Terms of Use
Your access to and use of the products and services of upScale, LLC. (“upScale”), available through upScale.com and/or any other related website or application (collectively, the “Website”), shall be governed by the following terms and conditions of use (“Terms”). Please review these Terms carefully. By accessing, visiting, browsing or using any part of the Website, you agree that you have read and understood the following terms and conditions of use, and agree to be bound by and comply with them. These Terms will apply to every access to the Website. upScale reserves the right to revise these Terms by publishing a revised version of this document on the Website: that version will then apply to all use by you following the date of publication. Continued use of the Website, products or services following this notice will indicate your acknowledgment and agreement to be bound by the revised Terms, and each access of information from the Website will be a separate, discrete transaction based on the then-prevailing terms. If you do not agree to these Terms, do not access or interact with any part of the Website.
Electronic Contracting and Messaging
By using the Website, registering for a product, creating an online account for the services (“Account”), or engaging in any transactions via the Website (including the installation of any software), you are agreeing to these Terms and our Privacy Policy. You agree that when you use your login credentials or click on any “I Agree” button when using the Website, you affirmatively consent to conduct business electronically with upScale, and such credentials and processes have the same force and effect as your written signature. You agree and consent to upScale sending you disclosures, messages, notices, and other communications, including direct marketing text messages, to your designated mobile phone and email account.
Creating an Account
To access certain portions of the Website or services, you are required to create an Account. You represent and warrant that: (i) all required registration information you submit is truthful, accurate and complete; (ii) you will maintain the accuracy, security, and confidentiality of such information; and (iii) your use of the Website, products or services does not violate any U.S. or other applicable law or regulation. You have no right to transfer your Account to any other individuals in any manner. upScale is not liable for any loss or damages arising from your failure to maintain the confidentiality or security of your Account.
Restrictions On Use of Materials
Materials on the Website are copyrighted and all rights are reserved. Text, graphics, databases, HTML code, and other intellectual property are protected by U.S. and international copyright laws, and may not be copied, reprinted, published, reengineered, translated, hosted, or otherwise distributed by any means without explicit permission of upScale. All of the trademarks on the Website are trademarks of upScale, Inc., the legal owners and authors of upScale.com, or of other owners used with their permission. The display of trademarks on the Website does not imply that a license of any kind has been granted. Any unauthorized downloading, re-transmission, or other copying or modification of trademarks and/or the contents herein may be a violation of federal trademark and/or copyright laws and could subject the copier to legal action.
Database Ownership, License and Use
Subject to your compliance with these Terms, upScale grants you a revocable, limited, non-exclusive, non-transferable, non-sub-licensable license to access and use the content or services made available on the Website, in each case solely in connection with your personal use of the Website and any products or services. No other licenses or rights are granted to you by implication or otherwise under any intellectual property or proprietary rights owned or controlled by upScale or its licensors.
upScale grants you a non-exclusive, non-transferable license to use database(s) accessible to you subject to these Terms. The database(s) may be used only for viewing information or for extracting information to the extent described below.
You agree to use information obtained from upScale’s databases only for your own private use or the internal purposes of your home or business, provided that is not the selling or brokering of information, and in no event shall you cause or permit to be published, printed, downloaded, transmitted, distributed, reengineered, or reproduced in any form any part of the databases (whether directly or in condensed, selective or tabulated form) whether for resale, republishing, redistribution, viewing, or otherwise.
Nevertheless, you may on an occasional, limited basis download or print out individual pages of information or videos that have been individually selected, to meet a specific, identifiable need for information which is for your personal use only, or is for use in your business only internally, on a confidential basis. You may make such limited number of duplicates of any output, both in machine-readable or hard copy form, as may be reasonable for these purposes only. Nothing herein shall authorize you to create any database, directory or hard copy publication of or from the databases, whether for internal or external distribution or use.
upScale may change, upgrade, discontinue, or temporarily suspend any feature or component of the Website at any time without notice.
Liability
The materials on the Website are provided “as is” and without warranties of any kind, either express or implied. upScale disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose.
upScale does not warrant that the functions contained in the materials will be uninterrupted or error-free, that defects will be corrected, or that the Website or the server that makes it available are free of viruses or other harmful components. upScale does not warrant or make any representations regarding the use or the results of the use of the materials on the Website in terms of their correctness, accuracy, reliability, or otherwise. You (and not upScale) assume the entire cost of all necessary servicing, repair or correction. Applicable law may not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
To the fullest extent permissible pursuant to applicable law, upScale and each of its respective officers, director, employees, agents, licensors, representatives and third-party providers will not be liable to you for any compensatory, consequential, incidental, exemplary, indirect, special or similar damages that may result from the use of, access to, or the inability to use, the Website or any materials contained on the Website, whether the material is provided or otherwise supplied by upScale or any third party.
If, notwithstanding the other provisions of these Terms, upScale is found to be liable to you for any damages or losses arising out of your use of, access to or inability to use the Website or any material provided or otherwise supplied by us or any third party, our liability shall in no event exceed the greater of: (i) the total amounts actually paid by you with respect to any services, features, or materials available through the Website, paid in the last six months prior to the date of the initial claim made by you against upScale; or (ii) US $100.00. Note that some jurisdictions do not allow limitations of liability or may place limitations on our ability to limit our liability to you, so the foregoing limitation may not apply to you.
Facts and information on the Website are believed to be accurate at the time they were placed on the Website. Changes may be made at any time without prior notice. All data provided on the Website is to be used for information purposes only. The information contained on the Website is not intended to provide specific legal, financial or tax advice, or any other advice, whatsoever, for any individual or company and should not be relied upon in that regard.
The services described on the Website are only offered in jurisdictions where they may be legally offered. Information provided on the Website is not all-inclusive, and is limited to information that is made available to upScale. Accordingly, such information should not be relied upon as all-inclusive or accurate.
Use of Third-Party Hyperlinks and Websites
The Website may contain hyperlinks or references to other websites outside of our control or operated by third parties. upScale is not responsible for, nor shall it be liable to you for your access and use of any such hyperlinks or websites. The appearance on the Website of external hyperlinks to third-party websites, in any form, does not constitute endorsement by upScale of the opinions or views expressed by any such third-party websites and we do not take responsibility for the accuracy, currency, completeness, or quality of the content contained at such websites. Furthermore, upScale is not responsible for the quality or delivery of the products or services offered, provided, accessed, or advertised by any third party. As such, upScale will not be responsible or liable to you in any way for any content, errors, or omissions, or for the results obtained from the use of any information contained in or provided to those third party sites.
Confidentiality of Codes, Passwords and Information
You agree to treat as strictly private and confidential any subscriber code, username, user ID, or password which you may have received from upScale and all information to which you have access through password-protected areas of the Website and will not cause or permit any such information to be communicated, copied, or otherwise divulged to any other person whatsoever.
User Submissions
To the extent that the Website provides functionality allowing users to upload, submit, or otherwise transmit any information, image(s), photograph(s), location data, or other material or communications (e.g., user-generated content such as win submissions or any other type of submission (each a “Submission”)), via or in connection with the Website, the following conditions apply.
USE OF YOUR SUBMISSION. By posting or otherwise submitting your Submission you hereby irrevocably assign (and agree to assign) to upScale, Inc., free and clear of any restriction or encumbrances, all of your rights, title and interest in and to the Submission posted or submitted, including, without limitation, all copyrights, rights in patents, rights in trade secrets, and all rights incidental, subsidiary, ancillary, or allied thereto (including, without limitation, all derivative rights) in and to the Submission. To the extent the assignment granted above fails for any reason, you hereby grant to upScale an exclusive, perpetual, irrevocable, royalty-free, worldwide license under your intellectual property rights, with the right to sublicense to third parties the right, to make, access, practice, sell, offer for sale, export, import, copy, use, modify, prepare derivative works from, distribute, publicly display, publicly perform, and otherwise exploit in any manner those Submissions with respect to which the foregoing assignment shall have failed. You agree to execute any documents and take any other actions as may reasonably be necessary, or as upScale may reasonably request, to evidence, perfect, maintain and enforce upScale’s ownership of or license to any such Submissions. In addition to the foregoing, upScale shall have the right, in its sole discretion, to edit, duplicate, or alter the Submission in any manner for any purpose that upScale deems necessary or desirable, and you irrevocably waive any and all so-called moral rights you may have in the Submission. You further agree that you shall have no right of approval and no claim to compensation in connection with the Submission.
REPRESENTATIONS AND WARRANTIES/INDEMNIFICATION. You represent and warrant to upScale as follows: (a) you are voluntarily submitting the Submission; (b) you understand that no copy of your Submission will be returned to you; (c) the content of the Submission is previously unpublished and is original to you (or, if you are not the person that created the Submission, the person who created the Submission has assigned to you all rights necessary to allow you to assign and grant to upScale the rights assigned and granted (as the case may be) pursuant to these Terms); (d) the Submission does not disparage upScale or its competitors, does not contain any unlawful, pornographic, obscene, profane, defamatory, libelous, threatening, or otherwise objectionable material, and does not contain the names of any people (including, without limitation, any celebrities) or any non-upScale trademarks; (e) the content of the Submission is not the subject of any actual or threatened litigation or claim; and (f) neither the Submission, nor the use of the Submission by upScale in any manner, venue or media, whether now known or hereafter devised anywhere at any time for any purpose (including, without limitation, for purposes of advertising, promoting and publicizing upScale and its products and services), will infringe upon or violate the intellectual property rights or other rights of any other person or entity or any applicable laws. You hereby agree to indemnify and hold harmless upScale from and against any and all third-party claims, actions, or proceedings of any kind, and from any and all damages, liabilities, costs, and expenses relating to or arising out of any breach or alleged breach by you of any of your warranties, representations, or agreements hereunder.
Disputes
These Terms shall be governed by, construed and enforced in accordance with the laws of the State of California, as it is applied to agreements entered into and to be performed entirely within such jurisdiction.
To the extent you have in any manner violated or threatened to violate the intellectual property rights of upScale and/or its affiliates, upScale and/or its affiliates may seek injunctive or other appropriate relief in any state or federal court in the State of California, and you consent to exclusive jurisdiction and venue in such courts.
If any other dispute arises under these Terms, we agree to first try to resolve it with the help of a mutually agreed-upon mediator with the Judicial Arbitration and Mediation Service (“JAMS”) in San Diego, California. We will be separately responsible for our respective attorneys fees and the costs and fees associated with the mediation will be shared equally by each of us.
If it proves impossible to arrive at a mutually satisfactory solution through mediation, we agree to submit the dispute to binding arbitration in San Diego, CA. This agreement to arbitrate shall be governed by, and enforceable under, the Federal Arbitration Act (“FAA”). Any such arbitration shall be in accordance with the Comprehensive Arbitration Procedures of JAMS, as modified by the Optional Expedited Arbitration Procedures adopted by JAMS. If we cannot agree on the arbitrator after our best efforts, an arbitrator from JAMS will be selected pursuant to the Comprehensive Arbitration Rules and Procedures of JAMS in San Diego, California. Judgment upon the award made by the arbitrator may be entered in any court having jurisdiction. Each party shall be responsible for its own attorneys fees and costs and shall each be responsible for one-half of administrative costs and fees associated with any arbitration. You agree to bring any claims on an individual basis and waive, to the fullest extent permitted by the applicable law, the right to bring class, collective, and/or other representative actions.
If any provision of these Terms is void or unenforceable in whole or in part, the remaining provisions of these Terms shall not be affected thereby. Notwithstanding the foregoing, if an arbitrator or a court of competent jurisdiction declares invalid or unenforceable the provision concerning waiver of a class, collective, or other representative action (contained above), only the claims that the arbitrator or court finds can be arbitrated on an individual basis shall be arbitrable under this provision, and any remaining claims must be pursued in court.
Termination
These Terms will remain in full force and effect as long as you continue to access or use the Website, including services or products made available through the Website. You may terminate this agreement at any time by destroying all materials obtained from the Website, all related documentation, and all copies and installations thereof, whether made under these Terms or otherwise. upScale may terminate this agreement, at its sole discretion, should you fail to comply with any provision of these Terms. Notice of any such termination shall be provided on the Website, via electronic mail or other Account on the Website. Upon termination, you must destroy all materials obtained from the Website and all copies thereof, whether made under these Terms or otherwise. Termination of your Account or discontinuation or modification to the Website and any products and services accessed through the site shall not entitle you to any refund for any products or services.
Effective Date of Terms of Use
These Terms of Use are effective and were last updated on Jan 1, 2024.
