup.com.

2. Restrictions on Use. Customer may not: (a) copy or otherwise reproduce or permit the copying or other reproduction of all or any part of the Software except as otherwise permitted herein; (b) reverse engineer, decompile, disassemble or create derived works based on the Software; (c) modify, adapt, translate into other programming forms or languages or extend the Software to operate in other environments or on other platforms, except in accordance with these Terms; or (d) allow access to the Software by other software products for any purpose without prior approval of GogyUp.

3. Fees and Payment. Customer will pay GogyUp for the Software in accordance with the pricing plan selected by Customer when registering for use of the Software or as otherwise forth in an agreement. Rates described in the agreement are exclusive of taxes, levies, duties, governmental charges or expenses. If license fees for the Software are to be recurring, Customer will provide GogyUp with a valid and updated credit card or as otherwise approved by GogyUp. If Customer provides credit card information to GogyUp, Customer authorizes GogyUp to charge such credit card for all license fees as provided on the Order Agreement. Such charges shall be made in advance in accordance with the billing frequency set forth in the Order Agreement. Fees remaining unpaid for more than thirty (30) days from receipt will accrue interest at a rate of the lesser of one and one-half (1.5%) percent per month or the highest rate allowed by law, whichever is less. Customer will be liable for all costs and expenses related to collection of past due amounts, including legal and other professional fees and expenses of litigation. GogyUp’s rights under this section will be in addition to all other rights and remedies available to GogyUp upon Customer’s default. If Customer’s usage exceeds the amount applicable to the package purchased by Customer for a period of twelve (12) months, GogyUp will automatically upgrade Customer’s purchased package at the end of the then-current Term.

4. Proprietary Rights.

4.1. Customer Content. Customer retains ownership of its data and content that is processed or hosted by the Software, including graphics and text provided by Customer for inclusion. Customer hereby grants to GogyUp for the Term a non-exclusive, worldwide license to use, reproduce, distribute, display, and modify any user-perceptible text and multimedia information, including sound, data, text, designs, audio, video, graphics, photographs, information, Customer advertisements, and the like provided by Customer to GogyUp through Customer’s use of the Software (“Customer Content”).

4.2. Software Applications. All right, title and interest (including all intellectual property rights embodied therein) in and to the Software will remain the sole and exclusive property of GogyUp or its licensors. These Terms grant Customer no title or right of ownership in or to the Software, or any component thereof including source code, or to any associated materials, documentation, intellectual property, or in or to any derivates of the Software, enhancements, modifications or improvements thereto. Customer will not, at any time, take or cause any action, which would be inconsistent with or tend to impair the rights of GogyUp or its affiliates in the Software. Customer may not remove or alter any proprietary or copyright notices, trademarks or logos of GogyUp.

5. Term and Termination. The Agreement will commence upon the Effective Date as stated on the Order Agreement and remain effective for the period set forth in the order agreement unless terminated as permitted in this Section (the “Initial Term”). Unless otherwise agreed upon in the Order Agreement Form, the Initial Term will automatically renew for successive one-year periods (together, the “Term”). Either party may terminate the Agreement with or without cause upon thirty (30) days’ written notice to the other party. Termination of the Agreement will relieve GogyUp of all obligations to provide Customer access to the Software and any licenses granted under the Agreement will immediately cease.

6. Indemnification.

6.1. By GogyUp. GogyUp will indemnify and defend Customer and its affiliates, directors, officers, employees and agents with respect to any claims, liabilities, damages and expenses, including reasonable attorneys’ fees, arising out of any third-party claim that the Software as provided by GogyUp infringes on any copyright, patent, trademark, trade secret or other intellectual property rights of any third party. Notwithstanding the foregoing, GogyUp will have no obligation pursuant to the foregoing indemnification provision to the extent that any claim is based on or related to: (a) any use of the Software in violation of the Agreement, (b) any use of the Software in conjunction with any third-party service, data, hardware or software not provided by GogyUp, or (c) any material or data provided by Customer. If Customer's use of the Software becomes, or is likely to become, the subject of an infringement claim, GogyUp may, at its option and expense (i) procure the right for Customer to continue using the Software, (ii) replace or modify the infringing components of the Software with non-infringing components of substantially equivalent functionality. The foregoing states the entire liability of GogyUp with respect to this Section, and Customer hereby expressly waives any other remedies for infringement claims.

6.2. By Customer. Customer will indemnify and defend GogyUp and its affiliates, directors, officers, employees and agents with respect to any claims, liabilities, damages and expenses, including reasonable attorneys’ fees, arising out of (a) any Customer Content, (b) Customer’s breach of any applicable laws and regulation, including but not limited to the TCPA, or (c) a breach of any of Customer's representations, warranties, obligations, covenants or agreements under the Agreement.

6.3. Indemnification Procedures. A party seeking indemnification hereunder (an “Indemnified Party”) will give the Party from whom indemnification is sought (the “Indemnifying Party”): (a) reasonably prompt notice of the relevant claim; (b) reasonable cooperation and assistance, at the Indemnifying Party’s request and expense, in the defense or settlement of such claim; and (c) sole control the defense and settlement of any such claim; provided, however, that the Indemnifying Party will not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest. The Indemnified Party will have the right to participate in the defense at its own expense.

7. WARRANTY DISCLAIMER. ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE, COMMON LAW OR IN ANY OTHER WAY, INCLUDING ANY IMPLIED WARRANTIES AS TO QUALITY, PERFORMANCE, TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE AND USAGE OF TRADE, ARE EXCLUDED FROM THE AGREEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS AND CUSTOMER’S USE OF THE SOFTWARE IS AT ITS OWN RISK. GogyUp DOES NOT WARRANT THAT THE SOFTWARE WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR COMPLETELY SECURE OR ERROR-FREE.

8. Limitation of Liability. GOGYUP WILL NOT BE LIABLE FOR VIOLATION OF ANY APPLICABLE LAW, RULE OR REGULATION OR TO ANY THIRD PARTY FOR CLAIMS ARISING OUT OF OR RELATED TO CUSTOMER CONTENT PROVIDED TO GOGYUP OR PLACED ON THE SOFTWARE BY CUSTOMER OR AT CUSTOMER’S DIRECTION. IN NO EVENT WILL (A) GOGYUP BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE SOFTWARE; AND (B) GOGYUP TOTAL CUMULATIVE LIABILITY TO CUSTOMER EXCEED THE AMOUNT PAID TO GOGYUP UNDER THE AGREEMENT DURING THE PREVIOUS TWELVE (12) MONTH PERIOD.

9. Miscellaneous.

9.1. Assignment. Customer may not assign the Agreement or any right created hereunder without the prior written consent of GogyUp. Any prohibited assignment is void. The Agreement shall inure to the benefit of the parties’ respective permitted successors and assigns

9.2. Amendments; Waiver; Severability. The Agreement may only be amended or modified in a writing duly executed by authorized representatives of both parties. Any waiver of any breach of any term or any condition of the Agreement will not be construed as a waiver of any subsequent breach of any term or condition of the Agreement. If any part, term or provision of the Agreement will be held to be illegal or unenforceable it will not affect the validity or enforceability of the remainder of the Agreement. The parties will replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision.

9.3. Publicity. GogyUp may disclose in its advertising and marketing materials that: (a) Customer has entered into the Agreement with GogyUp; and (b) Customer is a customer of GogyUp.

9.4. Disputes. The Agreement will be governed and construed in accordance with the laws of the State of Minnesota without giving effect to its conflict of law principles. The 1980 U.N. Convention on Contracts for the International Sale of Goods does not apply to the Agreement. All disputes arising from or relating to the Agreement will be within the exclusive jurisdiction of the state and/or federal courts located within Hennepin County, Minnesota. Any claim arising from or related to the Agreement must be brought in the state or federal courts located in Minneapolis, Minnesota.

9.5. Entire Agreement. The Agreement, including the Order Agreement and any other exhibits, comprises the entire agreement between the parties relating to the subject matter hereof. The Agreement supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of the Agreement. The Agreement may be executed in several counterparts, each of which will be deemed to be an original, and all of which, when taken together, will constitute one and the same instrument. Sections 4 (Proprietary Rights), 7 (Warranty Disclaimer), 8 (Limitation of Liability), and 9 (Miscellaneous) survive termination of the Agreement.

Effective Date: May 9, 2022