1.1 These Terms and Conditions (the “Terms”) govern your use of and access to www.upstock.io and its sub-domains and affiliated sites, as well as Upstock’s pages and accounts on Facebook®, LinkedIn®, Twitter®, Google+®, Instagram®, YouTube® (the “Sites”). The Sites are the property of Upstock and/or its affiliates and protected by international trademark and copyright laws.
1.2 Throughout the Sites, the terms “we”, “us” and “our” refer to Upstock.
1.3 By visiting our Sites and/ or purchasing, subscribing, using or testing something from us, you (the “User”) engage in our “Services” and agree to be bound by the following Terms including those additional Terms referenced herein and/or available by hyperlink. These Terms apply to all users of the Sites, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.
1.4 Please read these Terms carefully before accessing any or all of our Sites or using our Services. Your continued use of any or all of the Sites constitutes your agreement to be bound by these Terms. If you do not agree to be bound by the Terms promptly exit the Sites.
1.5 You can review the most current version of the Terms at any time on this page. We reserve the right to update, change or replace any part of these Terms by posting updates and/or changes to our Sites. It is your responsibility to check this page periodically for changes. Your continued use of or access to the Sites following the posting of any changes constitutes acceptance of those changes.
2. Online Terms
2.1 By agreeing to these Terms, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use the Sites.
2.2 You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Sites, violate any laws in your jurisdiction (including but not limited to copyright laws). You are also required to comply with all laws and regulations applicable to your activities on, or related to, our Sites or Services.
2.3 You must not transmit any worms or viruses or any code of a destructive nature.
3. General Conditions
3.1 We reserve the right to refuse the Services to anyone for any reason at any time.
3.2 You understand that your content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
3.3 You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Services, use of the Services, or access to the Services or any contact on the Sites through which the Service is provided, without express written permission by us.
3.4 The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.
4. Accuracy, Completeness and Timeliness of Information
4.1 We are not responsible if information made available on the Sites is not accurate, complete or current. The material on the Sites is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on the Sites is at your own risk.
4.2 The Sites may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of the Sites at any time. You agree that it is your responsibility to monitor changes to our Sites and Services.
5. Modifications to the Services
5.1 Prices for the Services are subject to change without notice.
5.2 We reserve the right at any time to modify or discontinue the Services (or any part or content thereof) without notice at any time.
5.3 We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Services.
6. The Services
6.1 We reserve the right, but are not obligated, to limit the sales of the Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any of the Services that we offer.
6.2 We do not warrant that the quality of the Services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Services will be corrected.
7. Third Party Links
7.1 Certain content, products and services available via the Services may include materials from third-parties.
7.2 Third-party links on the Sites may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.
7.3 We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
9. Confidential Information
The term “Confidential Information” shall be given its broadest possible interpretation and shall mean any information, including trade secrets, know-hows, intellectual property, proprietary company information including confidential business plans, files, records, computer printouts, documents, objects, drawings, specifications, patterns, lists, reports, correspondence, programming code, financial data, formulas, compilations, programs, devices, methods, techniques, or processes and similar items relating to the business of UpStock that are valuable, special, and unique assets of UpStock, access to and knowledge of which are provided to you in connection with the Services.
You acknowledge that from time to time you may be provided with UpStock’s Confidential Information and you further acknowledge your obligation to keep this knowledge confidential and solely for your use in connection with the Services. Without limiting the scope of such confidentiality obligations, you agree that you shall not, at any time or in any manner, directly or indirectly, use for your own benefit or the benefit of any other person or entity, or otherwise divulge, disclose, or communicate to any person or entity any information concerning any Confidential Information without the prior express written consent of UpStock.
9.3 Liability For Disclosure Of Confidential Information
You acknowledge that each of the restrictions contained in these Terms relating to the non-disclosure of Confidential Information is reasonable and necessary in order to protect legitimate interests of UpStock and that any violation thereof would cause irreparable injury to UpStock. You agree that in the event of any violation thereof, UpStock shall be authorized and entitled to obtain, from any court of competent jurisdiction, preliminary and permanent injunctive relief as well as an equitable accounting of all profits or benefits arising out of such violation and any damages for breach of these Terms that may be applicable. The aforesaid rights and remedies shall be independent, severable and cumulative and shall be in addition to any other rights or remedies to which UpStock may be entitled.
10. Confidentiality and Privacy Under the GDPR
11. Errors, Inaccuracies and Omissions
11.1 Occasionally there may be information on our Sites or in the Services that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information if any information in the Services or on any related Sites is inaccurate or requires updating at any time without prior notice.
12. Prohibited Uses
In addition to other prohibitions as set forth in these Terms, you are prohibited from using the Sites or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Services or of any related Sites, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Services or any related Site, other websites, or the Internet. We reserve the right to terminate your use of the Services or any related Sites for violating any of the prohibited uses.
13. Trademark, Copyright and Intellectual Property
All of the content that appears on the Sites, including all designs, illustrations, icons, photographs, video clips, and written materials, as well as the compilation of the website, Services, and other materials, are the exclusive property of UpStock or our licensors, and are protected by the United States and international copyright laws. All trademarks, service marks, and trade names that appear on the Sites are the property of UpStock or our licensors.
You may not display, reproduce, or otherwise use the content or materials on the Sites without first receiving written consent from us. Any unauthorized use of any content or materials on the Sites is strictly prohibited and violates copyright, trademark, and/or other intellectual property laws, and/or the laws of privacy, publicity, and/or communications regulations and statutes.
Please email firstname.lastname@example.org if you would like to request authorization to use the materials or content on our Sites or Services.
14. DMCA Policy
We respect the intellectual property of others and ask that users of our Sites do the same. If you believe that one of UpStock’s users is, through the use of our Sites, unlawfully infringing the copyrights in a work, and wish to have the allegedly infringing material removed, the information in the form of a written notification must be provided to the Designated Copyright Agent. In accordance with the Digital Millennium Copyright Act of (DMCA) 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, UpStock will respond expeditiously to claims of copyright infringement committed using the UpStock Service and/or UpStock Sites if such claims are reported to UpStock’s Designated Copyright Agent at email@example.com.
Please take note that any misrepresentation of material facts (falsities) in a written notification automatically subjects the complaining party making the misrepresentation to liability for any damages, costs and attorney’s fees incurred by UpStock in connection with the written notification and allegation of copyright infringement.
15. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
These disclaimers will apply to the fullest extent permitted by law.
15.1 We do not guarantee, represent or warrant that your use of the Sites or Services will be uninterrupted, timely, secure or error-free.
15.2 We do not warrant that the results that may be obtained from the use of the Sites or Services will be accurate or reliable.
15.3 You expressly agree that your use of, or inability to use, the Sites or Services is at your sole risk. The Services and all products and services delivered to you through the Sites are (except as expressly stated by us) provided ‘as is’ and ‘as available’ for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement of proprietary rights.
15.4 In no case shall UpStock, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the Services or any products procured using the Services, or for any other claim related in any way to your use of the Services or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the Services or any content (or product) posted, transmitted, or otherwise made available via the Sites, even if advised of their possibility.
15.5 We provide data duplication, data integration, data import, data migration, data conversion, data matching, and other services that involve extensive changes to large amounts of your data, and you understand that some risk of significant data corruption does exist during these types of processes. To mitigate this risk, you agree to have made “Backups” (extra, easily accessible and restorable copies) of all data prior to the utilization of our Services and that in the event of a data problem, your restoral of those backups, at your expense, is your sole recourse for such an event, and is the planned approach of data recovery.
15.6 Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our total liability to you for any loss, cost, claim or damages of any kind arising out of or related to this Terms shall be limited to the amount of the fees paid by you to us.
Some jurisdictions do not allow disclaimer of implied warranties. In such jurisdictions, some of the foregoing disclaimers as to implied warranties may not apply.
16. We Are Not Lawyers
We are not lawyers or a law firm and we do not provide legal, business or tax advice. The content included in the Sites is provided “as is” and neither UpStock nor any of the UpStock’s attorneys make any warranty (express or implied), representation or guarantee with respect thereto. The Sites and our services are not a substitute for for the advice or services of a lawyer. You understand and agree that neither our software, nor any content provided by UpStock is intended to be legal advice, and you understand that for any legal, business or tax advice you should consult a qualified attorney. Use of our Sites and services is not intended to create an attorney-client relationship between you and UpStock. Further, UpStock is not a lawyer referral service. Any websites, services or other information provided on the Sites is for personal use only.
The law changes frequently so despite our efforts to provide current information, we cannot guarantee that all the information on our Sites is completely current at all times. In addition, the laws and the interpretations of such laws may vary by jurisdiction, so the information on our Sites will not apply in all circumstances. Therefore, you should consult a licensed attorney in your area if you need specific advice or if your situation is too complex for our generic tools.
You agree to indemnify, defend and hold harmless UpStock and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms or the documents they incorporate by reference, or your violation of any law or the rights of a third-party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you agree to cooperate with our defense of these claims.
18.1 UpStock and you (collectively the “parties”) mutually agree that if a dispute, controversy or claim (collectively a “Dispute”) arises from or relates directly or indirectly to the subject matter of these Terms, and if the Dispute cannot be settled within ten (10) days through direct discussions between the parties, the parties shall first endeavor to resolve the Dispute by immediately participating in a mediation administered by a mediator selected by mutual agreement of the parties, before resorting to arbitration. Thereafter, if any Disputes remain after the mediation, such Disputes shall be promptly resolved by binding arbitration. The parties acknowledge that this agreement to arbitrate means that the parties are relinquishing rights to either a jury trial or court trial for the resolution of any claims that the parties may have against the other. The party desiring to initiate arbitration can do so by sending written notice of an intention to arbitrate by registered or certified mail to the other party. The written notice shall contain a description of the nature of all claims or controversies asserted and the facts upon which such claims are based. All claims shall be submitted to a single neutral arbitrator. The arbitration shall take place in the governing law where UpStock is formed, unless otherwise mutually agreed. The arbitrator shall be mutually agreed upon by the parties. If the parties cannot agree upon an arbitrator, the selection process shall be governed by the arbitration rules and procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”). These rules and procedures may be found on JAMS website at http://www.jamsadr.com/ rules-comprehensive-arbitration. Regardless of the arbitrator chosen, the arbitration proceedings shall be governed by the then current JAMS procedural rules, except that if a contrary rule exists.
18.2 The arbitrator may, in his or her discretion, award attorneys’ fees and costs, in whole or part, to the prevailing party in a manner consistent with applicable law. The arbitrator may grant any remedy or relief available under law, without limitation, that the arbitrator determines to be just and equitable based on the evidence introduced at the hearing and any logical and reasonable inferences therefrom. The decision shall be made in writing and contain a concise statement of the reasons in support of the decision. The decision shall be signed by the arbitrator and mailed to each party. The decision may be judicially enforced (confirmed, corrected or vacated). The decision is final and binding and there is no direct appeal from the decision on the grounds of error in the application of law.
18.3 This agreement to arbitrate and the arbitration procedure is intended to be the exclusive method of resolving all claims or controversies as described above between the parties. THE PARTIES HEREBY WAIVE ANY RIGHTS TO TRIAL BY JURY IN REGARD TO ARBITRABLE CLAIMS, INCLUDING WITHOUT LIMITATION ANY RIGHT TO TRIAL BY JURY AS TO THE MAKING, EXISTENCE, VALIDITY, OR ENFORCEABILITY OF THIS AGREEMENT TO ARBITRATE.
In the event that any provision of these Terms is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms, such determination shall not affect the validity and enforceability of any other remaining provisions.
20.1 The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.
20.2 These Terms are effective unless and until terminated by either you or us. You may terminate these Terms at any time by notifying us that you no longer wish to use the Services, or when you cease using our Sites.
20.3 If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to the Services (or any part thereof).
21. Entire Agreement
21.1 The failure of us to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
21.2 These Terms and any policies or operating rules posted by us on the Sites or in respect to the Services constitutes the entire agreement and understanding between you and us and govern your use of the Sites, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms).
21.3 Any ambiguities in the interpretation of these Terms shall not be construed against the drafting party.
22. Governing Law
These Terms shall be governed by and construed in accordance with the laws of the State of Delaware, United States of America, without regard to conflict or choice of law principles.
23. Changes to Terms and Conditions
23.1 You can review the most current version of the Terms at any time on this page.
23.2 We reserve the right, at our sole discretion, to update, change or replace any part of these Terms by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our Sites or the Services following the posting of any changes to these Terms constitutes acceptance of those changes.
24. Electronic Communications and Electronic Contracting
24.1 You consent to receive communications from us electronically, both by email or posting on the Sites, and you agree that this satisfies any legal requirement that such communications be in writing.
24.2 You acknowledge that any agreement or transaction entered into electronically via the Sites or Services will constitute your agreement and intent to be bound by and to pay for such transactions and agreements.
If we fail to enforce or exercise our rights under any provision of these Terms it will not constitute a waiver of that provision.
26. Contact Us
UpStock welcomes your questions or comments regarding the Terms at firstname.lastname@example.org
Effective as of January 29, 2019