Last Updated: December 4, 2018
This Master Service Agreement (the "Agreement") governs all of your use of our internet-delivered collaboration
tools and related services (collectively, the "Service"), whether you access it from our Web site at
http://www.rfp360.com (the "Site"), from our Application at https://my.rfp360.com, from a mobile applications or
mobile Web sites, or from any other internet points of presence we make available to you. THIS AGREEMENT GOVERNS
ALL USE YOU MAKE OF THE SERVICE AND OUR SITE, INCLUDING YOUR FREE TRIAL (IF APPLICABLE) AND YOUR ONGOING FREE OR
PAID USE OF THE SERVICE (IF ANY).
1. Acceptance of Agreement.
This Agreement is a legal contract between UPG Solutions, LLC, d.b.a. RFP365. ("we," "us," or "UPG") and you. BY
CLICKING THE "REGISTER" BUTTON DISPLAYED WHEN YOU CREATE A PASSWORD AND SIGN UP FOR THE SERVICE, YOU AGREE TO THE TERMS
AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU
REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY OR ENTITY TO THE TERMS OF THIS AGREEMENT, IN
WHICH CASE THE TERMS "YOU" AND "YOUR" REFER TO YOUR COMPANY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU OR YOUR
COMPANY DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, THEN NEITHER YOU NOR YOUR COMPANY HAS THE RIGHT TO USE THE
2. No Competitive Use.
You may not register for or use our Service to monitor or test the availability or performance of the Service, or
for other benchmarking or competitive purposes.
3. Modifications to Agreement.
We reserve the right to modify the terms and conditions of this Agreement at any time by posting an updated version
of this Agreement on our Site. Any updated version will become effective 15 days after posted. If you do not agree
to any modified terms of this Agreement, you may terminate the Agreement in the manner described in Section 8.2
below. Your continued use of the Service after notice will constitute your acceptance of the modified Agreement.
4. Use of Service; Restrictions.
4.1. Permitted Use.
Among other features, the Service enables users to create, share, upload or attach information to, and edit
"Requests for Proposal (RFPs)" and "Proposals" that are stored on the Service (collectively, "Projects"). When you
establish an account (paid or free), you may use the Service to (i) create, submit content to, edit and delete
Projects, (ii) invite other users to view, submit content to, and/or edit Projects you create, and (iii) otherwise
use the features and functionality of the Service for your internal business purposes, all subject to the terms and
conditions of this Agreement.
4.2. Prohibited Use.
You specifically agree not to: (a) "frame," distribute, resell, or permit access (except for users with whom you
share Projects in accordance with this Agreement) to the Service by any third party; (b) permit multiple end users
to access the Service using shared login credentials (i.e., a shared email address and password); (c) use the
Service other than in accordance with the instructions or documentation we provide and in compliance with applicable
federal, state, and local laws; (d) interfere with the Service or disrupt any other userâs access to the Service;
(e) reverse engineer, attempt to gain unauthorized access to the Service, or attempt to discover the underlying
source code or structure of the Service; (f) submit to the Service any content or data that is false, misleading,
defamatory, threatening, offensive, or infringing of intellectual property rights, or that contains mass mailings or
any form of "spam"; (g) submit to the Service any routine, device or other undisclosed feature, including a
so-called time bomb, virus, software lock, drop dead device, malicious logic, worm, Trojan horse or trap or back
door or software routine, that is designed to delete, disable, deactivate, interfere with or otherwise harm any
software, program, data, device, system or service, or which is intended to provide unauthorized access or to
produce unauthorized modifications; or (h) use any robot, spider, data scraping or extraction tool or similar
mechanism with respect to the Service.
4.3. APIs and Software.
We may, from time to time, make available application programming interfaces (APIs), HTML scripts, data import
tools, or other software code or executables as part of the Service ("RFP360 APIs and Software"). With respect to
the RFP360 APIs and Software, we grant you a non-exclusive, non-transferable license, only while this Agreement
remains in effect, to use the RFP360 APIs and Software to access and use the Service in compliance with the terms of
this Agreement, and for no other purpose. Except as expressly permitted herein, you agree not to distribute or
disclose the RFP360 APIs and Software to any third party.
4.4. Responsibility for Accounts.
Each set of login credentials (i.e., email address and password) for the Service may be used only by a single,
individual user. You are responsible for all use of the Service that occurs under your user accounts, and you agree
to notify us of any unauthorized access of which you become aware. In addition, if you share your Projects with
others, you are responsible for any of their activity on the Service that is related to your Projects.
5. Your Content.
Except for the rights you grant to us in this Agreement, you retain all right, title and interest in the content
and data you enter into a Project or otherwise submit to the Service ("Your Content"). You represent and warrant
to us that you either own all rights (or have obtained all licenses, consents or permissions) necessary to
submit Your Content to the Service, and you agree not to submit content that infringes or misappropriates the
intellectual property rights or other proprietary rights of any third parties, including their rights of privacy
5.2. Your Content Submitted to Projects.
When you enter Your Content into Projects, you grant us a non-exclusive, royalty free, worldwide license to use
Your Content in order to make the Service and its features available in accordance with the online documentation
we provide for the Service, including by displaying it to other users with whom you share Projects and (subject
to the sharing privileges selected for the applicable Project) making it available for download and modification
by other users with whom you share Projects.
5.3. Community Content.
Your Content may include comments or other content you post on discussion boards or in other public communities
or forums we maintain on the Site and Service ("Community Content"). You hereby grant us a perpetual,
irrevocable, royalty free, worldwide license to (a) display, distribute, reproduce, reformat, make available for
download, modify and use Community Content, and (b) sublicense these rights to other users of the Site and
Service. In addition, you agree that we may identify you as the source of Community Content (using the name and
contact information you provide us).
5.4. Treatment of Your Content at Termination or Subscription Cancellation.
Notwithstanding your ownership of Your Content, we have no obligation to retain, and may delete, Your
Content from the Service at any time after (a) this Agreement is terminated or (b) with respect to Your
Content on Projects you have created, when you cancel your subscription pursuant to Section 6.3. We have no
obligation to make Your Content available to you in any form after termination or cancellation.
6. Subscription Renewals, Cancellations, and Expirations.
Your initial subscription period for the Service is established if and when you purchase a monthly or annual Subscription
Plan. Unless you notify us that you wish to cancel in accordance with Section 6.3, your subscription will automatically
for successive subscription periods of the same length. Unless we separately agree otherwise in writing, we charge
Subscription Fees in advance at the beginning of each subscription renewal period. You may view your current
Subscription Plan and billing information at any time in your Account Administration settings.
6.2. Plan Change.
If you choose to change your Subscription Plan (upgrade or downgrade), you may do so at any time during the subscription
period. Your Subscription Plan change and your new Subscription Fee will be billed at the start of the next billing cycle.
You can upgrade and downgrade to any paid Subscription Plan, keeping in mind any restrictions on functionality will apply
(such as expiration of project credits, concurrent Projects, or other features tied to specific Subscription Plans).
You can purchase additional Project credits anytime without impacting your regular Subscription Plan.
Once a subscription period (initial or renewal) commences, all Subscription Fees paid for that period are nonrefundable.
You may cancel your subscription at any time before the end of the then-current subscription period using the cancellation
procedure we provide through the Service, in which case your subscription will not renew and we will not charge any
additional Subscription Fees. When you cancel a subscription, we will purge Your Content for your protection.
6.4 Credit Expiration.
Users purchase project credits either through Subscription Plans or by purchasing additional credits
(individually or in bulk). All project credits have an expiration date. Credits purchased individually or in bulk expire
after 12 months. Credits purchased through monthly subscription plans expire after one month and credits purchased through
annual subscription plans expire after one year. Once the expiration date has been reached, the credit is no longer valid.
Credits are non-refundable.
7. Service Fees; Payment; Taxes.
7.1. Service Fees.
You agree to pay the fees in effect for your subscription at the time initially purchased or renewed, along
with any fees for additional services that you agree to pay while using the Service (collectively, "Service
Fees"). Current pricing for subscription plans is available on the Pricing page of our Site. Unless we separately agree
otherwise in writing, all Service Fees for subscriptions are
payable in advance prior to the commencement of each subscription period. Other Service Fees become due and
payable as described on our Site or in this Agreement.
7.2. Billing Information.
When you register for the Service, you will provide us with either a valid, up-to-date credit card number or
the other payment information we request. If you have selected a credit card as your payment method, you
authorize us to charge your credit card for Service Fees on the first day of your initial subscription
period and each renewal subscription period and, for any additional Service Fees beyond your subscription
fee, to charge your credit card when such fees become due and payable. You are responsible for maintaining
up-to-date payment information on the Service. If we cannot charge your credit card for any Service Fees
when due because your payment information is no longer valid and up-to-date, or if we do not receive your
payment when due through the alternative payment method you have selected, we may, at our election: (a)
suspend your access to the Service, in which case you will be responsible for all Service Fees incurred
during the period of suspension; (b) immediately terminate this Agreement, in which case your right to use
the Service will cease; or (c) without waiving our rights to suspend or terminate your account, allow you a
longer period during which to make payment, in which case you will remain responsible for all Service Fees
incurred while we await your payment. Late payments incur interest charges at the rate of 1% per month on
any outstanding balance or the maximum amount permitted by applicable law, whichever is less. The Service
Fees shown on our Site includes any local, state or federal taxes or duties.
8. Term and Termination.
This Agreement begins when you first create a password to access the Service and accept the Agreement. It
remains in effect indefinitely until you cancel your subscription pursuant to Section 6.3, or the Agreement
is otherwise terminated pursuant to this Section.
8.2. Termination by You.
You may terminate this Agreement at any time upon written notice to us in accordance with this Agreement.
For avoidance of doubt, we will not be obligated to refund any Service Fees in connection with such
termination under any circumstances. Your termination under this Section 8.2 will be effective immediately.
Note that when you cancel a paid subscription pursuant to Section 6.3, your access to Projects you created
will cease, but this Agreement will not automatically terminate.
8.3. Termination by Us for Convenience.
We may terminate this Agreement at any time, for any reason, by giving you five (5) days written notice to
the email address you provided when you registered for the Service. If we discontinue your access to the
Service at the end of this five (5) day period, we will refund any prepaid, unused Service Fees for the
remainder of the then-current subscription period. Otherwise, no Service Fees will be refundable, you may
continue using the Service until the end of the then-current subscription period, and termination will be
effective at the end of your then-current subscription period.
8.4. Termination by Us for Cause.
In addition, we may terminate this Agreement and/or discontinue your access to the Service immediately,
without any obligation to notify you in advance or refund any Service Fees, if: (a) you are in breach of
this Agreement, (b) you misappropriate or infringe any of our intellectual property or proprietary rights,
or (c) you fail to make a payment when due (e.g., because your payment information is out-of-date or
8.5. Effect of Termination.
Upon termination of this Agreement for any reason: (a) all rights and obligations of the parties will cease,
except that the following sections will survive termination or expiration: 1, 3, 4.2, 5, 7 (with respect to
amounts that are accrued but unpaid as of the effective date of termination), 8.5, 9, 10, 11, 12.2, and 13
through 18; (b) you will have no further right to use the Service (notwithstanding any provision of a
surviving section); and (c) we have no obligation to retain, and may delete, any of Your Content stored on
9. Intellectual Property.
9.1. Your Content.
As between the parties, you retain all right, title and interest in and to Your Content, except for the
rights you grant to us in this Agreement.
9.2. Service and Documentation.
As between the parties, we retain all right, title and interest in and to (a) the Service and the technology
and software used to provide it (including all intellectual property and proprietary rights therein), and
(b) all electronic and print documentation and other content and data (excluding Your Content) that you
access through the Service. Except for the rights to access and use the Service and RFP360 APIs and Software
that we explicitly grant you in this Agreement, we do not grant you any right or license in or to any of our
intellectual property or proprietary rights.
We are grateful for any input you provide, but we need to maintain our intellectual property rights in the
Service. Accordingly, you acknowledge and agree that all feedback and suggestions for enhancement that you
provide to us concerning the Service ("Feedback") will be owned by us without any obligation of compensation
10. Privacy and Security.
and disclosure of personal information that we obtain about you in connection with the Service. For
Projects, or that you include in content posted to message boards or other public areas of the Service. When
you enter information into Projects, it may be viewed, edited, modified, and/or deleted by other users who
have been invited to share such Projects (subject to the access and use privileges for a Project established
by its creator).
You agree not to disclose, duplicate, publish, release, transfer or otherwise make available our
Confidential Information in any form to, or for the use or benefit of, any person or entity without our
prior written consent. "Confidential Information" means any of our financial, technical, or business
information that we designate as confidential at the time we disclose it to you, or that you reasonably
should understand to be confidential based on the nature of the information or the circumstances surrounding
its disclosure. The specific features of the Service, the documentation we provide to you in connection with
the Service, and the RFP360 Software and APIs are our Confidential Information. Confidential Information
does not include any information that: (i) is or becomes generally known to the public without breach of
your confidentiality obligation under this Agreement; (ii) was independently developed by you without breach
of your confidentiality obligation under this Agreement; or (iii) is received from a third party who
obtained such Confidential Information without breach of any obligation owed to us.
12. Representations and Warranties; Disclaimer.
12.1. Limited Warranty.
We represent and warrant that, when available, the Service will operate substantially as described in the
online documentation that we make available with the Service.
You acknowledge that, as internet-delivered services, the Service may experience periods of downtime,
including but not limited to scheduled maintenance. Except as expressly provided in this Section, WE MAKE NO
REPRESENTATION OR WARRANTY WITH RESPECT TO THE SERVICE, INCLUDING THE DOCUMENTATION, RFP360 SOFTWARE AND
APIS, OR ANY DATA OR CONTENT MADE AVAILABLE THROUGH THE SERVICE, WHETHER EXPRESS OR IMPLIED. WE SPECIFICALLY
DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND
ACCURACY. WE DO NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTIONS OR
13. Limited Liability; Exclusion of Certain Damages.
IN NO EVENT WILL WE BE LIABLE UNDER THIS AGREEMENT, WHETHER UNDER CONTRACT, TORT, OR ANY OTHER THEORY OF
LIABILITY, FOR (I) ANY AMOUNT IN EXCESS OF THE FEES ACTUALLY PAID TO US FOR THE SERVICE FOR THE CURRENT
SUBSCRIPTION PERIOD, OR (II) ANY LOST PROFITS OR OTHER INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, OR
PUNITIVE DAMAGES, EVEN IF WE HAVE BEEN GIVEN ADVANCE NOTICE OF SUCH POSSIBLE DAMAGES, OR (III) ANY LOSS OF
YOUR CONTENT OR DATA.
You agree that you will defend, indemnify and hold us and our corporate affiliates, directors, officers,
employees, successors, assigns and agents harmless from and against any claim, demand, action, proceeding,
loss, damage, settlement, penalty, cost, expense or other liability (including but not limited to reasonable
attorney fees and expenses) arising out of (1) any allegation that, if true, would establish a breach of
this Agreement by you, (2) any of Your Content that you post to the Service (except to the extent such
liability results from our modification of Your Content or use of Your Content in violation of this
Agreement), or (3) any Work Request that you submit, including any claims that your Work Request has created
an employment relationship with any Service Provider(s).
You agree that, if you have (or have had) a paid subscription to the Service, we may identify you as a
customer on our Site or in our customer list, blogs, and other public communications.
Except in cases where this Agreement permits notice via email, all notices required under this Agreement
must be in writing, must be sent via internationally recognized delivery service or messenger or via U.S.
mail, and will be deemed given five (5) business days after having been sent. Notices must be addressed as
follows: if to us, to Attn: Legal Affairs, 6641 Oak Street, Kansas City, Missouri 64113, and for notices
permitted to be sent via email, to email@example.com; and, if to you, to the contact name and address or email
address that you have provided us.
17. English Language.
The Agreement has been written in the English language, and you agree that this English language version
will govern your use of the Service and the other matters described in this Agreement.
Neither you nor we will be liable for delay or default under this Agreement if caused by conditions beyond
our or your reasonable control (e.g., technology malfunctions or acts of God). This Agreement is governed by
the internal laws of the State of Missouri, without regard to its conflicts of law rules, and you hereby
consent to exclusive jurisdiction and venue in the state and federal courts located in Kansas City, Missouri
for any dispute arising out of this Agreement. Neither party may assign this Agreement to a third party
without the written consent of the other party in advance, except that we may assign this Agreement without
such consent to a third party acquiring all or substantially all of our assets or equity securities. This
Agreement will bind and benefit the parties, their successors, and their permitted assigns. You and we are
independent contractors to each other in our activities under this Agreement. This Agreement, including the
and the other documents referenced in this Agreement, represents the entire agreement between you and us with respect to
your use of the Service. You agree that this Agreement expressly supersedes (i) any terms or conditions stated in a
purchase order or similar ordering document submitted to us or executed by us, whether submitted or executed before or
after the date you accept this Agreement, and (ii) any other contemporaneous or prior agreements regarding the Service.