I. Introduction and Eligibility
This agreement is a legally binding contract. It may change as our business changes, and you agree you will review it and any updates regularly.
Your continued use of the Service means you accept any changes.
Binding Agreement. These Terms constitute a binding agreement between you and Upsider, Inc. and its affiliates and subsidiaries (“Upsider,” “we,” “us”). “You” and “users” shall mean all visitors to the Service. You accept these Terms each time you access the Service. If you do not accept these Terms, you must not use the Service.If you are under 18 years of age, you're present and agree that you possess the legal consent of your parent or guardian to access and use the Service.
Revisions to Terms. We may revise these Terms at any time by posting an updated version. You should visit this page periodically to review the most current Terms, because you are bound by them. Your continued use of the Service after a change to these Terms constitutes your binding acceptance of these Terms.
The terms “post” and “posting”as used in these Terms shall mean the act of submitting, uploading, publishing,displaying, or similar action on the Service.
II. The Service
The “Service” means any website, including www.upsider.co and Internet service under Upsider’s control, whether partial or otherwise, in connection with providing its services. The Service provides an online career management platform that leverages data to create visibility, efficiency, and long-term success for salespeople looking to upgrade their careers, and the companies who want to hire them.
You agree that you are submitting information to the Service in compliance with any employer and confidentiality agreements.
When you submit information to the Service, you represent and warrant that you have the right to provide such information and that you are in compliance with all employer and confidentiality agreements.
Upsider will accept users solely at its discretion and in compliance with applicable law.
Acceptance for Access to the Service. Upsider will review applications and offer access to the Service to certain applicants. The decision to offer access to an applicant is entirely within the discretion of Upsider as permitted by applicable law.
You may not use the Service to spam other users, and you must have the permission of others before you refer them to us.
No SPAM. You agree that your use of the Service shall not include sending unsolicited marketing messages or broadcasts (i.e., spam) through the Service. We may utilize any means possible to block spammers and abusers from using the Service. If you believe spam originated from theService, please email us immediately support @upsider.co.
Referrals to Join the Service. You represent and warrant that when you provide contact information for any referrals to join the Service, you have permission to provide such information to us and that we and you have permission to contact them.
You assume full risk and responsibility for your use of information obtained through the Service.
For Educational and Informational Purposes Only. The Service provides information, not professional advice. The Service may provide helpful career-related information, but it is not intended to substitute for professional advice or your judgment. You agree that we provide a platform and may monitor, but are not required to monitor, information and content posted by users. We do not verify the accuracy of information or content posted by users. You acknowledge that all of the information and content on the Service is provided “as is” for educational and informational purposes only. You assume full risk and responsibility for the use of or reliance on information you obtain from or through the Service.
III. Eligibility to Use the Service
No part of the Service is directed to persons under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS The Service AT ANY TIME OR IN ANY MANNER.
Agent of a Company, Entity, or Organization. If you are using the Service on behalf of a company, entity, or organization (collectively“Organization”), then you represent and warrant that you:
1. Are an authorized representative of that Organization;
2. Have the authority to bind that Organization to these Terms;
3. And agree to be bound by these Terms on behalf of that Organization.
IV. Your Account
You are responsible for your log-in credentials and for keeping your information accurate.
You are responsible for any activity resulting from the use of your log-in credentials on the Service.
You represent and warrant that the information you provide to Upsider upon the licensing of the Service and at all other times will be true, accurate, current, and complete.
Your Log-In Credentials. To use the Service, you will have log-in information, including a username and password. Your account is personal to you, and you may not share your account information with, or allow access to your account by, any third party. As you will be responsible for all activity that occurs under your access credentials, you agree to use reasonable efforts to prevent unauthorized access to or use ofthe Service and to preserve the confidentiality of your username and password, and any device that you use to access the Service.
You agree to notify us immediately of any breach in secrecy of your log-in information. If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify Upsider by e-mail to email@example.com. You will be solely responsible for the losses incurred by Upsider and others due to any unauthorized use of your account.
Upsider may communicate with you by email or posting notice on the Service.
You may request that we provide notice of security breaches in writing.
You agree to receive email from us at the email address you provided to us for customer service and marketing purposes. You may opt out of marketing email messages by using the unsubscribe link in the email;however you may not opt out of customer service-related email. We will respond and communicate with you through live chat on the Service if you initiate such conversations. If you call us by telephone, we may record the telephone call for quality and training purposes.
Electronic Notices. By using the Service or providing Personal Information to us, you agree that we may communicate with you electronically regarding security, privacy, and administrative issues relating to your use of the Service. If we learn of a security system’s breach, we may attempt to notify you electronically by posting a notice on the Service or sending an email to you. You may have a legal right to receive this notice in writing. To receive free written notice of a security breach (or to withdraw your consent from receiving electronic notice), please write to us at firstname.lastname@example.org.
VI. Upsider's Content Ownership and Use
Upsider owns or has rights to all of the content we make available through the Service, but you may use it as you use the Service. You may not use our logo without our written permission.
The contents of the Service include: designs, text, graphics,images, video, information, logos, button icons, software, audio files, computer code, and other Upsider content regardless of form (i.e., whether video, paper, electronic or otherwise), whether tangible or intangible, or whether existing now or in the future (collectively, “Upsider Content”). All Upsider Content and the compilation (meaning the collection, arrangement, and assembly) of all Upsider Content are the property of Upsider or its licensors and are protected under copyright, trademark, and other laws.
License to You. The Service is licensed, not sold, to you.Subject to your complete and ongoing compliance with these Terms, we authorize you, subject to these Terms, to access and use the Service and the Upsider Content solely for the personal useof the Service, at our discretion. Any other use is expressly prohibited. This license is non-transferable and revocable at any time without notice and with or without cause. Unauthorized use ofthe Upsider Content may violate copyright, trademark, and applicable communications regulations and statutes and is strictly prohibited.
Upsider Marks. “Upsider,” the Upsider logo, and other Upsider logos and product and service names are or may be trademarks of Upsider (the “Upsider Marks”). Without our prior written permission, and except as solely enabled by any link as provided by us, you agree not to display or use the Upsider Marks in any manner. You must preserve all copyright, trademarks, service marks, and other proprietary notices contained in the original Upsider Content on any copy you make of the Upsider Content. Upsider retains all right, title and interest in and to all Upsider Content.
VII. User Content and Our License to Use It
You, or the people who allow you to use their content, own all of the content you post using the Service. However, we may use it for any purpose, including in our marketing materials. We may also modify your content to make it work better. It is important that you have permission to use other people’s content or they may be able to sue you for violating their legal rights.
Upsider Claims No Ownership. The Service may provide you with the ability to create, post, or share content (“Your UserContent”). Upsider claims no ownership or control over Your User Content. You or a third-party licensor, as appropriate, retain all copyright, patent, and trademark rights to any of the content you post on or through the Service. You are responsible for protecting those rights.
Waiver. By posting Your User Content to or through the Service you waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with Your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support,maintain or permit any action based on any moral rights that you may have in or with respect to any of Your User Content you post to or through the Service, during the term of these Terms. You expressly release Upsider and Upsider’s agents, partners, subsidiaries, affiliates, licenses, successors, and assigns from any and all claims, demands, liabilities, or causes of action, whether now known or unknown, for defamation, copyright infringement, violation of moral rights, and invasion of the rights to privacy, publicity, or personality or any similar matter, or based upon or relating to the posting of Your User Content as authorized in these Terms.
You Acquire No Ownership of Others’ Content. You understand and agree that you will not obtain, as a result of your use of the Service, any right, title, or interest in or to such content delivered via the Service or in any intellectual property rights(including, without limitation, any copyrights, patents, trademarks, tradesecrets, or other rights) in the content.
You Must Have Rights to the Content You Post. You represent and warrant that: (I) you own the content posted by you on or through the Service or otherwise have the right to grant the license set forth in these Terms, (II) the posting and use of Your User Content on orthrough the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, and (III) the posting of Your User Content on the Service doesnot result in a breach of contract between you and a third party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of content you post on or through the Service. You also acknowledge and agree that Your User Content is non-confidential and non-proprietary.
The Service contains content from users and other Upsider licensors. Except as provided within these Terms, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any content appearing on or through the Service.
VIII. Copyright Policy
Tell us if you think a user has violated your copyright using the Service, or if you think someone
incorrectly reported that you violated his or her copyright.
The Digital Millennium Copyright Act of 1998 (the “DMCA”)provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials posted on the Service infringe your copyright, you(or your agent) may send us a “Notification of Claimed Infringement” requesting that the material be removed, or access to it blocked. The notice must include the following information:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of the works that have been allegedly infringed;
2. Identification of the copyrighted work alleged to have been infringed (or if multiple copyrighted works located on the Service are covered by a single notification, a representative list of such works);
3. Identification of the specific material alleged to be infringing or the subject of infringing activity, and information reasonably sufficient to allow us to locate the material on the Service;
4. Your name, address, telephone number, and email address (if available);
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
We may terminate the accounts and/or prevent content posting of users who repeatedly infringe copyright holders’ copyrights. A “repeat infringer” is a user who, on more than two occasions, has been determined by final order of a United States court to have infringed the copyright rights ofa third party by providing infringing content through the Service.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice.
Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details. Notices and counter-notices with respect to the Service should be sent to email@example.com. Consult your legal advisor and see 17 U.S.C. § 512 before filing a notice or counter-notice as there are penalties for false claims under the DMCA.
IX. Suggestions and Submissions.
We appreciate your comments, but if you send us creative ideas, we may use them without compensating you.
We appreciate hearing from our users and welcome your comments regarding the Service. Please be advised, however, that if you sendus creative ideas, suggestions, inventions, or materials (“creative ideas”), we shall:
1. Own, exclusively, all now known or later discovered rights to the creative ideas;
2. Not be subject to any obligation of confidentiality and shall not be liable for any use or disclosure of any creative ideas;
3. Be entitled to unrestricted use of the creative ideas for any purpose whatsoever, commercial or otherwise,without compensation to you or any other person.
X. User Content Disclaimers, Limitations, and Prohibitions
You are responsible for your actions when using and relying on the Service or content available on the Service.
We do not represent or guarantee the truthfulness, accuracy, or reliability of content, posted by users (“User Content”). You accept that any reliance on material posted by other users or third-party service providers will be at your own risk. By using the Service you accept the risk that you might be exposed to content that is objectionable or otherwise inappropriate.
You are solely responsible for Your User Content on the Service. Upsider does not endorse any, nor is it responsible for, User Content on the Service. You assume all risks associated with Your User Content, including anyone’s reliance on its quality, accuracy, or reliability. You may expose yourself to liability if, for example, Your User Content contains material that is false, intentionally misleading, or defamatory; violates third-party rights; or contains material that is unlawful or advocates the violation of any law or regulation.
Do not engage in activities related to the Service that are harmful or illegal.
You agree to use the Service only for its intended purpose and in an authorized manner. You must use the Service in compliance with all privacy, data protection, intellectual property, and other applicable laws. The following uses of the Service are prohibited. You may not:
1. Attempt to interfere with, harm, reverse engineer, steal from, or gain unauthorized access to the Service, user accounts, or the technology and equipment supporting the Service;
2. Frame or link to the Service without permission;
3. Use data mining, robots, or other data gathering devices on or through the Service, unless specifically allowed by these Terms;
4. Post incomplete, false, or misleading information, impersonate another person, or misrepresent your affiliation with an individual or entity;
5. Disclose personal information about another individual without his/her consent or harass, abuse, or post objectionable material;
6. Sell, transfer, sublicense,or assign any of your rights to use the Service to a third party without our express written consent;
7. Post advertising or marketing links or content, except as specifically allowed by these Terms;
8. Use or access the Service if you are (or are engaged by) a competitor of Upsider, except with our prior written consent, which we may withhold in our sole discretion and without explanation;
9. Use or access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes;
10. Use the Service in an illegal way or to commit an illegal act in relation to the Service or that otherwise results in fines, penalties, and other liability to Upsider or others;
11. Access the Service from a jurisdiction where it is illegal or unauthorized.
XI. Consequences of Violating These Terms
If you do not act acceptably, we may prohibit your use of the Service.
Without limiting any other remedies, we reserve the right to suspend or terminate your account and prevent access to the Service for any reason, at our discretion. We reserve the right to refuse to provide the Service to you in the future.
Upsider may review and remove any User Content at any time for any reason, including for activity which, in its sole judgment: violates these Terms; violates applicable laws, rules, or regulations; is abusive, disruptive, offensive or illegal; or violates the rights of, or harms or threatens the safety of, users of the Service.
You are responsible for any claims, fees, fines, penalties, and other liability incurred by us or others caused by or arising out of your breach of these Terms and your use of the Service.
XII. Uspider's Liability
We are not liable for the actions of users when they use the Service. We may also change the Service at any time and are not liable for how this may affect you. We do not guarantee the quality or accuracy of any content you view using the Service or other websites.
Changes to the Service. We may change, suspend, or discontinue any aspect of the Service at any time, including hours of operation or availability of the Service or any feature, without notice or liability.
User Disputes.We are not responsible for any disputes or disagreements between you and any third party you interact with using the Service. You assume all risk associated with dealing with third parties. You agree to resolve disputes directly with the other party. You release Upsider of all claims, demands, and damages in disputes among users of the Service. You also agree not to involve us in such disputes. Use caution and common sense when using the Service.
Content Accuracy. We make no representations about accuracy, reliability, completeness, or timeliness of any information or content on theService. Similarly, we make no representations about accuracy, reliability, completeness, or timeliness of any data from a third-party service provider or the quality or nature of third-party products or services obtained through the Service. Use the Service at your own risk.
Third-Party Websites and Applications. The Service may include links to third party websites and applications. You are responsible for evaluating whether you want to access or use them. We are not responsible for and do not endorse any features, content, advertising, products, or other materials on other websites or applications. You assume all risk and we disclaim all liability arising from your use of them.
