PREAMBLE
This End User License Agreement for Upsert Software (this "Agreement") is entered into by and between Upsert, LLC, a Pennsylvania limited liability company ("Upsert"), and the individual or entity identified during registration or on an applicable Order Form ("Customer" or "End User"). This Agreement governs Customer's use of the Upsert software module(s) identified during registration or on the applicable Order Form (the "Software"), together with Exhibit A (License Scope & Fees Schedule) and Exhibit B (Support Services), each of which is incorporated into and forms part of this Agreement.
Upsert grants End User a license to use the Software on the condition that End User has: (a) provided Upsert with the information requested during registration, including organization name, address, and applicable serial number(s), so that Upsert may register End User as a licensee of the module(s) covered by this Agreement; and (b) accepted all terms and conditions of this Agreement during installation, registration, or purchase of the Software. If End User does not accept all terms and conditions of this Agreement, End User has no license to use or install the Software.
Where this Agreement's terms differ by License Tier (as defined in Exhibit A), the applicable terms are those for the License Tier identified on End User's Order Form or registration record. If the body of this Agreement conflicts with an Exhibit, the Exhibit controls solely as to the specific subject matter it addresses.
1. DEFINITIONS
(a) "Agreement" means this End User License Agreement for Upsert Software, including Exhibit A and Exhibit B.
(b) "Business Day" means Monday through Friday, excluding the U.S. federal holidays Upsert observes as described in Exhibit B.
(c) "Business Hour" means an hour falling within Support Hours, as defined in Exhibit B.
(d) "Documentation" means the specifications for the Software, including the help files accompanying the Software and any release notes Upsert publishes for the Software.
(e) "License Tier" means one of the license and pricing models described in Exhibit A that Customer has purchased, as identified on Customer's Order Form or registration record: (i) Per-User Subscription; (ii) Per-Customer Annual Subscription; or (iii) Per-Customer One-Time Purchase.
(f) "Order Form" means an ordering document, registration record, order confirmation, or similar record (including electronic records generated through Upsert's purchasing systems or a third-party marketplace, such as the SugarAI/SugarCRM Marketplace) that identifies the Software, License Tier, applicable fees, and number of licensed Users, if any.
(g) "Software" means the Upsert software module(s), and any related Documentation, identified in Customer's Order Form or registration record for which Customer is registered as a licensee, and any part thereof, however delivered, including by electronic download or installation.
(h) "Subscription" means a License Tier billed on a recurring monthly or annual basis, as distinguished from the Per-Customer One-Time Purchase tier.
(i) "Supported Infrastructure" means the versions of the SugarAI/SugarCRM application and related platform components (e.g., PHP version, database version, operating system) that Upsert then-currently supports for use with the Software, as Upsert publishes or otherwise makes available and updates from time to time.
(j) "User" means an individual natural person whom Customer authorizes to use the Software under a Per-User Subscription, identified by a unique login credential.
2. LICENSE GRANT
(a) Grant. Subject to Customer's compliance with this Agreement and payment of all applicable fees, Upsert grants Customer a limited, non-exclusive, non-transferable (except as set forth in Section 3) license to install and use the Software, solely for Customer's own internal business purposes, in accordance with the Documentation and the scope of use applicable to Customer's License Tier as set forth in Exhibit A. Upsert is and remains the sole owner of all right, title, and interest in and to the Software.
(b) Scope by License Tier. The scope of Customer's license depends on its License Tier:
(i) Per-User Subscription. Customer's license is limited to the number of Users identified on Customer's Order Form. Customer may reassign a User license from one individual to another (for example, upon an employee's departure) without Upsert's consent, provided Customer does not exceed the total number of licensed Users at any time. Use by more Users than licensed requires an additional purchase.
(ii) Per-Customer Annual Subscription and Per-Customer One-Time Purchase. Customer's license permits use by any number of Customer's employees or authorized contractors, solely within the single Customer organization (and its production and, if applicable, sandbox or testing instances) identified on Customer's Order Form. The license does not extend to any parent, subsidiary, or affiliated entity not identified on the Order Form.
(c) Restrictions. Except as expressly permitted above or with Upsert's prior written consent, Customer agrees not to: (i) copy the Software, except as necessary to install and use it as licensed; (ii) distribute any copy of the Software; (iii) rent, lease, lend, sublicense, time-share, or otherwise permit any party outside Customer's organization to use the Software; (iv) use the Software for personal, family, household, or other non-business purposes; (v) alter, modify, translate, decompile, disassemble, or reverse-engineer the Software, or create derivative works based on it, except to the extent such restriction is prohibited by applicable law; (vi) remove or obscure any copyright or trademark notices contained in the Software; or (vii) except as permitted under Section 2(b), install or run the Software on behalf of, or for the benefit of, any organization other than Customer.
3. TRANSFER
Customer may not sell, assign, or otherwise transfer this Agreement or the Software to another party, except that a transfer to a party that acquires all, or substantially all, of the assets of Customer's business is not a violation of this Section, provided that: (a) Customer notifies Upsert in writing of the transfer before it occurs; (b) the transferee agrees in writing to Upsert to be bound by this Agreement; and (c) Customer does not retain any copy of the Software. Upsert may condition its consent to any other proposed transfer on payment of a transfer fee or on the transferee's agreement to then-current license terms.
4. FEES AND PAYMENT
(a) License Tiers. Upsert offers the Software under the License Tiers, billing cadences, and fees described in Exhibit A.
(b) Payment. Customer will pay all fees identified on its Order Form in accordance with the payment terms stated there. Fees are non-refundable except as expressly provided in Section 8 (Limited Warranty) or Section 13 (Indemnification).
(c) Subscription Fee Changes. Upsert may change Subscription fees effective as of Customer's next renewal term by giving Customer at least thirty (30) days' written notice before the renewal date. Continued use of the Software after a fee change takes effect constitutes acceptance of the new fee.
(d) Non-Payment. If Customer fails to pay any undisputed amount when due, Upsert may, after giving Customer at least ten (10) days' written notice and an opportunity to cure, suspend Customer's access to the Software and Support Services until payment is made current, in addition to any other remedy available to Upsert.
(e) Taxes. Fees do not include any sales, use, value-added, or similar taxes. Customer is responsible for all such taxes other than taxes on Upsert's net income.
5. TERM
(a) Per-User Subscription (Monthly). If Customer has purchased a Per-User Subscription billed monthly, this Agreement remains in effect on a month-to-month basis and renews automatically at the end of each monthly billing period unless cancelled. Customer may cancel at any time by written notice to Upsert; cancellation takes effect at the end of the then-current monthly billing period, and Upsert does not provide refunds or credit for any partial month.
(b) Annual Subscriptions (Per-User or Per-Customer). If Customer has purchased a Per-User Subscription billed annually, or a Per-Customer Annual Subscription, the initial term is one (1) year from the effective date stated on Customer's Order Form (the "Initial Term"), and this Agreement renews automatically for successive one (1) year terms (each, a "Renewal Term") unless: (i) Customer notifies Upsert in writing that it does not wish to renew, at any time on or before the last day of the then-current term; or (ii) Upsert notifies Customer in writing that it does not wish to renew, at least thirty (30) days before the end of the then-current term. A non-renewal under this Section 5(b) takes effect at the end of the then-current term, and Upsert does not provide refunds or credit for any unused portion of a term already begun.
(c) Per-Customer One-Time Purchase. If Customer has purchased a Per-Customer One-Time Purchase license, the license granted in Section 2 is perpetual as to the version of the Software delivered to Customer, subject to Customer's continued compliance with this Agreement, and does not expire or require renewal. Sections 5(a) and 5(b) do not apply to this License Tier. Support Services for this License Tier are provided as described in Section 6 of Exhibit B, and access to new versions, updates, and upgrades of the Software beyond what is delivered at purchase is available only through a separately purchased maintenance or upgrade plan.
(d) General. This Agreement is effective as of the date Customer accepts its terms and, except as provided in Section 5(c) for the Per-Customer One-Time Purchase tier, continues until terminated under Section 6.
6. TERMINATION
(a) Termination for Breach. This Agreement and the license granted under it terminate automatically, without notice, if Customer fails to comply with any material term of this Agreement and, where curable, does not cure that failure within thirty (30) days after Upsert gives Customer written notice of it.
(b) Effect of Termination. On termination of this Agreement for any reason, Customer's license to use the Software ends, and Customer must promptly cease all use of the Software, return or destroy all copies of the Software in Customer's possession, and, if requested, certify such destruction in writing. Termination does not entitle Customer to any refund of fees already paid, except as expressly provided in Section 8 or Section 13.
(c) Survival. Any provision of this Agreement that, by its nature, is intended to survive termination will survive, including without limitation Sections 3, 6(b), 8 through 14 (as applicable), and this Section 6(c).
7. SUPPORT SERVICES
Upsert will provide support for the Software as described in Exhibit B (Support Services), the scope and duration of which depends on Customer's License Tier as set forth there. Support Services are conditioned on Customer running the Software on Supported Infrastructure. Except as set forth in Exhibit B, Upsert disclaims any obligation to provide support or maintenance for the Software.
8. LIMITED WARRANTY
(a) Performance Warranty. Upsert warrants that, when properly used on Supported Infrastructure, the Software will perform substantially in accordance with the Documentation for a period of ninety (90) days from the date the Software is first delivered to Customer (the "Warranty Period"). Upsert does not warrant that Customer's use of the Software will be uninterrupted or error-free. If Customer reports a non-conformity between the Software and the Documentation in writing during the Warranty Period, and Upsert is able to replicate and verify the non-conformity, Upsert will use commercially reasonable efforts to correct it and supply Customer with the correction. If Upsert is unable to correct a material non-conformity, Customer's sole and exclusive remedy is: (i) for a Subscription, a refund of any pre-paid, unused Subscription fees for the then-current term; or (ii) for a Per-Customer One-Time Purchase, a refund of the license fee actually paid to Upsert for the affected Software.
THE FOREGOING STATES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THIS WARRANTY.
(b) Ongoing Corrections. For so long as Customer has active Support Services under Exhibit B, Upsert's obligation to use commercially reasonable efforts to correct verified non-conformities between the Software and the Documentation continues for the duration of active Support Services, subject to and in accordance with Exhibit B, and is not limited to the ninety (90) day Warranty Period described in Section 8(a).
(c) OTHER THAN THE EXPRESS, LIMITED WARRANTIES STATED IN THIS SECTION 8, UPSERT MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE. ANY IMPLIED WARRANTY THAT CANNOT BE DISCLAIMED AS A MATTER OF LAW IS LIMITED IN DURATION TO THE WARRANTY PERIOD. CUSTOMER UNDERSTANDS AND AGREES THAT: (1) SOFTWARE IS LIKE ANY OTHER PRODUCT AND WILL NOT LAST FOREVER; (2) CUSTOMER IS RESPONSIBLE FOR DECIDING WHEN TO UPGRADE ITS SOFTWARE AND INFRASTRUCTURE; AND (3) EXCEPT AS DESCRIBED IN EXHIBIT B, UPSERT DISCLAIMS ANY OBLIGATION TO PROVIDE SUPPORT FOR THE SOFTWARE.
9. LIMITATION OF LIABILITY
Because software is inherently complex and may not be free of errors, Customer is advised to independently verify results produced by the Software. Neither Upsert nor its suppliers will be liable for any special, indirect, incidental, or consequential damages arising from any defect in the Software, including damages for lost time, lost data, lost profits, or loss of use, even if advised of the possibility of such damages.
IN NO EVENT WILL UPSERT'S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THE SOFTWARE OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED: (A) FOR A SUBSCRIPTION, THE FEES CUSTOMER ACTUALLY PAID TO UPSERT FOR THE SOFTWARE GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY; OR (B) FOR A PER-CUSTOMER ONE-TIME PURCHASE, THE TOTAL LICENSE FEE CUSTOMER ACTUALLY PAID TO UPSERT FOR THE SOFTWARE GIVING RISE TO THE CLAIM.
10. OTHER LIMITATIONS
Upsert has no responsibility under the warranties in Section 8 for Software that has been modified by anyone other than Upsert, or lost, damaged, or misapplied through Customer's accident, abuse, or misuse. No employee, agent, reseller, or other third party is authorized to make any warranty regarding the Software except as expressly stated in this Agreement, and Customer may not rely on any unauthorized warranty.
11. ALLOCATION OF RISK
Customer acknowledges that this Agreement allocates risk between Customer and Upsert as permitted by the Uniform Commercial Code and other applicable law, and that Upsert's pricing reflects this allocation of risk and the limitations of liability in this Agreement. If any remedy under this Agreement is found to have failed of its essential purpose, all limitations of liability and exclusions of damages in this Agreement remain in full force and effect.
12. STATE LAW RIGHTS
This Agreement gives Customer specific legal rights, and Customer may have other rights that vary by state. Some states do not allow the exclusion or limitation of implied warranties or of incidental or consequential damages, so some of the limitations above may not apply to Customer.
13. INDEMNIFICATION
If Customer receives notice of a claim that its use of the Software infringes a third party's patent, copyright, trademark, trade secret, or other intellectual property right, Upsert will defend Customer against the claim and indemnify Customer for costs and damages finally awarded by a court, provided Customer: (a) promptly notifies Upsert in writing of the claim; (b) gives Upsert, at Upsert's expense, reasonable information and assistance; and (c) gives Upsert sole control of the defense and settlement of the claim. This indemnity does not apply to any claim arising from combination of the Software with products or services not provided by Upsert, modification of the Software by anyone other than Upsert, or specifications, designs, or formulas Customer provided.
If Customer's use of the Software is enjoined, or Upsert reasonably believes it may be, Upsert will, at its option and expense: (a) obtain the right for Customer to continue using the affected Software; (b) replace or modify the Software so it becomes non-infringing while providing substantially similar functionality; or (c) if neither is commercially reasonable, terminate the license for the affected Software and refund Customer a pro-rata portion of the fees paid for it, as follows: (i) for a Subscription, a refund of pre-paid, unused fees for the then-current term; or (ii) for a Per-Customer One-Time Purchase, a pro-rata refund of the license fee paid, based on a commercially reasonable useful life of not less than five (5) years from the date of payment.
THIS SECTION STATES UPSERT'S ENTIRE LIABILITY, AND CUSTOMER'S SOLE REMEDY, FOR ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT RELATING TO THE SOFTWARE.
14. GENERAL
This Agreement, together with Exhibit A, Exhibit B, and any Order Form, is the complete and exclusive understanding between Customer and Upsert regarding the Software, and supersedes any prior purchase order, proposal, advertising, representation, or other communication concerning its subject matter. If an Order Form conflicts with this Agreement, the Order Form controls solely as to fees, License Tier, and the number of licensed Users. Customer authorizes Upsert to send Customer information about Upsert's products and services.
This Agreement may be modified only by a written agreement signed by an authorized Upsert representative, except that Upsert may update Exhibit B's Support Hours, holiday schedule, or Supported Infrastructure list from time to time by providing reasonable notice (for example, by posting an updated version and notifying Customer), provided that no such update will materially reduce the initial-response-time commitments in Exhibit B during Customer's then-current term without Customer's consent. If any provision of this Agreement is found void, invalid, or unenforceable, it will be severed without affecting the remainder of the Agreement, and replaced with a provision that conforms to applicable law and reflects the parties' original intent as closely as possible.
This Agreement is governed by the laws of the Commonwealth of Pennsylvania, and disputes relating to it will be resolved in the courts located in Allegheny County, Pennsylvania. The prevailing party in any action to enforce this Agreement is entitled to recover its reasonable attorneys' fees and costs, in addition to any other relief granted.
EXHIBIT A — LICENSE SCOPE & FEES SCHEDULE
This Exhibit A describes the License Tiers referenced in the Agreement. The License Tier applicable to Customer, and the specific fees for it, are as stated on Customer's Order Form.
| License Tier | Billing Cadence | License Scope | Term / Renewal | Support (see Exhibit B) |
|---|---|---|---|---|
| Per-User Subscription — Monthly | Monthly, in advance | Per named User identified on Order Form | Month-to-month; auto-renews monthly; cancel anytime, effective end of current billing period | Included for life of active subscription |
| Per-User Subscription — Annual | Annual, in advance | Per named User identified on Order Form | 1-year Initial Term; auto-renews annually unless Customer cancels by term end, or Upsert declines renewal (30 days' notice) | Included for life of active subscription |
| Per-Customer Annual Subscription | Annual, in advance | Organization-wide; single Customer instance on Order Form | 1-year Initial Term; auto-renews annually unless Customer cancels by term end, or Upsert declines renewal (30 days' notice) | Included for life of active subscription |
| Per-Customer One-Time Purchase | One-time, at purchase | Organization-wide; single Customer instance on Order Form | Perpetual as to version delivered; no renewal | Included for 1 year from date of purchase; additional support may be purchased thereafter |
Upsert may introduce additional License Tiers, or modify the fees or terms of this schedule, for new Order Forms entered into after the date of such change. Changes to this schedule do not apply retroactively to Customer's then-current term, except as permitted under Section 4(c) of the Agreement (Subscription Fee Changes).
EXHIBIT B — SUPPORT SERVICES
1. Support Hours
Upsert provides support during the hours of 9:00 AM to 6:00 PM Eastern Time, Monday through Friday, excluding the U.S. federal holidays Upsert observes ("Support Hours"). As of the effective date of this Agreement, Upsert observes the following U.S. federal holidays: New Year's Day, Martin Luther King Jr. Day, Presidents Day, Memorial Day, Juneteenth, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, and Christmas Day. Upsert may update its observed holiday schedule from time to time and will make the current schedule available to Customer upon request.
2. Submitting a Support Request
Customer may submit a support request (a "Ticket") through Upsert's designated support channel. Upsert may update its designated support channel from time to time upon notice to Customer. Customer is entitled to a single, named support contact for the purposes of accessing Upsert's designated support channel.
3. Priority Levels
At the time Customer submits a Ticket, Customer will assign it one of the following priority levels:
P1 (Critical) — the Software is unusable in Customer's production environment, or a critical business function is completely inoperable, with no available workaround.
P2 (High) — a significant feature or function of the Software is impaired or degraded, but Customer can continue business operations using a workaround.
P3 (Normal) — a minor issue, cosmetic defect, general how-to question, or enhancement request that does not materially impair use of the Software.
Upsert may, in its reasonable discretion, reclassify a Ticket's priority level if Upsert determines a different level applies, and will notify Customer of any reclassification and the reason for it.
4. Initial Response Times
Upsert will provide an initial response to each Ticket — acknowledging receipt and beginning investigation — within the following time frames, measured in Business Hours or Business Days from the time the Ticket is submitted (or, if submitted outside Support Hours, from the start of the next Business Day):
| Priority | Initial Response Time | Description |
|---|---|---|
| P1 — Critical | 4 Business Hours | Production unusable / critical business function inoperable, no workaround |
| P2 — High | 1 Business Day | Significant feature impaired; workaround available |
| P3 — Normal | 2 Business Days | Minor issue, cosmetic defect, or general question |
These are initial response time commitments only; they are not commitments to resolve a Ticket within a specific time. Upsert will use commercially reasonable efforts to resolve each Ticket as promptly as reasonably practicable given its priority and complexity.
5. Scope of Support
Support Services cover use of the then-current, generally available version of the Software, used in accordance with the Documentation, on Supported Infrastructure. Support Services do not include:
- issues caused by Customer's modification of the Software, or its configuration outside the Documentation;
- issues arising from Customer's use of infrastructure that is not Supported Infrastructure;
- issues caused by third-party products, customizations, or integrations not provided by Upsert; or
- training or custom development work, which Upsert may make available under a separate agreement.
6. Support Eligibility by License Tier
(a) Subscriptions. Customer is eligible to receive Support Services under this Exhibit B for as long as Customer maintains an active, current Per-User Subscription or Per-Customer Annual Subscription in good standing.
(b) Per-Customer One-Time Purchase. Customer is eligible to receive Support Services under this Exhibit B for one (1) year from the date the Software is first delivered to Customer. After that one (1) year period, Customer may continue to receive Support Services only by purchasing a separate, then-currently offered maintenance or support plan from Upsert.
7. Supported Infrastructure
Upsert will make available to Customer, upon request, its then-current list of Supported Infrastructure for the Software. Upsert may update the Supported Infrastructure list from time to time to reflect new Software releases or the end of support for older platform versions by their respective vendors.