- Acceptance of Terms.
- If you are entering into this TOS on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this TOS. In that case, the terms “you” or “your” shall also refer to such entity. If you do not have such authority, or if you do not agree with this TOS, you may not use the Service. You acknowledge that this TOS is a contract between you and Upthere, even though it is electronic and is not physically signed by you and Upthere, and it governs your use of the Service.
- As our business evolves, Upthere may change this TOS. If we make a material change to the TOS, we will provide you with reasonable notice prior to the changes either by contacting you using the contact information you provide us or by posting a notice on the Site. You can review the most current version of the TOS at any time by visiting this page. The revised terms and conditions will become effective on the date set forth in our notice, and if you use the Service after that date, your use will constitute acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to you, your only remedy is to request we terminate your account through email@example.com and stop using the Services.
- As part of the registration process, you will identify a user name and password for your account. You are responsible for maintaining the confidentiality of your user name, password, and account and for all activities that occur under your login or account.
- By accessing or using the Services, you affirm that you are at least 18 years of age (or have reached the age of majority if that is not 18 years of age where you live). You represent that you are fully able and competent to enter into and comply with the terms and conditions in this TOS. The Service is not directed to children under 13, so if you are under 13 years of age, you are not permitted to access or use the Services. If we become aware that you are using the Service even though you are under 13, we will terminate your account.
- Description of Service. The “Service(s)” means (a) Upthere’s data computation and storage service, as well as the website https://upthere.com (the “Site”), and (b) all software (including the Software, as defined below), applications, data, text, images, and other content made available by or on behalf of Upthere through any of the foregoing, all pursuant to this TOS. The “Service” does not include Your Data (as defined below) or any software application or service that is provided by you or a third party, which you use in connection with the Service (each a “Non-Upthere Product”). Any modifications and new features added to the Service are also subject to this TOS. Upthere reserves the right to modify or discontinue the Service or any feature or functionality thereof at any time without notice to you. All rights, title and interest in and to the Service and its components (including all intellectual property rights) will remain with and belong exclusively to Upthere.
- Access and Use of the Service.
- You may access and use the Service only for lawful, authorized purposes and you shall not misuse or abuse the Service in any manner (as determined by Upthere in its sole and absolute discretion). See Section 6 for specific provisions and examples outlining prohibited uses of the Service. You shall comply with any codes of conduct, policies, storage limitations, or other notices Upthere provides you or publishes in connection with the Service from time to time, but if any of those policies materially change the TOS, we will provide you with reasonable notice as provided in Section 1.C. above. You shall promptly notify Upthere at firstname.lastname@example.org if you learn of a security breach related to the Service.
- Any software that may be made available by or on behalf of Upthere in connection with the Service, including Upthere’s web, mobile and desktop applications, (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this TOS, Upthere only grants you a personal, non-sublicensable and non-exclusive license to use the object code of any Software solely in connection with the Service. Any rights not expressly granted herein are reserved.
- You hereby agree to be bound by these terms, and acknowledge that violation of Upthere’s TOS is grounds for immediate termination of Your Account without notice to you.
- Your Data Rights and Related Responsibilities.
- "Your Data" means any data and content you upload, post, transmit or otherwise made available via the Services (which may include data you elect to import from Non-Upthere Products you use). "Your Data" includes files you upload, comments you make on files, profile information and anything else you enter or upload into the Service. Upthere will make commercially reasonable efforts to ensure that all facilities used to store and process Your Data meet a high standard for security.
- In order for us to provide the Service to you, we require that you grant us certain rights with respect to Your Data. For example, we need to be able to transmit, store and copy Your Data in order to display it to you, to index it so you are able to search it, to make backups to prevent data loss, and so on. Your acceptance of this TOS gives us the permission to do so and grants us any such rights necessary to provide the Service to you, only for the purpose of providing the Service (and for no other purpose). This permission includes allowing us to use third-party service providers in the operation and administration of the Service and the rights granted to us are extended to these third parties to the degree necessary in order for the Service to be provided.
- If you send us any feedback or suggestions regarding the Service, you grant Upthere an unlimited, irrevocable, perpetual, free license to use any such feedback or suggestions for any purpose without any obligation to you.
