Last updated: March 17, 2014
Upsight Terms of Service
PLEASE READ THESE TERMS OF SERVICE (THESE “TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY UPSIGHT, INC., A DELAWARE CORPORATION (“UPSIGHT,” “WE” OR “US“). THESE TERMS SET FORTH THE TERMS, CONDITIONS, AND LIMITATIONS OF YOUR USE OF HTTP://UPSIGHT.COM (THE “SITE“), UPSIGHT’S MOBILE ANALYTICS AND MARKETING PLATFORM (“UPSIGHT PLATFORM“), THE TOOLS OFFERED THROUGH THE UPSIGHT PLATFORM, AND THE SERVICES THAT RELATE TO FACILITATING THE PURCHASE AND SALE OF MOBILE ADVERTISEMENTS BY BRINGING TOGETHER MOBILE ADVERTISERS AND APPLICATION PROVIDERS “PUBLISHERS”) EACH AS DESCRIBED MORE FULLY ON THE SITE (THE “ANALYTICS SERVICES,” THE “MARKETING SERVICES,” AND THE “ADVERTISING SERVICES,” COLLECTIVELY, WITH THE SITE AND UPSIGHT PLATFORM, THE “SERVICES“).
We may, in our sole discretion, modify these Terms with or without notice to you. The “Last Updated” date at the top of these Terms will indicate when the latest modifications were made. By continuing to access and use the Services after these Terms has been modified, you are agreeing to such modifications. Therefore, you should review these Terms prior to each use of the Services. In addition, when using particular services or features or making purchases on the Services, you shall be subject to any posted guidelines or policies applicable to such services, features or purchases that may be posted from time to time. All such guidelines or policies are hereby incorporated by reference into these Terms.
You represent and warrant that if you are an individual, you are of legal age to form a binding contract, or that if you are registering on behalf of an entity, that you are authorized to enter into, and bind the entity to, these Terms and register for the Services. Upsight may, in its sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms are in compliance with all laws, rules, and regulations applicable to you and the right to access the Services is revoked where these Terms or use of the Services is prohibited and, in such circumstances, you agree not to use or access the Site or Services in any way.
If you or the entity you registered on behalf of has executed a written contract with Upsight (formerly Kontagent Inc.) or Medium Entertainment, Inc., a wholly owned subsidiary of Upsight, containing terms of service, the terms of such written contract will control over any conflicting terms in these Terms.
Service Usage; Termination of Usage.
As a condition to using the Services, you may be required to register with Upsight by providing personal information and selecting a password and entering your email address (“Upsight User ID“). You hereby acknowledge and agree to provide Upsight with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of these Terms, which may result in immediate termination of your account. You may not: (i) select or use as an Upsight User ID a name of another person with the intent to impersonate that person; (ii) use as an Upsight User ID a name subject to any rights of a person other than you without appropriate authorization. Upsight reserves the right to refuse registration of, or cancel an Upsight User ID in its discretion. You shall be responsible for maintaining the confidentiality of your Upsight password, and are fully responsible for all activities that occur under Upsight User ID. You agree it is your responsibility to: (a) immediately notify Upsight of any unauthorized use of your Upsight User ID or any other breach of security; and (b) ensure that you exit from your account at the end of each session.
You further agree that you will not access the Services by any means except through the interface provided by Upsight for access to the Services. Creating or maintaining any link from another website or application to any page or functionality on the Services without the prior written authorization of Upsight is prohibited. Running or displaying the Services or any information or material displayed on the Services in frames or through similar means on another website or application without the prior written authorization of Upsight is prohibited. Any permitted links to the Services must comply with all applicable laws, rules, and regulations.
These Terms are effective unless and until terminated by either you or Upsight. You may terminate these Terms at any time, provided that you discontinue any further use of the Services. Upsight also may terminate or suspend these Terms, at any time, without notice, and accordingly deny you access to the Services, for any reason, including without limitation, if in Upsight’s sole discretion you fail to comply with any term or provision of these Terms or your use is harmful to the interests of another user or Upsight and its Affiliated Parties (as defined below), and/or their respective business partners. Upon any termination of the Terms by either you or us, you must promptly stop using the Services and destroy all materials downloaded, as well as all copies of such materials, whether made under the Terms or otherwise. Any fees paid hereunder are non-refundable. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, limitations of liability, and any provisions regarding your use of confidential and/or proprietary information.
Upsight reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. Except as otherwise expressly stated in these Terms, you agree that Upsight and its Affiliated Parties (as defined below) shall not be liable to you or to any third party for any modification, suspension or discontinuation of the Services.
