Terms & Conditions
1. INTRODUCTION AND PARTIES
The Customer has agreed to sign these Terms and Conditions for the purpose of regulating the termsthat shall apply to all Subscription Services provided by UpTime Labs Ltd (CRN: 13748573) (‘UpTimeLabs’) to the Customer from time to time.
2. DEFINITIONS AND INTERPRETATION
The following definitions apply to these Terms and Conditions and any Order Form unless the context requires otherwise:
“Affiliate” means in relation to any party (or other person), any subsidiary or holding company of that party (that person) and any subsidiary of any such holding company, in each case from time to time
“Applicable Law” means any applicable law, rule, regulation, regulatory requirement; any form of secondary legislation, or case law; and any determination that a party (or its relevant Affiliate) is bound to have regard to in connection with these Terms and Conditions;
“Authorised User” means any employees or independent contractors of Customer or its affiliates who will access and use the Subscription Services
“Business Day” means a day other than a Saturday, a Sunday or a public holiday in England;
“Confidential Information” means any information disclosed by the Disclosing Party (or its Affiliate) to the Receiving Party, or which is received by the Receiving Party under or in connection with an Assignment and which relates to the Disclosing Party (or its Affiliate), and that is marked confidential, that the Receiving Party knows or reasonably ought to know is confidential, or which is of its nature confidential, including:
2.1. all Customer Data and all business logic, methods, algorithms, concepts and ideas of the Customer or its Affiliates which are disclosed to or received by UpTime Labs, all of which is the Confidential Information of the Customer; and
2.2. these Terms and Conditions but excluding any information that:
(a) is or becomes generally available to the public other than as a result of its disclosure by the Receiving Party or its agents, officers or employees in breach of these Terms and Conditions (except that any compilation of otherwise public information in a form not publicly known shall still be treated as Confidential Information);
(b) was lawfully in the possession of the Receiving Party before the information was disclosed to it by the Disclosing Party;
(c) the parties agree in writing is not confidential or may be disclosed; or
(d) is developed by or for the Receiving Party independently of the information disclosed by the Disclosing Party;
“Customer Data” means all information in any form which UpTime Labs receives from the Customer or a Customer Affiliate in connection with an Assignment, including any information it accesses on the Customer’s or its Affiliates’ IT systems in the course of the relevant Assignment;
“Data Protection Legislation” means the UK General Data Protection Regulation, being the retained version of Regulation (EU) 2016/679 as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (UK GDPR), the UK Data Protection Act 2018; the Directive 2002/58/EC (ePrivacy Directive) and/or the Privacy and Electronic Communications (EC Directive) Regulations 2003, and any other applicable law relating to the
processing, privacy and/or use of Personal Data, as applicable to either party in connection with these Terms and Conditions and any laws that replace, extend, re-enact, consolidate or amend any of the foregoing or laws that are analogous to any of them;
“Disclosing Party” means a party to these Terms and Conditions which (or whose Affiliate) discloses or makes available, directly or indirectly, Confidential Information;
“Force Majeure Event” means an event occurring or a set of circumstances arising after the date of entering into these Terms and Conditions which is beyond the reasonable control of the Affected Party; and include but are not limited to government intervention, pandemic, epidemic, strikes, lockouts or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of service providers or subcontractors.
“Intellectual Property” means patents, trade marks, rights in respect of logos and get up, trade names, designs, domain names, copyright, database rights, semiconductor topography rights, utility models, other intellectual or industrial property rights and any rights therein, in each case whether registered or unregistered and including applications or rights to apply for registration, and all rights or forms of protection having equivalent or similar effect anywhere in the world including any such rights which may now or in the future subsist and “Intellectual Property Rights or IPR” shall be interpreted
accordingly;
“Malware” means, but is not limited to, computer viruses, logic bombs, Trojan horses, worms, harmful components, or other malicious software
“Order Form” means any written quotation for Subscription Services, which outlines the detailed activities, timetable, dependencies and sequence of events which UpTime Labs shall perform, or procure the performance of, when delivering the Subscription Services, as provided by UpTime Labs
to the Customer
“Outage Party” means a one-time event with an Authorised User playing one scenario, supported by UpTime Labs Personnel
“Personal Data” means all information in any form which UpTime Labs receives from the Customer ora Customer Affiliate in connection with the Subscription Services, including any information it accesseson the Customer’s or its Affiliates’ IT systems in the course of the relevant Subscription Services;
“Professional Advisers” means, in respect of the Receiving Party, its lawyers, accountants, bankers,auditors and any other professional advisers who are subject to fiduciary duties of confidence andloyalty;
“Receiving Party” means any party to these Terms and Conditions which (or whose Affiliate) receivesor obtains, directly or indirectly, Confidential Information;
“Subscription Services” means the Subscription Services supplied to the Customer by UpTime Labs asset out in the Order Form;
“Subscription Term” means the period during which UpTime Labs is engaged to render SubscriptionServices to the Customer;
“Terms and Conditions” means the terms agreed between UpTime Labs and the Customer for theprovision of Subscription Services incorporating these Terms and Conditions and the Order Form;
“Trial” means the delivery of Subscription Services detailed on an Order Form to be delivered at adiscounted, or free, Fees, for a predetermined Subscription Term;
“UpTime Labs Personnel” means any employees, officers, staff, other workers, contractors, agentsand consultants of UpTime Labs, its Affiliates and any of their subcontractors who are engaged in theperformance of any Subscription Services from time to time;
3. ORDER DETAILS
3.1. Customer orders a subscription to the Subscription Services by entering into an Order Form (as may be amended or modified from time to time) between Customer and UpTime Labs (an “Order Form”). An Order Form will be any order for Subscription Services or any other document (which may be in the form as set out in Schedule 1).
3.2. The Order Form will also designate the length of the Subscription Term. If the Order Form contains terms that expressly conflict with these Terms and Conditions, the terms of the Order Form will take precedence. Capitalised terms used in this Terms and Conditions and/or the Order Form will have the same meaning within each.
3.3. Any samples, drawings, descriptive matter or advertising issued by the Company, and any descriptions or illustrations contained on the Company’s website, or contained in the Company’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services and/or Products described in them. They shall not form part of the Contract or have any contractual force.
4. AUTHORISED USERS
4.1. The Order Form will designate the number of Customer’s Authorised Users of the SubscriptionServices. Customer may designate only the following individuals as Authorised Users: employees orindependent contractors of Customer or its affiliates who will access and use the Subscription Servicesby or through Customer and solely for the benefit of Customer or its affiliates. Only Authorised Userspermitted under these Terms and Conditions may use the Subscription Services.
4.2. Each Authorised User corresponds to a single Authorised User licence. Customer will ensure thatonly one person accesses the Subscription Services per each Authorised User licence. If Customerexceeds the usage authorised by the Order Form (for example, by exceeding the number of AuthorisedUsers or exceeding the Subscription Term), then UpTime Labs reserves the right to charge and invoiceCustomer the pro-rata Fees corresponding to such overage.
4.3. Customer may add additional users to Customer’s subscription during any Subscription Term(“Additional Authorised Users”). UpTime Labs will notify Customer in advance of any pro-rataadditional Fees associated with the Additional Authorised Users. Customer may be required to modifyits existing Order Form or enter into a new Order Form to add Additional Authorised Users. If there isa delay in executing an Order Form for Additional Authorised Users, then UpTime Labs reserves theright to, rather than extend the Subscription Term, reduce the Fees for those Additional AuthorisedUsers on a pro-rata basis commensurate with the reduction in length of the Additional AuthorisedUsers’ Subscription Term — this is to ensure that the expiration dates of Customer’s original OrderForm and its Additional Authorised User Order Form are coterminous.
5. SUBSCRIPTION SERVICES
5.1. Subject to the Customer’s compliance with the terms of these Terms and Conditions, during theSubscription Term, UpTime Labs will provide and maintain the Subscription Services ordered byCustomer, together with all content, works, and materials incorporated into the Subscription Services(the “Subscription Content”), for access and use by the Customer in accordance with the terms ofthese Terms and Conditions. Certain features of the Subscription Services may be provided ormaintained by an affiliate of UpTime Labs with UpTime Labs remaining responsible for theperformance of its obligations under these Terms and Conditions.
5.2. UpTime Labs may, at its sole discretion, offer the Customer free or discounted Trials or pilots. AllTrials and Order Forms applicable thereto will be subject to these Terms and Conditions. UpTime Labsmay cancel or modify the terms of a free Trial at any time, without prior notice and without liability.At the end of the designated Trial period Customer will be required to subscribe to the SubscriptionServices at UpTime Labs’s then-current prices in order to continue using the Subscription Services.
5.3. UpTime Labs reserves the right to modify (including changing, adding to, removing, or replacing)the Subscription Services or components thereof and/or the Subscription Content, as well as theirfeatures and functionality, at any time with or without notice, provided that no such modification willmaterially diminish the features or functionality of the Subscription Services provided to Customer asof the effective date of Customer’s then-current Order Form. Nothing in these Terms and Conditionswill prevent UpTime Labs from updating or removing from time-to-time Subscription Content thatUpTime Labs, at its sole discretion, deems out-dated.
5.4. The Subscription Services may contain products, Subscription Services, platforms, and/orSubscription Content owned by third parties and integrated into the Subscription Services (“ThirdParty Subscription Services”). Use of any Third-Party Subscription Services is subject to any terms orconditions provided to Customer that govern the respective Third-Party Subscription Services.
5.5. UpTime Labs will use commercially reasonable efforts to make the Subscription Services availableon a consistent basis, excluding any planned downtime (including for updates and maintenance).While UpTime Labs expects planned downtime to be minimal, during any planned downtime, the Subscription Services may not be accessible. UpTime Labs or its contractors will provide the Customerwith reasonable technical support as may be necessary to assist the Customer in accessing and usingthe Subscription Services.
6. CUSTOMER RIGHTS AND OBLIGATIONS
6.1. The Customer will use the Subscription Services only for Customer’s internal business purposesand in accordance with all laws, regulations, and UpTime Labs usage instructions applicable to theSubscription Services. Customer will ensure that its Authorised Users comply with the terms of theseTerms and Conditions. Any action taken by an Authorised User with respect to the SubscriptionServices will be deemed an action taken by Customer; as such, a breach of these Terms and Conditionsby an Authorised User will be deemed a breach by Customer. UpTime Labs has the right, but not theobligation, to monitor the Customer’s use of the Subscription Services to ensure compliance withthese Terms and Conditions. Any monitoring by UpTime Labs is not an assumption of liability byUpTime Labs, nor will it discharge the Customer of its obligations under these Terms and Conditions.
6.2. The Customer will not (nor allow any third party) to do any of the following (the “UsageRestrictions”):
6.2.1. access or use the Subscription Services: (i) in any manner that infringes upon or violates thirdparty Intellectual Property Rights or rights of privacy or publicity, (ii) in a way intended to avoidincurring fees or exceed usage limits (including allowing multiple persons to use a single AuthorisedUser licence), (iii) to access or use the personal or confidential information of any third party withouttheir permission, (iv) or purposes of competitive analysis or the development or provision of acompeting service or product, (v) in violation of any law, rule, or regulation applicable to theSubscription Services, including any Data Protection Legislation, as applicable, (vi) to engage in anyunauthorised or unlawful receipt, processing, transmission or storage of any Personal Data of theUpTime Labs Group or any third parties, or (vii) any manner that is reasonably likely to damage,disable, overload, or impair the Subscription Services, interfere with any third party’s use andenjoyment of the Subscription Services, or in any manner that UpTime Labs deems excessive orabusive;
6.2.2. circumvent, or attempt to circumvent, any security feature or access restriction of theSubscription Services or any part thereof;
6.2.3. modify, decompile, reverse engineer, recreate, disassemble, or otherwise make any changes tothe Subscription Services or the Subscription Content;
6.2.4. falsify or delete any attribution, authorship or ownership, legal, or proprietary notices, labels,or designations of the Subscription Content or other components of the Subscription Services;
6.2.5. copy, disclose, reproduce, broadcast, sell or re-sell, lease, redistribute, publish, distribute,prepare derivative works of, perform, publicly display, modify, combine with other products orSubscription Services, or otherwise exploit the Subscription Services or Subscription Content, (ii)download Subscription Content that is not made available for download by UpTime Labs, (iii) permitany non-Authorised User third party to view, access, or use the Subscription Services or SubscriptionContent;
6.2.6. input, upload, transmit, access, or otherwise provide to or through the Subscription Services,any information or materials that are unlawful or injurious, or contain, transmit or activate anyMalware.
6.2.7. impersonate any person or entity, including UpTime Labs or any UpTime Labs employee, orfalsely state or otherwise misrepresent an affiliation with any person or entity; or
6.2.8. The Customer will maintain the confidentiality and security of their passwords and accountinformation and will not provide that to any other person or entity. The Customer is responsible forrestricting access to their computers and mobile devices as necessary to ensure the confidentialityand security of such information. Customer will promptly notify UpTime Labs if Customer suspects anAuthorised User account information or password has been compromised.
7. DATA PROTECTION
7.1. This clause shall be read together with our Privacy Policy which is available on our website.
7.2. Both parties will comply with all applicable requirements of the Data Protection Legislation. Thisclause is in addition to, and does not relieve, remove or replace, a party’s obligations under the DataProtection Legislation.
7.3. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customeris the data controller and UpTime Labs is the data processor (where Data Controller and DataProcessor have the meanings as defined in the Data Protection Legislation). The parties furtheracknowledge that there are exceptions where UpTime Labs are the data controller and will not act onCustomer instructions but in accordance with UpTime Labs’s own legal and professional obligations.This usually applies to data UpTime Labs hold and process about the Customer in relation to AML,Terrorist Financing, Transfer of Fund (Information on the Payer) Regulations 2017 and our obligationto report malpractice to the authorities.
7.4. Without prejudice to the generality of clause 7.2, the Customer will ensure that all necessaryappropriate consents and notices are in place to enable lawful transfer of the Personal Data to us forthe duration and purposes of the contract.
7.5. Without prejudice to the generality of clause 7.2, UpTime Labs shall, in relation to any PersonalData processed in connection with UpTime Labs’s delivery of the Subscription Services under theseTerms and Conditions:
7.5.1. ensure that UpTime Labs have in place appropriate technical and organisational measures, toprotect against unauthorised or unlawful processing of Personal Data and against accidental loss ordestruction of, or damage to, Personal Data, appropriate to the harm that might result from theunauthorised or unlawful processing or accidental loss, destruction or damage and the nature of thedata to be protected, having regard to the state of technological development and the cost ofimplementing any measures (those measures may include, where appropriate, pseudonymisation andencrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of UpTime Labssystems and services, ensuring that availability of and access to Personal Data can be restored in atimely manner after an incident, and regularly assessing and evaluating the effectiveness of thetechnical and organisational measures adopted by UpTime Labs);
7.5.2. ensure that all UpTime Labs Personnel who have access to and/or process Personal Data areobliged to keep the Personal Data confidential; and
7.5.3. not transfer any Personal Data outside of the United Kingdom or European Economic Areaunless the Customer’s prior written consent has been obtained and the following conditions arefulfilled:
7.5.3.1. UpTime Labs have provided appropriate safeguards in relation to the transfer;
7.5.3.2. the data subject has enforceable rights and effective legal remedies;
7.5.3.3. UpTime Labs comply with UpTime Labs’s obligations under the Data Protection Legislation byproviding an adequate level of protection to any Personal Data that is transferred; and
7.5.3.4. UpTime Labs comply with reasonable instructions notified to them by the Customer inadvance with respect to the processing of the Personal Data; and
7.5.3.5. for the avoidance of doubt, signing and returning these Terms and Conditions constitutes theprovision of prior written consent in relation to such transfers.
7.5.4. assist the Customer at the Customer cost, in responding to any request from a Data Subject andin ensuring compliance with its obligations under the Data Protection Legislation with respect tosecurity, breach notifications, impact assessments and consultations with supervisory authorities orregulators;
7.5.5. notify the Customer without undue delay on becoming aware of a Personal Data breach; and at the Customer’s written request, delete or return Personal Data and copies thereof to the Customeron termination of the Terms and Conditions unless required by Applicable Data Processing Law tostore the Personal Data.
8. CONFIDENTIALITY
8.1. The Receiving Party shall keep the Disclosing Party’s Confidential Information confidential and,except with the prior written consent of the Disclosing Party or where authorised in a particularSchedule, shall:
8.1.1. not use or exploit the Confidential Information in any way except for the purpose of exercisingits rights and performing its obligations under an Order Form;
8.1.2. not disclose or make available the Confidential Information in whole or in part to any thirdparty, except as expressly permitted by these Terms and Conditions; and
8.1.3. apply the same security measures and degree of care to the Confidential Information as theReceiving Party applies to its own confidential information (and which will in any event be no lessstringent than the measures and care which it is reasonable to expect of a person operating in thesame sector in the same circumstances).
8.2. The Receiving Party may disclose the Disclosing Party’s Confidential Information to those of itsagents, sub-contractors, officers, employees, (in the case of UpTime Labs) the UpTime Labs Personneland Professional Advisers who need to know it in connection with these Terms and Conditions,provided that:
8.2.1. it informs each such person of the confidential nature of the Confidential Information beforedisclosure; and
8.2.2. it procures that each such person will be bound by obligations of confidence no less restrictivethan this clause, and it will be liable for the failure of any such person to comply with this clause.
8.3. The Receiving Party may disclose Confidential Information to the extent such ConfidentialInformation is required to be disclosed by law, by any regulator or any other governmental or otherregulatory authority with jurisdiction over the Receiving Party, or by a court of competent jurisdiction,or under the rules of a relevant securities exchange, provided in each case that, to the extent it islegally permitted to do so, it gives the Disclosing Party as much notice of such disclosure as possibleand it takes into account the reasonable requests of the Disclosing Party in relation to the content ofthat disclosure.
9. INTELLECTUAL PROPERTY
9.1. UpTime Labs and its licensors own their respective rights in the Subscription Services,Subscription Content, and Third-Party Subscription Services, including all related Intellectual PropertyRights therein. All rights in the Subscription Services, Subscription Content, and Third-Party Subscription Services that are not expressly granted to Customer by these Terms and Conditions arereserved by their respective owners.
9.2. If Authorised Users submit any Authorised User Content to a publicly-available (by other users ofthe Subscription Services), then: (a) such Authorised User Content will be deemed non-confidentialand non-proprietary; (b) UpTime Labs will have the non-exclusive, royalty-free, sublicensable right touse, publish, reproduce, modify, perform, display, distribute, and otherwise exploit the AuthorisedUser Content (in whole or in part), throughout the world and in any media now known or hereafterdevised; and (c) UpTime Labs reserves the right to, at its sole discretion, remove, block, refuse to post,or take other action with respect to Authorised User Content as UpTime Labs deems appropriate,including where UpTime Labs believes that Authorised User Content is in violation of these Terms andConditions.
9.3. If the Customer provides UpTime Labs with any suggestions, comments, and/or feedbackregarding the Subscription Services (collectively, “Feedback”), Customer grants UpTime Labs aperpetual, irrevocable, royalty-free, and fully paid-up licence to use and exploit all Feedback inconnection with UpTime Labs’s business purposes, including the testing, development, maintenance,and improvement of the Subscription Services.
10. INSURANCE
10.1. At all times during the Subscription Term, UpTime Labs will carry such types and amounts ofinsurance as are customarily carried by providers of Subscription Services. UpTime Labs will provideCustomer with proof of such insurance coverage upon Customer’s request and will require UpTimeLabs’s insurance providers to give Customer at least thirty (30) days notice of cancellation ortermination of such insurance.
11. REPRESENTATIONS, WARRANTIES, DISCLAIMERS
11.1. UpTime Labs and Customer each represent that: (a) it has full legal and corporate right andauthority to enter into these Terms and Conditions and to perform all its obligation and grant all rightsgranted by it under these Terms and Conditions; (b) the individual entering into these Terms andConditions on behalf of that party has full right and authority to do so and to bind the respective partyto the terms of these Terms and Conditions; (c) it will comply with all laws and regulations applicableto that party in connection with the Subscription Services; and (d) its entry into and performanceunder these Terms and Conditions will not violate any third-party agreements or obligations to whichit is bound.
11.2. UpTime Labs further warrants that the Subscription Services will be performed diligently, withall reasonable skill and care by appropriately trained and experienced personnel, in a professionalmanner at least to industry standards. For any uncured breach by UpTime Labs of the foregoingwarranty, Customer’s exclusive remedy will be to terminate these Terms and Conditions for cause, asprovided for herein.
11.3. Customer further represents and warrants that Customer has full right and authority todetermine the purpose and means of processing Personal Data of the Customer and to authoriseUpTime Labs to process Personal Data of the Customer in accordance with these Terms andConditions.
11.4. Except as may be expressly provided for in these terms and conditions:
11.4.1. the Subscription Services and Subscription Content are provided on an “as-is” and “asavailable” basis without any warranties of any kind, and UpTime Labs expressly disclaims anyadditional express warranties and all implied warranties, including implied warranties ofmerchantability, fitness for a particular purpose, title, and non-infringement; and
11.4.2. Customer acknowledges that UpTime Labs does not warrant that the Subscription Serviceswill meet Customer’s needs, result in any specific outcome for Customer or Authorised Users, or beuninterrupted, up-to-date, timely, secure, free from Malware, or error-free. Certain jurisdictions donot allow the exclusion of implied warranties in certain circumstances, so the exclusions set forthabove may not apply to Customer.
12. SUSPENSION OF SUBSCRIPTION SERVICES
12.1. UpTime Labs reserves the right to suspend the Subscription Services, without notice, for a reasonable period of time as may be necessary for UpTime Labs to resolve any actual or threatened risks that, at UpTime Labs’s sole discretion, pose a credible risk of harm to the Subscription Services or the security or integrity thereof. UpTime Labs will use commercially reasonable efforts to limit the suspension to address the risk at issue.
12.2. UpTime Labs may immediately suspend, disable, or deny access to the Subscription Services by any individual Authorised User who violates any of the Usage Restrictions.
12.3. If any Fees are not paid when due, UpTime Labs may suspend its provision of the SubscriptionServices unless and until all Fees and other sums due are paid in full.
13. SUBSCRIPTION RENEWALS
13.1. If Customer renews its subscription to the Subscription Services, the renewed subscription willbe governed by the Terms and Conditions in effect as of the Renewal Notice Date, as applicable, unlessotherwise agreed upon by the parties.
14. GOVERNING LAW AND JURISDICTION
14.1. These Terms and Conditions, and any dispute or claim (including non-contractual disputes orclaims) arising out of or in connection with it or its subject matter or formation shall be governed byand construed in accordance with the law of England and Wales.
14.2. Each Party irrevocably agrees that the courts of England and Wales shall have exclusivejurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out ofor in connection with these Terms and Conditions or its subject matter or formation and any disputeor claim.
15. NOTICE
15.1. A notice under or in connection with these Terms and Conditions must be in writing and mustbe sent by first class post pre paid recorded delivery (and airmail if overseas) to the party due toreceive the Notice at the relevant address specified in clause 15.3 below; and if served via email, must be sent from the sending party’s designated email address in clause 15.3 to the other party’sdesignated email address in clause 15.3. (a “Notice”)
15.2. A Notice will be deemed to be given if delivered personally, when left at the relevant address, ifsent by post (other than air mail), two Business Days after posting it; if sent by air mail, six BusinessDays after posting it; if sent to the relevant email address specified in clause 15.3, at the time ofreceipt, unless received after 5.00pm on any day when it shall be deemed to have been served on the next Business Day; and/or if received by email from the relevant email address specified in 15.3 at thetime of receipt, unless received after 5.00pm on any day when it shall be deemed to have been servedon the next Business Day.
15.3. The address for Notices is:
15.3.1. in respect of the Customer:
Post: Addressed to: [person]
Address: [address]
Email: [email]; and
15.3.2. in respect of UpTime Labs:
Email: info@uptimelabs.io
15.4. Either party may change its address for Notices by Notice to the other.
15.5. The provision of this clause shall not apply to service of any legal proceedings.
16. MISCELLANEOUS
16.1. As between UpTime Labs and Customer, these Terms and Conditions may only be amended byagreement by both parties in writing.
16.2. Except as expressly stated in these Terms and Conditions, all rights and remedies available underthese Terms and Conditions are cumulative and no single right or remedy will be exclusive of anyothers. The waiver or failure by a party to exercise any right or remedy provided for under these Termsand Conditions will not be deemed a waiver by that party of any further right or remedy under theseTerms and Conditions.
16.3. Neither party will be in breach of these Terms and Conditions by reason of its failure to performits obligations as a result of, whether directly or indirectly, a cause beyond that party’s reasonablecontrol, including local law or regulation, acts of God, Internet failures or delays, war or terrorism, civildisturbance or labor disputes, act of government, or other Force Majeure Event.
16.4. UpTime Labs may assign its rights or obligations under these Terms and Conditions at itsdiscretion. Customer may not assign these Terms and Conditions or any of its rights or obligationshereunder, without UpTime Labs’s prior written consent, except (a) in connection with a merger,acquisition, or sale of all or substantially all of Customer’s assets or (b) to an affiliate of Customer.
16.5. UpTime Labs and Customer are acting solely as independent contractors of one another withrespect to these Terms and Conditions and the Subscription Services. Nothing in these Terms andConditions constitutes or will be construed as creating a partnership, joint venture, agency, oremployer-employee relationship between the parties.
16.6. Unless this Terms and Conditions expressly provides otherwise, use of the term “including”within this Terms and Conditions is deemed to mean “including, but not limited to.”
16.7. These Terms and Conditions are solely for the benefit of the parties to these Terms andConditions and their permitted successors and assigns. Nothing in these Terms and Conditions, express or implied, confers any third-party beneficiary rights or remedies to any person or entity byreason of these Terms and Conditions.
16.8. These Terms and Conditions (including all amendments, Order Forms, other agreements, and/orterms incorporated therein) contains the entire agreement and understanding between the partiesrelating to the subject matter of these Terms and Conditions and supersedes all prior agreements andunderstandings between the parties relating to the subject matter of these Terms and Conditions.
16.9. Both parties authorise the other to use their name, logo and/or Intellectual Property withoutnotice to or consent, in connection with certain promotional materials that either party maydisseminate to the public. The promotional materials may include, but are not limited to, brochures,video tape, internet website, press releases, advertising in newspaper and/or other periodicals,lucites, and any other materials.