- You are solely responsible for your conduct, the content of Your Data, and all communications with others while using the Services. We may choose to review Your Data for compliance with our policies and guidelines, but you acknowledge that Upthere has no obligation to monitor any information on the Services.
- Upthere may remove or disable any of Your Data, and/or terminate your account, at any time if we believe, in our sole discretion, that you are in violation of this TOS.
- We are not responsible for the accuracy, appropriateness, or legality of Your Data or any other data shared with you or that you are otherwise able to access using the Services. The Services provide features that allow you to share Your Data and other materials with others or to make it public. Please consider carefully what you allow to be shared or made public.
- Free trial, Paid accounts, and Free accounts. Currently, all new accounts receive a free 3-month trial of the Service. From time to time, we also offer various other free trial programs of various lengths.
During your free trial, if your trial includes unlimited storage, then, subject to the terms hereof, you will have full access to all the functionality of the entire Service within no fixed storage limit. If your free trial includes a storage limit and you reach the storage limit, you will no longer be able to upload new content, copy shared content, or re-share content shared with you. To reactivate your account to full functionality, you must convert to a paid account or delete some content from your account to return within the limits.
At the end of your free trial, you have the option to continue as a paid account with a monthly fee. Our current fee plans are available here. If you choose not to continue as a Paid account, you will automatically become a Free account. As a free account holder, you will lose access to your uploaded content. We reserve the right to delete your uploaded content, in whole or in part, at any time beginning 30 days from the date you become a free account. However, as a free account holder, you will retain your free account for as long as you want and can receive shared content, comment in Loops, add people to Loops, and remove people from Loops. You must have a Paid account to access previously uploaded content, upload new content, copy any shared content, or re-share content shared with you.
- Representations and Warranties. You represent and warrant to Upthere that (i) you have fuller and authority to enter into this TOS; (ii) you own all Your Data or have obtained all permissions, releases, rights or licenses required to engage in your activities (and allow Upthere to perform its obligations) in connection with the Services without obtaining any further releases or consents; (iii) Your Data and your other activities in connection with the Service, and Upthere’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right; (iv) Your Data does not contain any matter that is unlawful; and (v) none of Your Data that you share or otherwise make available to others through your use of the Service is defamatory, obscene, threatening, abusive, tortious, offensive or harassing. You also agree not to:
- share, post, transmit, or otherwise make available to others any of Your Data that is threatening, abusive, harassing, tortious, defamatory, obscene, libelous, invasive of another's privacy, hate speech, or racially or ethnically objectionable;
- use the Service to harm minors in any way;
- impersonate any person or entity, including, but not limited to, an Upthere employee, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- manipulate identifiers in order to disguise the origin of any of Your Data;
- share, post, transmit, or otherwise make available to others any of Your Data that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- upload, post, transmit or otherwise make available any of Your Data in a manner that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- sublicense, resell, rent, lease, transfer or assign (except as permitted in Section 16) the Service or its use, or offer the Service on a time share basis to any third party;
- use the Service to share, post, transmit, or otherwise make available to others any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
- use the Service to upload, post, transmit, or otherwise make available any software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware;
- act in a manner that negatively affects other users' ability to use the Service;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service, including using any device or software;
- modify, adapt, or hack the Service, including by using any Upthere APIs except through the apps and web pages that we provide, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks;
- intentionally or unintentionally violate any applicable local, state, national or international law in connection with your use of the Service, including, but not limited to, any data privacy, or export control laws, any regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange, or the NASDAQ, and any regulations having the force of law;
- use the Service to provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
- use the Service to "stalk" or otherwise harass another;
- collect or store personal data about other users in connection with any of the prohibited conduct and activities set forth above; and/or
- misuse or abuse the Service in any manner (as determined by Upthere in its sole and absolute discretion), including, but not limited to, storing an unreasonable quantity of files or amount of data during any free trial period, putting unreasonable load on any service running in any Upthere datacenter, posting an unreasonable amount of comments or comments of unreasonable length, and/or manipulating or abusing Upthere’s signup process to receive more than one free trial period (in each and every of the foregoing cases, as determined by Upthere in its sole and absolute discretion).