Upsight does not guarantee that the Services will be operable at all times or during any down time caused by any of the following: (i) caused by outages to any public Internet backbones, networks or servers; (ii) failures of your equipment, systems or local access services; (iii) previously scheduled maintenance; or (iv) events beyond Upsight’s (or affiliated parties’) control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Upsight (or its affiliated parties) or your servers are located or co-located. For users of the Analytics Services, complete accuracy in all aspects of your statistics at all times also is not guaranteed. It is your responsibility to ensure that your systems and applications are functioning correctly and sending accurate data, to Upsight servers.
License to Upsight SDK.
Upsight grants to you a limited, revocable, non-transferable, non-exclusive and non-sublicensable license during the Services term to use the Upsight SDK solely to access the Upsight Platform and solely to the extent permitted hereunder. Except to the limited extent expressly provided in these Terms, Upsight does not grant, and you will not acquire, any right, title or interest (including, without limitation, any implied license) in or to any Upsight intellectual property rights; and all rights not expressly granted herein are reserved to Upsight. The Upsight SDK may be downloaded from the Site.
If you are a mobile application publisher or advertiser that uses the Marketing Services, including the Upsight Platform, you also agree to comply with the following terms:
IMPLEMENTATION. If you are a publisher, you may list assets including but not limited to mobile sites, applications, and device platforms (“Mobile Properties“) and make them available for advertisement. If you are a publisher, you hereby grant Upsight the right to access, index, store and cache requests made from user’s Mobile Property to the Service, including by automated means. If you are an advertiser, you may produce content including but not limited to text links, banners, videos, and graphics (“Advertisements“) for display on a publisher’s Mobile Property. You agree to comply with the technical specifications provided by Upsight to enable proper display of the Advertisements in connection with the Services.
COMMUNICATIONS SOLELY WITH UPSIGHT. You agree to direct to Upsight and not to any advertiser or publisher, as the case may be, all communications regarding any matter arising out of your use of the Services.
CONTENT GUIDELINES. Please refer to the advertiser content guidelines (which are incorporated herein by reference) for information regarding acceptable use of content.
By registering for our Analytics Services, you hereby acknowledge and agree that Upsight will act on behalf of, and at your direction, in storing your data. Further, by using the Analytics Services, you represent and warrant that the data provided by you to Upsight is compliant with the provisions of the Facebook Terms of Service and that the data is collected from end-users that have agreed to the Facebook Terms of Service with proper consent. You further warrant that your collection and usage of data through Upsight’s Services abide by applicable privacy laws, and any applicable third-party data use terms.
USE OF DATA PROVIDED TO YOU BY UPSIGHT. The user data that Upsight collects on your behalf is your data, that may also include data that you have been licensed to collect and use by third parties, being governed by data use terms between you and that third party. Aggregated data derived only from your user data and provided by the Upsight dashboard is also your data. Upsight may collect, compile and aggregate transactional data based on the Services activity originating from your mobile applications (“Product Data”). Upsight may only use Product Data in the following manner: (i) Upsight may retain a copy of the Product Data as necessary to comply with applicable law, (ii) Upsight may use the Product Data for the purpose of providing and improving the Services, and (iii) Upsight may use the Product Data solely in aggregate, non-identifiable form (i.e., not identifying you or any end user) for Upsight’s legitimate business purposes, provided that Upsight may not at any time disclose Product Data in a form that identifies you and/or any end user of your mobile application to a third party without your prior written authorization.
Fees and Payment.
While Upsight offers many services for free, some of the Services require payment of fees. Upsight reserves the right to change its price list and to institute new charges at any time, including the addition of costs for premium tools or other fees charged to Upsight by third-party vendors, upon prior notice to you. Notice of any changes to our price list may be sent to you directly by email or posted on the Site. All fees are indicated in United States dollars. Any outstanding balances will become automatically due and payable upon termination of Service, for any reason, and any collection expenses (including attorneys’ fees) incurred by Upsight will be included in the amount owed.
If you are an advertiser, you shall pre-pay all applicable fees, as described on the Site, in connection with such Services selected by User.
If you are a user of our for-pay Analytics or Marketing Services, you will be billed on a monthly basis, at the current pricing rates for your chosen package, in arrears. If in any month, your actual usage exceeds any of the usage allowance criteria of your package, for example MAU volume, then you will automatically be billed for a higher-level package that accommodates that higher usage, if available, for that month. Cancellation notices must be submitted by email to: firstname.lastname@example.org, or in writing by mail to: 201 Mission Street, 25th Floor, San Francisco, CA 94105, and termination will be deemed effective the next business day after the request is received. Service fees for the current month will be prorated.
If you are an ad publisher, you shall receive a percentage of the Net Revenue of Advertisements associated with your use of the Services as solely determined by Upsight. “Net Revenue” shall mean revenues actually received by Upsight from the sale, use or other disposition of Advertisements displayed on publisher’s Mobile Property less sales, use and excise taxes, less any agency commissions, carrier and/or partner fees, and less any allowances actually made or taken for returns, cash discounts or promotional allowances but excluding other revenues indirectly earned, if applicable, for consulting, planning and targeting, copywriting, site building, account management or technical modifications or technical innovations which may be charged by Upsight to third parties from time to time. The portion of Net Revenue received by you shall be determined on the first Monday of each calendar month, on which day those revenues accrued to your account 30 or more days earlier shall become eligible to be paid. Payments to you shall be sent by Upsight only if your earned balance is greater than or equal to $300USD. If your earned balance is less than $300, no check shall be sent until the following calendar month, on the first Monday of which Upsight shall make the aforesaid determination anew.
In addition, if you are a publisher, you agree that any payments that may become due to you (as described in these Terms and on the Site) are specifically conditioned upon Upsight’s receipt of full payment from the applicable advertiser. If Upsight does not receive the applicable payment in full from any such advertiser, Upsight shall have no liability or responsibility to you (and you hereby release Upsight) with respect thereto. If you dispute any payment made in connection with the Services, you must notify Upsight in writing within 30 days of any such payment. Failure to so notify Upsight shall result in the waiver by you of any claims related to such disputed payment. Payment shall be calculated solely based on records maintained by Upsight. No other measurements or statistics of any kind shall be accepted by Upsight or have any effect under these Terms. Upsight shall not be liable for any payment based on (i) any fraudulent impressions generated by any person, robot, automated program or similar device or for fraudulent impressions similarly generated on any advertisements, as reasonably determined by Upsight; (ii) impressions commingled with a significant number of fraudulent impressions or fraudulent clicks described in (i) above; or (iii) any breach of these Terms by you. To ensure proper payment, you are solely responsible for providing and maintaining accurate contact and payment information associated with your account and Upsight User ID. Please email us at email@example.com or Upsight Publisher Payment Information Sheet to obtain the proper payment information form. Once you have informed us of your payments preference by completing and delivering the payment information form to us, we will issue payments in accordance with these Terms. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your use of the Services.
Connectivity and Communications.
You must have an internet-enabled cell phone or device using an operating systems supported by Upsight in order to access the Upsight Platform. Normal carrier charges and taxes may apply to any content you obtain from the Services. Upsight is not responsible for any surcharges you incur from your mobile phone or internet service provider as a result of the use of the Services. In the event you change or deactivate your mobile device, any content such as awards collected, or coupons received will not transfer to your new device.
You expressly agree that, as part of the Services, unless you are only a user of our Analytics Services, you will receive communications by push notification, text message (SMS), and/or email, including promotional communications from time to time. You may stop receiving promotional alerts via: (a) push notification by emailing your request to opt-out, along with your cell phone number to firstname.lastname@example.org, or by disabling push notifications on your mobile device; (b) text message by sending your request to opt-out, along with your cell phone number to email@example.com and following the opt-out instructions in the text message; or (c) via email by emailing firstname.lastname@example.org. You may not opt out of Service-related emails.
Upsight does not knowingly collect any personal information from children under the age of 13. Should your Mobile Properties be directed to children under the age of 13 or should you collect information from children under the age of 13 (further collectively referred as “Children’s Content”), we require you at all times to comply with the Children’s Online Privacy Protection Act of 1998 (“COPPA”), as amended from time to time. We require you to use the tools available in the Upsight Services to designate users of your Mobile Properties that are under 13 or who have otherwise opted-out of personal information collection. Should you choose not to designate such users, we will assume that such users are not under the age of 13 or have not opted-out of personal data collection. Upsight will not actively monitor your Mobile Properties for Children’s Content and compliance with COPPA, therefore, we disclaim liability for your failure to properly designate users through the Upsight Services and your failure to honor your obligations set forth herein.
You (whether a publisher, advertiser or otherwise) agree that you will not (or authorize or encourage any third party to) use the Upsight SDK, or the Services, generally, to:
You may submit reviews or other feedback using forms on the Services. Any comments, suggestions, or feedback relating to the Services (collectively, “Feedback“) submitted to Upsight shall become the property of Upsight. Upsight will not be required to treat any Feedback as confidential, and will not be liable for any ideas (including without limitation, product, application, site, Services or advertising ideas) and will not incur any liability as a result of any similarities that may appear in the Services, or operations, in the future. Without limitation, Upsight will have exclusive ownership of all present and future existing rights to the Feedback of every kind and nature everywhere and will be entitled to use the Feedback for any commercial or other purpose whatsoever, without compensation to you or any other person sending the Feedback. You acknowledge that you are responsible for whatever material you submit, and you, not Upsight, have full responsibility for the message, including its legality, reliability, appropriateness, originality, and copyright.
Links; Third Party Websites.
Links on the Services to third party websites and applications are provided only as a convenience to you. If you use these links, you will leave the Services. Your dealings with third parties through links to such third party websites or applications are solely between you and such third parties. You agree that Upsight will not be responsible or liable for any content, goods or services provided on or through these outside websites or applications or for your use or inability to use such websites or applications. You will use these links at your own risk. You are advised that other websites on the Internet and mobile applications, including third party websites and applications linked from the Services, might contain material or information that some people may find offensive or inappropriate; or that is inaccurate, untrue, misleading or deceptive; or that is defamatory, libelous, infringing of others’ rights or otherwise unlawful. Upsight expressly disclaims any responsibility for the content, legality, decency or accuracy of any information, and for any products and services, that appear on any third party website or application.
Without limiting the foregoing, your correspondence or business dealings with, participation in promotions of or purchases from, advertisers or third party applications found on or through the use of the Services, including payment for and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser or third party application provider. You agree that Upsight and its Affiliated Parties shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or third party application providers on the Services.
General Disclaimers; Limitation of Liability.
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, UPSIGHT, ITS SUBSIDIARIES AND OTHER AFFILIATED COMPANIES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND OTHER REPRESENTATIVES (COLLECTIVELY, “AFFILIATED PARTIES“) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, UPSIGHT AND ITS AFFILIATED PARTIES MAKE NO WARRANTY THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE INFORMATION THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, AND (E) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, YOUR MOBILE DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM UPSIGHT AND ITS AFFILIATED PARTIES OR ON OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
UPSIGHT AND ITS AFFILIATED PARTIES SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING ANY LIABILITY (A) AS A PUBLISHER OF INFORMATION, (B) FOR ANY INCORRECT OR INACCURATE INFORMATION, (C) FOR ANY UNAUTHORIZED ACCESS TO OR DISCLOSURE OF YOUR TRANSMISSIONS OR DATA, (D) FOR STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES, OR (E) FOR ANY OTHER MATTER RELATING TO THE SERVICES OR ANY THIRD PARTY WEBSITE OR APPLICATION. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF GOOD WILL, LOSS OF USE, LOSS OF DATA, COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR INFORMATION, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF AN INDIVIDUAL ADVISES OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN UPSIGHT AND YOU. THE INFORMATION AND SERVICES OFFERED ON AND THROUGH THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NOTWITHSTANDING THE FOREGOING, THE SOLE AND ENTIRE MAXIMUM LIABILITY OF UPSIGHT AND AFFILIATED PARTIES FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OR CLAIM WHATSOEVER, SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR ANY INFORMATION OR SERVICE PURCHASED BY YOU FROM UPSIGHT ON THE SERVICES DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE RELEVANT CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID UPSIGHT ANY AMOUNTS FOR ANY INFORMATION OR SERVICE PRIOR TO THE DATE ON WHICH YOU FIRST ASSERT ANY CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH UPSIGHT IS TO STOP USING THE SERVICES AND CANCEL YOUR ACCOUNT.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE EXCLUSIONS AND LIABILITY ARE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
Rules For Sweepstakes, Contests, Raffles, Surveys And Similar Promotions.
By agreeing to use the Services, you, on behalf of your organization, expressly authorize Upsight, to produce, publish, and share a case study on Upsight’s website about your organization’s use of Upsight, and allow Upsight to use your organization’s name and logo in self-promotional materials such as press releases, advertisements, brochures, etc., without compensation.
Pursuant to 47 U.S.C. Section 230 (d) as amended, we hereby notify you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protection is available at http://www.staysafeonline.org.
Applicable Law; Dispute Resolution.
The Services are controlled and operated by Upsight from within the United States of America, and is intended for use only by residents of the United States. Upsight makes no representations or warranties that the content or materials of the Services are appropriate or lawful in any foreign countries, or that any items or applications offered for sale or download through links on the Services will be available outside the United States. Those who choose to access the Services from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. You may not use or export or re-export any content downloaded from the Services or any copy or adaptation of such content, in violation of any applicable laws or regulations, including without limitation United States export laws and regulations. If you reside outside of the United States, by using the Services, you consent to the transfer, processing and use of your information outside your country.