Third-Party Functionality. The Service may allow you to use third-party content and functionality. You use such content or functionality subject to such third parties’ terms and conditions.We make no promises and disclaim all liability of specific results from the use of the Service.
Released Parties Defined. “Released Parties” include Upsider and its affiliates, officers, employees, agents, partners, and licensors.
A. DISCLAIMER OF WARRANTIES
You use the Service at your own risk. We make no warranties or guarantees.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(A) YOUR USE OF THE Service AND ANY PRODUCTS OR SERVICES MADE AVAILABLE ON OR THROUGH THE Service IS AT YOUR SOLE RISK, AND THE Service AND ANY PRODUCTS OR SERVICES MADE AVAILABLE ON OR THROUGH THE Service ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES OFFERED BY THE RELEASED PARTIES OR OTHER PERSONS ONOR THROUGH THE Service, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT;
(B) THE RELEASED PARTIES MAKE NO WARRANTY THAT
(I) THE Service OR ANY PRODUCTS OR SERVICES MADE AVAILABLE ON OR THROUGH THE Service WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS,
(II) THEService WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE,
(III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE Service WILL BE ACCURATE OR RELIABLE,AND
(IV) ANY ERRORS IN THE Service WILL BE CORRECTED;
(C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE Service IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
B. LIMITATION OF LIABILITY AND INDEMNIFICATION DISCLAIMER OF WARRANTIES
We are not liable for anything that happens to you involving the Service. If you use the Service in a way that causes us to be included in litigation, you agree to pay all legal fees and costs for Released Parties.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE RELEASED PARTIES SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL,CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES),RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE Service OR ANY PRODUCTS OR SERVICES MADE AVAILABLE ON OR THROUGH THE Service; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA,INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTEREDIN TO THROUGH, FROM, OR AS A RESULT OF THE Service; (iii) UNAUTHORIZED ACCESS TO,CORRUPTION OF, interference WITH, OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;(iv) STATEMENTS OR CONDUCT OF ANY USER OR THIRD PARTY ON THE Service; (v) YOUR RELIANCE ON CONTENT MADE AVAILABLE BY US; OR (vi) ANY OTHER MATTER RELATING TOTHE Service. We will not be liable for any delay or failure to perform any of our obligations under these Terms byreasons, events or other matters beyond our reasonable control. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.TOTHE FULLEST EXTENT POSSIBLE BY LAW, THE RELEASED PARTIES’ COLLECTIVE MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE Service OR YOUR USE OF UPSIDERCONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED $100.THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Force Majeure. Under no circumstances shall Upsider be held liable for any delay or failure in the Service directly or indirectly resulting from, arising out of, relating to or in connection with events beyond the reasonable control of Upsider, including, without limitation, internet failures, equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, earthquakes, explosions, acts of God, war, terrorism, intergalactic struggles, governmental actions, orders of courts, agencies or tribunals or non-performance of third parties. The provisions of this paragraph are in addition to, and not intended to limit or modify, the limitations in this Limitation of Liability section as stipulated above.
Indemnity.You agree to defend, indemnify, and hold harmless the Released Parties from and against any claims, actions, or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from your access or use of the Service, including, but not limited to:
(I) your use of or reliance on any third-party content,
(II) your use of or reliance on any Upsider Content,
(III) your breach of these Terms. We shall provide notice to you promptly of any such claim, suit, or proceeding.
XIII. General Terms
XIV. Arbitration, Class Waiver, and Waiver of Jury Trial
We do business in New York, so all disputes must be resolved there. We will use arbitration to resolve any problems, and you cannot join a class action lawsuit or obtain a jury trial for any disputes you have with us related to your use of the Service.
These Terms and the relationship between you and Upsider shall be governed by the laws of the state of New York without regard to its conflict of law provisions. You and Upsider agree to submit to the personal and exclusive arbitration of any disputes relating to your use of the Service under the rules of the American Arbitration Association. Any such arbitration, to the extent necessary, shall be conducted in New York county in the state of New York. You covenant not to sue Upsider in any other forum.
You also acknowledge and understand that, with respect to any dispute with the Released Parties arising out of or relating to your use of the Service or these Terms:
• YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY;
• YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE;
• YOU MUST FILE ANY CLAIM WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE OR IT IS FOREVER BARRED.
NOT WITHSTANDING THE FOREGOING, THIS SECTION WILL NOT PREVENT UPSIDER FROM SEEKING INJUNCTIVE RELIEF FROM ANY COURT HAVING JURISDICTION OVER THE PARTIES AND THE SUBJECT MATTER OF THEIR DISPUTE. You acknowledge that, in the event of a breach of these Terms by Upsider or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Upsider, and your only remedy will be for monetary damages, subject to the limitations of liability set forth above.