- You acknowledge, consent and agree that Upthere may access, preserve and disclose your account information and Your Data if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the TOS; (iii) respond to claims that any of Your Data violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of Upthere, its users and the public. Upthere’s policies for responding to user data requests from law enforcement entities and other third parties are described HERE. To foster greater transparency, we have published a TRANSPARENCY REPORT, which is our summary of government and law enforcement requests for user data and content removal from Upthere.
- Term; Termination.
- This TOS will continue in full effect, as amended, unless and until your account or this TOS is terminated as described herein.
- You may terminate your account through an email to goodbye@UPTHERE.COM. Termination of an account irrevocably deletes your profile and content, including content that you have shared with others or made public. If other users have copied your shared content into their own accounts or out of our Service, those copies will not be deleted. Your data may remain on our Service for a period of time after we process your termination request and may remain in our backups beyond that time.
- We reserve the right to modify or terminate the Service, or any portion thereof, at any time, for any reason, with or without notice. Upon any termination of the Service, we have no obligation to maintain or provide Your Data; however, we intend to take commercially reasonable efforts to give you reasonable advance notice of such termination and to provide you with the capability to download Your Data for a reasonable period of time after any such termination.
- If your account is terminated for any reason, we have no obligation to refund any amounts you have paid us.
- Disclaimer of Warranties.
- The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond our reasonable control, but Upthere shall use commercially reasonable efforts to provide advance notice of any material scheduled service disruption. Upthere will have no liability to you for any unauthorized access or use of any of Your Data, or any corruption, deletion, destruction or loss of any of Your Data.
- THE SERVICE AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND UPTHERE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT UPTHERE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM UPTHERE OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
- Limitation of Liability.
- UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL UPTHERE BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, OR (B) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
- Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE JURISDICTIONS, UPTHERE’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
- NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT We respect the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances and at our discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide Upthere's Copyright Agent the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the site;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Upthere’s Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
c/o Upthere, Inc.
2221 Broadway Street
Redwood City, CA 94063
By fax: 650-246-0976
By email: COPYRIGHT@UPTHERE.COM
- Indemnification. You shall defend, indemnify, and hold Upthere harmless from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Your Data, or your use or misuse of the Service. Upthere shall provide notice to you of any such claim, suit or demand. Upthere reserves the right to conduct the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Upthere’s defense of such matters.
- Enforceability. If any provision of this TOS is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS will otherwise remain in full force and effect and enforceable.
- Integration, Modification, and Authority. This TOS 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 TOS. All waivers and modifications to this TOS must be in a writing signed by both parties that expressly by its terms modifies or waives a provision of this TOS, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this TOS and you do not have any authority of any kind to bind Upthere in any respect whatsoever.
- Assignment. You may not assign this TOS without the prior written consent of Upthere, except, if you are a company or other legal entity, you may assign this TOS in connection with a merger, re-organization or acquisition of all or a substantial portion of your assets by another company, but only upon 30-days prior notice to Upthere. Upthere may assign or transfer this TOS, in whole or in part, without restriction.
- Notices. Except as otherwise set forth herein, all notices under this TOS 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 email; 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.
- Choice of Law and Forum; Waiver of Jury Trial. The TOS and the relationship between the parties shall be governed by the laws of the State of California without regard to its conflict of law. Subject to the terms of this Section, all controversies, claims and disputes arising in connection with the TOS shall be settled by mutual consultation between the parties in good faith as promptly as possible, but failing an amicable settlement shall resolved by the state and federal courts located in San Mateo County, California, U.S.A. You hereby: (i) submits to the jurisdiction of any federal and/or of any state court located in Los Angeles County, California, U.S.A., for the purposes of all legal proceedings arising out of or relating to the TOS or any other dispute between You and Company; and (ii) irrevocably waive, to the fullest extent permitted by law, any objection which You may now or hereafter have to the jurisdiction or venue of any such proceeding which is brought in such a court. Notwithstanding anything herein to the contrary, nothing herein shall limit the right of Company to bring proceedings against You in the courts of any other jurisdiction. YOU EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LITIGATION BETWEEN THE PARTIES.
- Waiver and Severability of Terms. The failure of Upthere to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision.