Terms of Service
These Terms of Service (these "Terms") are effective, as to each Client and engagement, as of the effective date of the Statement of Work or engagement that references or incorporates these Terms (the "Effective Date"), and are published by UPRISING SOLUTIONS LLC, with an address at 819 15TH ST, Wilmette, IL 60091 ("Uprising," "Uprising Solutions," or "Consultant"). These Terms, together with each Statement of Work or engagement that references or incorporates them (each, an "Agreement"), govern the services Uprising provides to a client ("Company" or "Client"). A Client accepts these Terms, and agrees to be bound by them with respect to an engagement, by executing a Statement of Work that references these Terms or by electronically accepting them (for example, by clicking to accept a scope of work or to obtain access to an Uprising tool or service). Each Statement of Work or engagement constitutes a separate and independent contract between Uprising and the Client that enters into it. In the event of any conflict between these Terms and a Statement of Work or Change Order, these Terms shall govern and control, except with respect to the scope of services, fees, and schedule expressly set forth in that Statement of Work or Change Order. The current version of these Terms is posted at https://uprising.ai/terms.
1. Consulting Services
The Company hereby engages Uprising Solutions to perform the services set forth in subsequent Statement(s) of Work that reference these Terms (each, a "Statement of Work") or Change Orders to those Statement(s) of Work (each, a "Change Order"), and Uprising Solutions hereby accepts such engagement following the mutual agreement and dual execution of each Statement of Work or Change Order. Uprising shall render such services in a professional and workmanlike manner, at such times, locations and facilities as are mutually agreed between Uprising and the Company from time to time. The Company shall, upon reasonable notice and during regular business hours, provide Uprising reasonable access to the Company's relevant personnel, facilities and Confidential Information (as defined below), as necessary for Uprising to perform such services. Uprising shall have the right to designate one or more persons reasonably acceptable to the Company to render the services described on the Statement of Work; provided that Uprising shall be responsible for any such person's compliance with the terms of this Agreement. If the Company and Uprising agree to modifications, additions or enhancements to services that are not already the subject of an executed Statement of Work, each such change will be described in a new Statement of Work or Change Order describing such modifications, additions and/or enhancements in reasonable detail and including the payment terms. Nothing in this Agreement shall in any way limit, restrict or prohibit Uprising from being employed or engaged by any third party during the term of this Agreement; provided that any such other employment or engagement does not materially and adversely interfere with the performance by Uprising of its services to the Company hereunder. Uprising warrants that the services will be performed in a professional and workmanlike manner. The Client's sole and exclusive remedy, and Uprising's entire liability, for breach of this warranty is re-performance of the deficient services, provided that the Client notifies Uprising in writing within thirty (30) days after the services in question are performed. EXCEPT FOR THE FOREGOING WARRANTY, THE SERVICES, DELIVERABLES, UPRISING MATERIALS, AND UPRISING SOFTWARE (EACH AS DEFINED BELOW) ARE PROVIDED "AS IS," AND UPRISING DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. UPRISING DOES NOT WARRANT OR GUARANTEE ANY PARTICULAR RESULT, OUTCOME, COST SAVING, OR OTHER BENEFIT FROM THE SERVICES.
2. Term
This Agreement shall be effective as of the Effective Date and will terminate after three (3) years unless extended by mutual agreement of the Company and Uprising. Either the Company or Uprising may terminate this Agreement at any time upon not less than 60 days' prior written notice to the other party. Upon termination or expiration of this Agreement, each Statement of Work or engagement that is active at that time shall continue in effect until it is completed or earlier terminated in accordance with its own terms, and these Terms shall continue to govern each such Statement of Work or engagement until it expires or terminates; provided that no new Statement of Work or engagement may be entered into after termination or expiration unless the parties otherwise agree in writing. Termination or expiration shall not relieve the Client of its obligation to pay for all services performed and all expenses incurred through the effective date of termination. In the event of any termination of this Agreement or any Statement of Work by the Company, Uprising shall be paid pro rata through the date of such termination, plus such additional days (at the daily rate set forth on the Statement of Work) as the Company and Uprising may mutually agree are necessary for a suitable turnover of work in progress, not to exceed 60 days.
3. Fee; Expenses
The Company shall pay Uprising such fee(s) as are identified in the Statement of Work. In addition, the Company shall reimburse Uprising for all reasonable and documented expenses incurred while performing Uprising's duties and responsibilities under this Agreement, including reasonable travel-related expenses. All fees are exclusive of taxes, and the Client is responsible for all sales, use, value-added, and similar taxes arising from the services, excluding taxes based on Uprising's income. In the event of a dispute regarding the fees invoiced, the Client must provide written notice detailing the disputed amount within ten (10) business days of receipt of the invoice, and both parties will work in good faith to resolve the dispute within a further ten (10) business days. Unless otherwise provided in the Statement of Work, payments to be made to Uprising hereunder shall be made within thirty (30) days of invoicing by electronic or wire transfer to such account(s) as Uprising designates in writing. Where a Statement of Work so provides, Uprising may require a retainer or deposit, payable upon execution of the Statement of Work, as a condition to commencing or continuing the services; amounts invoiced will be applied against the retainer until it is exhausted, and any unused portion will be refunded or credited upon completion or termination of the engagement. A late payment fee equal to the lesser of one and one-half percent (1.5%) per month and the maximum rate permitted by applicable law will accrue on any undisputed amount that remains unpaid after the thirty (30) day period, calculated from the original due date until paid in full. In addition, if any undisputed amount remains unpaid more than fifteen (15) days after its due date, Uprising may, upon written notice and without prejudice to its other rights or remedies, suspend performance of the services and/or terminate the affected Statement of Work or engagement for cause.
4. Independent Contractor
It is expressly understood and agreed that Uprising is and shall at all times during the term of this Agreement be deemed to be, an independent contractor of the Company, and nothing in this Agreement shall in any way be deemed or construed to constitute Uprising as a partner or employee of the Company.
5. Non-Solicitation of Employees and Subcontractors
During the term of this Agreement and for a period of twelve (12) months following its termination or expiration, the Client agrees not to directly or indirectly solicit, hire, or engage any employees, consultants, or subcontractors of Uprising Solutions, with whom the Client has had contact in connection with the performance of services under this Agreement, without the prior written consent of Uprising Solutions. This Section does not restrict the Client from hiring any individual who responds, on their own initiative, to a general solicitation of employment not specifically directed at Uprising's personnel (such as a public job posting or recruiting-website listing). This restriction applies to any actions that would materially impact Uprising Solutions' ability to deliver services to the Client or to any other clients. The Client acknowledges that such actions could result in substantial harm to Uprising, and therefore agrees to reimburse Uprising for its reasonable, documented costs of recruiting and training a replacement for any affected personnel, and further agrees that Uprising shall be entitled to seek injunctive relief, in addition to any other remedy available at law or in equity, to enforce this Section.
6. Confidential Information
Uprising acknowledges and agrees that its engagement with the Company may involve the understanding of and access to trade secrets and/or non-public proprietary information pertaining to the business and affairs of the Company (collectively, "Confidential Information"). Uprising agrees that it will hold in trust, keep confidential, and not disclose to any person or entity or make any use of any Confidential Information except for the benefit of the Company and only as necessary in connection with its engagement with the Company. The foregoing obligations shall not apply to, and the term "Confidential Information" shall not include, any information which (a) is or becomes a part of the public domain, (b) was in Uprising's possession prior to its disclosure to Uprising by or on behalf of the Company, or (c) was or is received by Uprising from a third party who was not, to Uprising's knowledge at the time of such receipt, prohibited from disclosing such information by a confidentiality or other obligation to the Company in respect of such information. These confidentiality obligations shall survive the termination or expiration of this Agreement and shall continue for a period of three (3) years thereafter; provided that, with respect to any Confidential Information that constitutes a trade secret, such obligations shall continue for as long as the information remains a trade secret under applicable law. Notwithstanding the foregoing, either party may disclose Confidential Information to the extent required by applicable law, regulation, or valid legal process, provided that the party so compelled gives prompt written notice (where legally permitted) and reasonable cooperation to allow the other party to seek confidential treatment. Uprising's rates, pricing, methodologies, tools, work product, and the terms of any Statement of Work or engagement constitute Uprising's Confidential Information, and the Company agrees to hold such information in confidence and use it only as necessary in connection with the services, on the same terms set forth in this Section applied reciprocally.
7. Indemnification
The Company agrees to indemnify, defend and hold Uprising harmless from and against any and all liability, loss, damage, claim or expense, including, without limitation, reasonable attorneys' fees and expenses, arising out of, resulting from or relating to any performance by Uprising of any duties or responsibilities for or at the direction of the Company, except in each case to the extent that any such liability, loss, damage, claim or expense resulted from the gross negligence or willful misconduct of Uprising or from the breach by Uprising of this Agreement. Uprising agrees to indemnify, defend and hold the Company harmless from and against any third-party liability, loss, damage, claim or expense, including reasonable attorneys' fees and expenses, to the extent arising out of or resulting from the gross negligence or willful misconduct of Uprising or Uprising's material breach of this Agreement.
8. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR LOST PROFITS OR PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES RELATED TO THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR (A) A CLIENT'S OBLIGATION TO PAY FEES AND EXPENSES DUE FOR AN ENGAGEMENT, (B) A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, (C) A PARTY'S WILLFUL BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, AND (D) A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY'S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY STATEMENT OF WORK OR ENGAGEMENT EXCEED ONE AND ONE-HALF TIMES (1.5X) THE TOTAL FEES PAID OR PAYABLE TO UPRISING FOR THE STATEMENT OF WORK OR ENGAGEMENT GIVING RISE TO THE CLAIM.
9. Intellectual Property
As between the parties, Uprising retains all right, title, and interest in and to all methodologies, tools, software, templates, know-how, and other materials and intellectual property that Uprising owned or developed prior to, or independently of, an engagement under this Agreement (collectively, "Uprising Materials"), including any improvements thereto. Upon Uprising's receipt of payment in full for the services under the applicable Statement of Work or engagement, Uprising assigns to the Company the deliverables specifically created for the Company under that Statement of Work or engagement, excluding the Uprising Materials. Uprising retains the right to use the general knowledge, skills, experience, ideas, concepts, and techniques acquired or used in the course of performing the services. To the extent any Uprising Materials are incorporated into a deliverable, Uprising grants the Company a non-exclusive, perpetual, royalty-free license to use such Uprising Materials solely as part of that deliverable.
10. Software; License
From time to time, Uprising may develop, deploy, or otherwise make available to a Client software, applications, or code (including hosted software and any source code provided to the Client) in connection with the services (collectively, "Uprising Software"). Notwithstanding any other provision of this Agreement, Uprising retains all right, title, and interest in and to the Uprising Software and all intellectual property rights therein, and the Uprising Software constitutes Uprising Materials, regardless of whether Uprising delivers the source code; the delivery of source code does not transfer ownership. Unless the applicable Statement of Work or other written agreement signed by the parties expressly provides otherwise, Uprising grants to the applicable Client a non-exclusive, royalty-free, worldwide license to use the Uprising Software for its internal business purposes. Any right to copy, modify, enhance, extend, or create derivative works of the Uprising Software, or any perpetual or irrevocable license, must be expressly granted in the applicable Statement of Work. During the term of the applicable engagement, Uprising will maintain, update, and support the Uprising Software as set forth in the applicable Statement of Work. Upon the termination or expiration of the engagement, Uprising shall have no obligation to host, maintain, support, update, modify, or otherwise be responsible for the Uprising Software, and the license granted under this Section shall terminate unless the applicable Statement of Work expressly provides for a perpetual or irrevocable license, in which case that license shall survive so that the Client may continue to use (and, to the extent the applicable Statement of Work expressly so provides, build upon) the Uprising Software on an as-is basis.
11. Insurance
During the term of this Agreement and each active engagement, Uprising shall, at its own expense, maintain commercially reasonable insurance coverage of the types and in the amounts customary for a business of its size and industry, including commercial general liability insurance and workers' compensation insurance as required by applicable law. Upon the Company's reasonable written request, Uprising shall provide a certificate of insurance evidencing the foregoing coverage.
12. Force Majeure
No party shall be liable or responsible for any delay in performing its obligations under this Agreement to the extent that the delay is caused by any act, event or circumstance beyond the reasonable control of such party, including without limitation any act of war, terrorism, civil riot or upheaval, quarantine, embargo or similar governmental action, strike or labor dispute, hurricane, flood or other natural disaster (each, a "Force Majeure Event"), as long as that party gives notice describing the Force Majeure Event promptly to the other party and uses commercially reasonable efforts to resume performance as soon as is reasonably possible. If the Force Majeure Event continues for a period exceeding ninety (90) days, either party may terminate this Agreement upon written notice to the other party.
13. Successors and Assigns
This Agreement shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement may not be assigned in whole or in part by either party without the prior written consent of the other party; provided that Uprising may assign this Agreement, in whole or in part, without such consent to an affiliate or in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its assets or business to which this Agreement relates.
14. Severability
If any provision of this Agreement would be held to be invalid, prohibited or unenforceable in any jurisdiction for any reason, such provision, as to such jurisdiction only, shall be ineffective to the extent of such invalidity, prohibition, unenforceability, without invalidating the remaining provisions of this Agreement.
15. Entire Agreement; Waivers
This Agreement constitutes the entire agreement and understanding of the parties hereto and supersedes all prior agreements, whether oral or written, between the parties relating to the subject matter hereof and may not be changed or modified except in writing signed by the parties hereto. The failure of either party to require the performance of any term of this Agreement or the waiver by either party of any breach under this Agreement shall not prevent a subsequent enforcement of such term, nor be deemed a waiver of any subsequent breach.
16. Construction, Interpretation
In the event any ambiguity or question of intent or interpretation arises, this Agreement shall be construed as drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring either party by virtue of the authorship of any of the provisions of this Agreement. The headings of the Sections and sub-sections hereof are inserted for convenience of reference only and shall not affect any interpretation of this Agreement.
17. Modifications to These Terms
Uprising reserves the right to modify, update, or replace these Terms at any time in its sole discretion by posting the revised Terms at https://uprising.ai/terms with a new effective date. The version of these Terms in effect on the date a Statement of Work is executed or an engagement is otherwise accepted (whether by signature or electronic click-through acceptance) shall govern that Statement of Work or engagement for its duration; revised Terms shall apply to Statements of Work executed or engagements accepted on or after the effective date of the revision. The Client's execution of a new Statement of Work, or continued use of Uprising's services under a new engagement, after revised Terms are posted constitutes acceptance of the revised Terms with respect to that engagement.
18. Governing Law; Arbitration
This Agreement shall be governed in all respects by the internal laws of the State of Delaware, without regard to conflicts of laws principles. Any dispute concerning any interpretation, enforcement, or breach of this Agreement, or otherwise arising between the parties, shall be submitted to binding arbitration in Wilmington, Delaware, in accordance with the then prevailing commercial arbitration rules of the American Arbitration Association. The arbitration will be conducted by a single arbitrator. The award of the arbitrator shall be final and binding, and judgment on the award may be confirmed and entered in any state or federal court in the State of Delaware. In the event of any court proceeding to challenge or enforce an arbitrator's award, the parties hereby consent to the exclusive jurisdiction of the state and federal courts in Delaware and agree to venue in that jurisdiction.
19. Counterparts; Signatures
This Agreement may be executed by facsimile or electronic signature and in any number of counterparts, each of which shall be deemed an original, but all of which, when taken together, shall constitute one and the same instrument.