“Upbound” or “Company”
This Master Services Agreement is by and between Upbound, Inc. (“Upbound” or “Company”) and the entity described below (“Customer”). Company and Customer may be
referred to individually as “party” and collectively as “parties.” This Master Services Agreement, collectively with: (a) all Order Forms agreed to by the parties in writing; (b) any
other documentation signed by both parties at the time of or subsequent to this Master Services Agreement, including any Software-As-A-Service Module and any
Customer Hosted Service Module, and (c) any other materials specifically incorporated by reference herein, is referred to herein as the “Agreement.
” This Agreement becomes binding and effective on Customer upon the earliest of: (1) when Customer accesses or uses the Services, or (2) when Customer enters into an
Order Form (as defined below) with Upbound (“Effective Date”).
1. SERVICES AND SUPPORT
1.1 This Agreement sets forth the terms pursuant to which Customer may access and use the Services in connection with one or more Order Forms. “Services” means (a) any
Company proprietary software and other software programs branded by Company, its affiliates and/or third parties including all modifications, additions or further enhancements
thereto, components of which may be provided pursuant to a Company-hosted model, Customer-hosted model, or both; (b) the standard specifications applicable to each type
of software, which are made available to Customer by Company, as covered in each applicable Order Form; and/or (c) the hosting services.
1.2 As part of the registration process, Customer will identify an administrative username and password for Customer’s Company account. Company reserves the right to refuse
registration of or cancel passwords it deems inappropriate.
1.3 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit A.
Company shall provide training for the Services only as specified in the applicable Order Form.
1.4 Each of Customer’s affiliates may enter into Order Forms with Company and shall be responsible for all of its obligations related thereto and shall be considered “Customer”
with respect to that Order Form. Each affiliate will pay for all Services rendered pursuant to an Order Form entered into by that affiliate. The rights and interests which are granted
hereunder include the right of Customer and an affiliate to purchase and use the Services provided that, in each case, each affiliate complies with the terms of this Agreement.
Customer shall be fully liable for any and all actions or inactions of any current or future affiliate, and its employees, agents and contractors.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company and its affiliates, and their officers, employees, agents, and successors and assigns from and against any damages, losses, liabilities, settlements and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any claim, action, inquiries, demand or proceeding that arises from or relates to an alleged violation of the foregoing or otherwise from either Customer’s use of Services or Customer Data (defined below). Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
2.5 Any use of the Service in breach of this Agreement, associated documentation (“Documentation”) or Order Forms by Customer or authorized users that in Upbound’s judgment threatens the security, integrity or availability of the Service may result in immediate suspension of Customer’s access to the Service; however, Upbound will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to such suspension.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
such violation or threat prior to such suspension.
3.2 Customer shall own all right, title and interest in and to the Customer Data. Customer, not Company, has sole responsibility for ensuring the accuracy, quality, integrity, legality, security, reliability, appropriateness, and intellectual property rights to use all Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services or support, and (c) all intellectual property rights related to any of the foregoing. The Agreement does not convey to Customer any rights of ownership in or related to the Services, or any intellectual property rights owned by Company.
Any error reported by the customer in production where the majority of users for a particular part of the software are affected, the error has high visibility, there is no workaround, and it is affecting revenue.
Any error reported by the customer in production where the majority of users for a particular part of the software are affected, the error has high visibility, a workaround may be available; however, performance may be degraded or functions limited and it is affecting revenue.
Any error reported by the customer where the majority of users for a particular part of the software are affected, the error has low to medium visibility, a workaround is available; however, performance may be degraded or functions limited and it is NOT affecting revenue.
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