UpShot® Subscription Service Agreement
IMPORTANT BY CHECKING THE "I ACCEPT THE UPSHOT ONLINE SERVICE AGREEMENT" BOX ON THE UPSHOT ("UPSHOT") ONLINE ORDER FORM AND/OR ACCESSING THE UPSHOT® ONLINE SERVICE ("UPSHOT ONLINE", OR THE "SERVICE") YOU REPRESENT THAT YOU ARE OVER THE AGE OF 18 OR HAVE YOUR PARENT'S CONSENT TO REGISTER FOR THE SERVICE (IF YOU ARE USING THE SERVICE AS AN INDIVIDUAL). IF YOU ARE SIGNING UP YOUR COMPANY TO USE THE SERVICE, YOU REPRESENT THAT YOU HAVE COMPLETE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, THE TERM "YOU" IN THIS AGREEMENT MEANS YOUR COMPANY. EITHER WAY, INDIVIDUALLY OR ON BEHALF OF YOUR COMPANY, YOU ARE AGREEING TO ALL THE TERMS OF THIS SUBSCRIPTION SERVICE AGREEMENT (THE "SERVICE AGREEMENT" OR "THIS AGREEMENT").
IF YOU DO NOT AGREE TO THE TERMS OF THIS SERVICE AGREEMENT, DO NOT CHECK THE "I ACCEPT THE UPSHOT ONLINE SERVICE AGREEMENT" BOX; THE REGISTRATION PROCESS WILL END AND YOU MAY NOT USE THE SERVICE.
Terms and Conditions
1. The Service
The Service consists of a browser interface, data encryption, data transmission, data access (as available) and, if applicable, synchronization software and data storage. You are responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Service, and for paying all third-party access charges (e.g., kiosk, ISP, telecommunications) incurred while using the Service.
UpShot makes no guarantees as to the continuous availability of the Service or of any specific feature(s) of the Service. UpShot reserves the right to change the Service or the terms and conditions of this Agreement at any time without notice.
2. Use of Proprietary Software
UpShot grants to you (and if you are a company, to each employee of the company accessing the Service by means of a valid account established by the company), subject to the terms and conditions of this Service Agreement, an individual, personal, non-sublicensable, non-exclusive and non-transferable license to use UpShot's proprietary software, in object code form only, and only in accordance with the applicable end user documentation, if any, and solely in conjunction with this Service Agreement. Neither you (and if you are a company, none of your employees) will, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the UpShot software; modify, translate, or create derivative works based on the UpShot software; or rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the UpShot software; use the UpShot software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels on the UpShot software. Because the UpShot software is proprietary, you agree not to publish or disclose to third parties any evaluation of UpShot's software without UpShot's prior written consent. You acknowledge that UpShot retains exclusive ownership throughout the world of all UpShot software, any portions or copies thereof, and all rights therein. Upon termination of this Service Agreement for any reason, this License will terminate, and you, and any user accessing the Service by means of a company account, if applicable, will cease to use or have access to the UpShot software.
3. Restrictions and Policies
You (and, if you are a company, your employees) will not use the Service in any way for spamming, chain letters, junk mail or distribution lists to any person who has not given specific permission to be included in such. You agree not to transmit or permit your employees to transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind. You will only use the Service for lawful purposes, in compliance with all applicable laws including, without limitations, copyright, trademark, obscenity and defamation laws. Unlawful activities may include (without limit) storing, distributing or transmitting any unlawful material, attempting to compromise the security of any networked account or site, or making direct threats of physical harm. You hereby agree to defend and indemnify UpShot against any claim or action that arises from your use of the Service in an unlawful manner or in any manner inconsistent with the restrictions and policies stated herein.
It is UpShot's policy to respect the privacy of its customers. Please see our privacy policy at www.upshot.com/privacy.html. Customer information given to us is considered confidential under our privacy policy. Our privacy policy is subject only to UpShot's obligation to comply with applicable laws and lawful government requests, to operate its business properly, or to protect its customers or itself. UpShot reserves the right to contact users of the Service via e-mail or other means to inform them of their account status or changes or alterations to the service, or to inform them about additional offerings or services being provided or contemplated. Users may at any time request that they not receive informational e-mail messages not related to their account activity or current use of the service by sending their name and address to NoEmail@UpShot.com.
4. Support
UpShot provides telephone and email support between 6:00am and 5:30pm (Pacific time zone) Monday-Friday, except on UpShot holidays, but has no obligation to provide you with hard-copy documentation, upgrades, enhancements, modifications, or other support unless specifically contracted for.
5. Provision of Contact and Billing Information and Payment of Fees
If the terms of your UpShot Online account require you to pay for the Service, you agree to provide UpShot with accurate billing information and with truthful, accurate, and complete contact information, including your legal name, company name, street address, e-mail address, and telephone number, and to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, UpShot reserves the right to terminate your access to the Service. You agree to pay UpShot the then applicable fees (the "Fees") by a payment method to be determined by UpShot (credit card, purchase order, prepayment). Applicable Fees for use of the basic Service and Fees applicable to additional services are available at www.UpShot.com. Fees include access to UpShot's standard database storage and email usage policies. UpShot reserves the right to change the Fees, applicable charges and usage policies and to institute new charges at any time, upon at least thirty (30) days prior notice to you (which may be sent by e-mail). The Fees will automatically be charged monthly in advance on the anniversary of your signup date ("billing date"). Payment by fraudulent means will result in immediate and permanent termination of the account, and possible criminal penalties. Payment may be made by credit card, invoice or other payment means as determined by UpShot in its sole discretion UpShot reserves the right to change the form of payment upon reasonable prior notice to you.
For credit card payments, your UpShot account will be considered delinquent if your credit card company refuses for any reason to pay the amount billed to it and that amount remains unpaid at the beginning of the next billing cycle. The additional services may be suspended, archived or purged from the system if account is delinquent for more than one billing cycle. UpShot may impose a charge to restore archived data from delinquent accounts. For invoices, full payment for invoices issued in any given month must be received by UpShot thirty (30) days after the mailing date of the invoice, or the Service may be terminated. Unpaid invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection.
If you believe UpShot has billed you incorrectly, you must contact UpShot in writing no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to UpShot's Customer Support department.
6. Passwords and Security
You will choose or be given all applicable passwords to use in connection with the Service. You are entirely responsible for maintaining the confidentiality of your passwords and account (including, if applicable, the passwords and accounts of each user accessing the Service by means of an account established by you). Furthermore, you are entirely responsible for any and all activities that occur under your account (including, if applicable, the accounts of each user accessing the Service by means of an account established by you), and you shall ensure that you exit from your account at the end of each session. You shall notify UpShot immediately of any unauthorized use of your account (including, if applicable, the passwords and accounts of each user accessing the Service by means of an account established by you) or any other breach of security. UpShot cannot and will not be liable for any loss or damage arising from your failure to comply with these requirements.
7. Termination
This Service Agreement is a monthly agreement, automatically renewable unless either party requests change or termination. Either party may reduce the level of service or terminate this Service Agreement by notifying the other party in writing at least thirty (30) days in advance of the termination date. UpShot, in its sole discretion, may terminate without prior notice your password, account or use of the Service and remove and discard any Data within the Service if you fail to comply with this Agreement. If you have purchased the Services, you will pay in full for the Service up to and including the last day of the current billing cycle. To cancel the Service or reduce the level of service provided by UpShot, you must contact UpShot in writing. All such requests received within 10 days of the end of the customer billing cycle will incur no additional charges. Requests for cancelled or reduced service received within 10 days of the end of the customer billing cycle may incur one additional month of billing charges.UpShot will remove the Content of an account shortly after cancellation. UpShot may, but is not obligated to, delete archived data, but will not do so until thirty (30) days after the termination of this Agreement. UpShot reserves the right to cease offering the Service to no-charge users having no activity on the Service within the ninety (90) day period prior to such cessation.
Upon expiration or termination, you will immediately cease all use of the Service, including the UpShot software and any documentation. The following provisions of this Service Agreement shall survive termination or expiration of this Agreement: Section 2 (regarding UpShot's ownership), 3, 5 (regarding payment obligations), 7, 8, 9, 10 and 12. Termination is not an exclusive remedy and all other remedies will be available whether or not the license is terminated. Notwithstanding the foregoing, if you are dissatisfied with the Service, the materials available on or through the Service, or with any of UpShot's terms and conditions, your sole and exclusive remedy is to discontinue using the Service.
8. Warranty and Disclaimer
THE SERVICE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND UPSHOT DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. UPSHOT DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR NETWORK, OR LOSS OF DATA THAT RESULTS FROM USE OF THE SERVICE.
9. Limitation of Liability
UPSHOT'S TOTAL LIABILITY WITH RESPECT TO THE SUBJECT MATTER OF THIS SERVICE AGREEMENT (INCLUDING, BUT NOT LIMITED TO, LIABILITY ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), WILL BE LIMITED TO THE FEES PAID BY YOU TO UPSHOT FOR THE SERVICE UNDER THIS SERVICE AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT OF INJURY THAT GAVE RISE TO THE LIABILITY. UPSHOT AND ITS LICENSORS SHALL NOT BE LIABLE IN ANY EVENT FOR LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THE COST OF ANY SUBSTITUTE PROCUREMENT), WHETHER OR NOT FORESEEABLE AND EVEN IF UPSHOT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. U.S. Government Matters
You may not remove or export from the United States or allow the export or re-export of any part of the software or applicable documentation, if any, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and Documentation licensed in this Service Agreement are "commercial items" and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Service Agreement.
11. Third Party Linking
UpShot may, at its election, provide links from the Service to other World Wide Web sites or resources. Because UpShot has no control over such sites and resources, you acknowledge and agree that UpShot is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that UpShot shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
12. Miscellaneous
This Agreement is between UpShot and you, and is not for the benefit of any third party, whether directly or indirectly (including, if applicable, any user accessing the Service by means of an account established by you). The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Service Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Service Agreement will otherwise remain in full force and effect and enforceable. This Service Agreement is not assignable, transferable or sublicensable by you except with UpShot's prior written consent. THIS SERVICE AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF. YOU AND UPSHOT AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS LOCATED IN THE COUNTY OF SANTA CLARA IN THE STATE OF CALIFORNIA. You and UpShot agree that any cause of action arising out of or related to this Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. Both parties agree that this Service Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Service Agreement, and that all modifications must be in writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Service Agreement and you do not have any authority of any kind to bind UpShot in any respect whatsoever. In any action or proceeding to enforce rights under this Service Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Service Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. UpShot's failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by an authorized representative of UpShot in writing. It is the express will of the parties that this agreement and all related documents have been drawn up in English.
close window <javascript:self.close()>