We are committed to resolving any disputes that may arise in a fair and efficient manner. Our goal is to provide you with a neutral and cost-effective means of resolving the dispute quickly. Thus, for any claim related to these Terms or our Services where the total amount sought (i) is equal to or more than $10,000, you may, or (ii) is less than $10,000, you must, initiate dispute proceedings by completing the Notice of Dispute Form available at Upsight__Inc__-_Notice_of_Dispute_Form. Upsight may offer to settle the claim, provided however that if the dispute is not resolved within 30 days from the date of Upsight’s offer to settle or Upsight’s receipt of the Notice of Dispute Form (whichever is later), you may invoke binding arbitration by filing a separate Demand for Arbitration available at Upsight__Inc__-_Notice_of_Demand_for_Arbitration_Form . A party electing arbitration shall initiate it through an established alternative dispute resolution (“ADR“) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (A) the arbitration shall be conducted, at the option of the party seeking relief, in person, by telephone, online, or based solely on written submissions; (B) any in person arbitration will take place in the county in which the city or town you have entered as your residence sits (and if neither is applicable, then the arbitration shall take place in San Francisco, California); (C) either party may bring a claim in small claims court in lieu of arbitration; (D) the ADR provider may award any form of individual relief; (E) Upsight will pay all costs for non-frivolous claims; (F) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction; (G) Upsight may not seek reimbursement of its attorney’s fees in connection with such arbitration; (H) in the event you receive an arbitration award greater than Upsight’s last written settlement offer, Upsight will pay a $10,000 minimum recovery and twice the amount of the your attorney’s fees, (I) claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. You hereby agree that for any dispute or claim that is less than $10,000, you waive any right to a trial (by judge or jury), you waive any right to participate as a member of a class in a class action or similar proceeding, and you will abide by the dispute resolution mechanism in this Section.
The formation, construction and interpretation of these Terms shall in all respects be governed by and construed in accordance with the laws of the United States and the State of California, without giving effect to any principles of conflicts of laws. These Terms shall not be governed by the United Nations Conventions of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded from any interpretation of these Terms. For any dispute that is equal to or more than $10,000 and is not resolved or arbitrated under this Section of these Terms, it is hereby agreed that any action at law or in equity arising under these Terms and/or your use of the Services shall be finally adjudicated or determined in any court or courts in San Francisco, California, and the parties hereto hereby submit generally and unconditionally to the personal and exclusive jurisdiction and venue of these courts in respect to any such matter and consent to service of process by any means authorized by California law.
All claims you bring against Upsight must be resolved in accordance with this Section. All claims filed or brought contrary to this Section shall be considered improperly filed and a breach of these Terms. Should either party file a claim contrary to this Section, the other party may recover attorneys’ fees and costs up to $10,000, provided that such party seeking such fees has notified the other in writing of the improperly filed claim, and the other has failed to promptly withdraw the claim.
If any provision of these Terms shall be deemed unlawful, void, or for any reason unenforceable by a court of competent jurisdiction, the validity and enforceability of any remaining provisions shall not be affected. When used in these Terms, the term “including” shall be deemed to be followed by the words “without limitation.”
The failure of Upsight and its Affiliated Parties to insist upon strict adherence to any term of these Terms shall not constitute a waiver of such term and shall not be considered a waiver or limit that party’s right thereafter to insist upon strict adherence to that term or any other term of these Terms.
You agree that regardless of any statute or law to the contrary, any claim of cause of action arising from or relating to use of the Services or these Terms must be filed within one year after such claim or cause of action arose, or will be forever barred. The “General Disclaimers; Limitation of Liability” provisions of these Terms are for the benefit of Upsight and its Affiliated Parties as defined herein, and each of these individuals or entities shall have the right to assert and enforce these provisions directly against you on its own behalf.
We respect the intellectual property rights of others and require that Service users do the same. If you believe that your proprietary work has been copied in a way that constitutes copyright infringement, please forward the following information to Upsight at email@example.com, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. 512(c)(2), named below:
Where Upsight has provided you with a translation of the English language version of these Terms, then you agree that the translation is provided for your convenience only and that the English language versions of the Terms will govern your relationship with Upsight.
If there is any contradiction between what the English language version of these Terms says and what a translation says, then the English language version shall take precedence.
If you have any comments, questions, or complaints regarding these Terms or the Services, or wish to report any violation of these Terms, please contact us. We will address any issue to the best of our abilities as soon as possible.
Third Party Components.
Certain third party components may be made available to you in connection with your use of the Site and our Services. Information regarding these components is generally made available to you in connection with the delivery of the applicable media to you. Without limiting the generality of the foregoing, the Site and Services may include access to the following: