Upgrata Inc. Terms of Service Agreement

This Terms of Service Agreement (the “Agreement”) applies to your use of the cloud application services and any other products and services (collectively, the “Service”) provided to you through the upgrata.com website (the “Site”) or through any other websites owned and operated by Upgrata Inc., a Delaware corporation (“Upgrata”). This Agreement affects your rights and should be read carefully.

1. Terms and Conditions

BY COMPLETING THE REGISTRATION PROCESS AND CLICKING AN ACCEPTANCE BOX, BY EXECUTING ANY AGREEMENT INCORPORATING THE TERMS OF THIS AGREEMENT, OR BY UTILIZING THE SITE OR ANY OF THE SERVICES, YOU ARE AGREEING TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. While using the Site, you agree not to:

Defame, abuse, harass, stalk, threaten or otherwise violate the rights of others, including without limitation others’ privacy rights or rights of publicity;
Impersonate any person or entity or use any fraudulent, misleading or inaccurate email address or other contact information;
Restrict or inhibit any other user from using the Site, including, without limitation, by means of "hacking" or defacing any portion of the Site;
Violate any applicable laws or regulations;
Upload to, transmit through, or display on the Site (a) any material that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes Upgrata’s or any third party's intellectual property or other rights; (b) any confidential, proprietary or trade secret information of any third party; or (c) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or other unsolicited commercial communication (except as otherwise expressly permitted by us);
Upload, post, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes” or any other form of solicitation;
Transmit any software or other materials that contain any viruses, worms, trojan horses, defects, or other destructive items;
Modify, adapt, translate, distribute, reverse engineer, decompile, disassemble or create derivative or competitive works of any portion of the Site or Services;
Rent, lease, lend, sell, resell, sublicense, assign, distribute, publish, transfer, or otherwise make available any portion of the Services to any third party, including on the internet or in connection with any time-sharing, service bureau, software as a service, cloud, or other technology or service; or
Remove any copyright, trademark or other proprietary rights notices contained in or displayed on any portion of the Site.

2. Terms of Service Modifications:

Upgrata reserves the right at any time and from time to time to change, add or modify the terms and conditions of this Agreement. Notice of any such changes will be posted on the Site and continued use of the Site or Services thereafter shall be deemed an acceptance and ratification of any such changes by the applicable user.

3. Modifications to the Site and Pricing Schedules:

Upgrata may in its sole discretion add, delete, modify or amend features of the Site and/or the Service, and fees contained within and charged in connection therewith including, but not limited to, with respect to fees for use. Any changes to fees will become effective in the billing cycle following notice of such change to you.

4. Accuracy of Personal Information:

In consideration of your use of the Service, you agree to provide true, accurate, current and complete information about yourself when completing “my profile;” and to maintain true, accurate and current information when updates are required. If you provide any information that is untrue, inaccurate, not current or incomplete, or Upgrata has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Upgrata has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). Upgrata takes the safety and privacy of all its users, especially children, very seriously. For this reason, you must and hereby do represent and warrant that you are at least 18 years old. You also acknowledge that it is your sole and exclusive responsibility to determine whether the Services, the Third Party Services and/or the Site and its content is appropriate for you.

5. Third Party Materials:

You acknowledge and agree that if you separately procure services, applications or online content (“Third Party Materials”) from independent third parties (“Third Party Providers”), whether through the Site or otherwise, you acknowledge and agree that Upgrata is not responsible for any activities related to the Third Party Materials or activities of the Third Party Providers. Upgrata does not and shall not bear any responsibility or liability for any negligence, misconduct, failure, insufficiency or other activities by Third Party Providers or any other third party in connection with the Third Party Materials that are provided. Third Party Materials are not Services and, as between you and Upgrata, Upgrata has no liability whatsoever with respect to your procurement or use of Third Party Materials.

6. Fees; General Payment Information:

Unless otherwise negotiated, Services are provided on a monthly subscription basis, and will automatically renew at the end of each monthly period until terminated. Subscription Services shall be billed on a monthly basis in advance on the first day of each month until the subscription is terminated.
In general, payments shall be made via credit card, wire transfer, ACH or other means approved by Upgrata, as provided by you via the Site, unless other arrangements are made with Upgrata. If invoice billing is agreed to by Upgrata, payment shall be made no more than thirty (30) days after the date of invoice. All payments for Services are non-refundable.
All fees are exclusive of all taxes (including, without limitation, sales and use taxes), levies or duties imposed by any national, federal, state or local taxing authorities other than United States (federal or state) net income taxes (collectively, “Taxes”), and you will be responsible for payment of all such Taxes. If Upgrata is required to pay any such Taxes, you shall reimburse Upgrata for the full amount of Taxes required to be paid by Upgrata within 30 days after receipt of an invoice therefore.
Any late payments may bear interest at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less). Upgrata reserves the right to suspend the provision of Services to you if any payment is not received when due.

7. Credit Card, ACH Payments:

Upgrata shall not process any orders based on incorrect, expired, or over-charged credit cards and/or incorrect or non-sufficient funds for ACH payments. However, in the event such an order is processed, Upgrata reserves the right to promptly collect, and you hereby agree to promptly pay Upgrata, all amounts due, payable, or owed by you to Upgrata. Upgrata reserves the right to charge a nominal fee of $10 per order in the event you attempt to make a payment by credit card or ACH payment that is declined, necessitating an alternative mode of payment or exception processing. If you fail to pay any fees or charges when due, Upgrata may charge such amount directly to the credit card identified in your account information and Upgrata may suspend or terminate your access to the Service. You agree that you shall bear sole liability for any fees, including attorneys’ fees and collection costs, that Upgrata may incur in its efforts to collect any unpaid balances from you. Your right to use the Service is subject to limits established by Upgrata in its sole discretion and/or by your credit card issuer.

8. Personal Check Payments:

If you desire to pay by check, please contact Upgrata to make arrangements related thereto. Upgrata reserves the right to refuse to accept personal checks as payment.

9. Termination of Services:

You may terminate your use of the Site and the Service at any time by providing written notice to Upgrata. Upgrata may also, at any time, with or without notice, discontinue providing use of the Service for any reason and at any time. If you engage in any conduct which Upgrata, in its sole discretion, considers to be unacceptable, or if you breach this Agreement, or any part thereof, Upgrata will discontinue providing use of the Service and the Site. You agree that any termination of your access to the Service under any provision of this Agreement may be affected without prior notice, and acknowledge and agree that Upgrata may immediately deactivate or delete your account and/or bar any further access to the Site. Further, you agree that Upgrata shall not be liable to you or any third-party for any termination of your access to the Site.

10. Links and Third Party Content Disclaimer:

You acknowledge and agree that Upgrata has no control over third party sites, if any, to which the Site links. Any such links are provided solely as a convenience and Upgrata makes no representations and offers no warranties as to the nature, scope, quality, purported results, or any and all other items, materials, aspects, or content contained on the linked sites. Upgrata bears no responsibility and exerts no control for and over the relationship that you have with such third party sites and makes no representations regarding the terms or conditions such sites may impose upon you. Upgrata reserves the right, at its sole discretion, to feature, describe, and present third party content, software, and materials on the Site, all of which shall be subject to this Agreement, and the use of all of which shall be governed and controlled by such third party’s respective Terms and Conditions of Use or equivalent agreement. Any personally identifiable information you provide to any linked sites are collected by that site, and Upgrata makes no representations or warranties whatsoever regarding the use of any such information by the owners of such sites.

11. Intellectual Property Rights:

Any and all works of authorship, inventions, discoveries, trademarks, service marks, or other intellectual property in connection with the Site, and other products and services Upgrata describes on or furnishes through the Site (collectively, “Intellectual Property”) are the sole property of Upgrata or its third party licensors and are protected to the fullest extent possible by copyright, trademark and other intellectual property laws, and you shall have no right, title, or interest under any such Intellectual Property except as expressly permitted hereunder. You are strictly prohibited from copying, preparing derivative works of, reproducing, retransmitting, distributing, publishing, commercially exploiting, or otherwise transferring any such materials in any format or medium whatsoever. Notwithstanding the forgoing, output generated by the Site may be utilized by you for any purpose not specifically prohibited by this Agreement.
Any content and materials furnished and otherwise made available by other Site users and subscribers are provided to you for use solely as expressly permitted herein or on the Site. If you wish to redistribute or use such content and materials in any other manner, you bear sole responsibility to obtain permission from the user or subscriber who posted it and sole liability in connection with any such redistribution or use.
You acknowledge that certain information regarding you and your use of the Site may be used by Upgrata for statistical, analytical, marketing or other purposes, and you hereby grant to Upgrata a non-exclusive, worldwide, fully paid-up, royalty-free license, with right of sublicense, to utilize such information for the purposes specified herein.
With respect to any data or other information uploaded, submitted, run, accessed or otherwise processed by you via the Services (“User Content”), you retain all intellectual property rights including, without limitation, patent, trademark and copyrights to User Content. By using the Services, you hereby grant to Upgrata a worldwide, royalty-free and non-exclusive license to reproduce, adapt, perform and distribute User Content for the sole purpose and only to the extent necessary to enable Upgrata to provide you with the Services. You represent and warrant to Upgrata that: (i) you are the owner of or have a valid license to all rights to User Content, (ii) you have the right to reproduce, distribute, transfer and/or provide User Content to Upgrata for the purposes of this Agreement; and (iii) none of User Content infringes any intellectual property, proprietary, contractual or privacy rights of any party. You remain solely responsible at all times for User Content and for ensuring that User Content complies with the Agreement and with all legal and regulatory obligations applicable to User Content.
Upgrata shall have no obligation to retain, delete or return User Content to you except as provided in this Agreement. Provided you are not in material breach of this Agreement and are current with payment obligations, and subject to the functionality of the Services, you may access, export or delete User Content at any time prior to the expiration or termination of the subscription term for the Service which is applicable to User Content. Unless otherwise stated in this Agreement, Upgrata may delete all of User Content after thirty (30) days following the expiration or termination of the subscription term for the Services which is applicable to User Content. Notwithstanding any provision of this Agreement to the contrary, Upgrata may retain User Content in accordance with its standard backup or record retention policies or as required by Law. Any confidentiality provisions of this Agreement shall continue to apply to any of User Content so retained.

12. Your Account and Password:

You are solely responsible for safeguarding and maintaining the secrecy and confidentiality of your account and related information. You agree not to disclose or share your account, username or password with any third party. YOU AGREE THAT YOU ARE SOLELY AND FULLY RESPONSIBILE FOR ANY ACTIVITIES OR ACTIONS TAKEN UNDER YOUR ACCOUNT, WHETHER OR NOT YOU HAVE AUTHORIZED SUCH ACTIVITIES OR ACTIONS. You will immediately notify Upgrata of any unauthorized use of your account. You agree to pay all charges that accrue to your account through your use or the use of any third party.

13. Confidentiality:

“Confidential Information” means (i) any information disclosed, directly or indirectly, by one party (“Disclosing Party”) to the other party (“Receiving Party”) pursuant to this Agreement that is designated as “confidential,” or in some other manner to indicate its confidential nature, and (ii) information otherwise reasonably expected to be treated in a confidential nature under the circumstances of disclosure or by the nature of the information itself. However, Confidential Information does not include any information which (a) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (b) was already in the Receiving Party’s possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without use of, or reference to, the Disclosing Party’s Confidential Information.
The Receiving Party agrees: (i) not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party; provided, however, that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its and its affiliates, and their officers, employees, consultants and legal advisors who have a "need to know", who have been apprised of this restriction and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth herein, and this Agreement may be disclosed to potential purchasers of the equity or assets of the Receiving Party who are otherwise under an obligation of confidentiality with the Receiving Party; (ii) to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations under this Agreement; and (iii) to promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party.
If a Receiving Party is compelled by law or a court of competent jurisdiction to disclose the Disclosing Party’s Confidential Information, the Receiving Party will promptly notify the Disclosing Party in writing and will cooperate at the Disclosing Party’s expense in seeking a protective order or other appropriate remedy. If disclosure is ultimately required, the Receiving Party will furnish only that portion of Confidential Information that is legally required and will exercise reasonable efforts to obtain assurance that it will receive confidential treatment.

14. Privacy:

Upgrata may collect information about you and your use of the Service. Use and disclosure of such information is governed by Upgrata’s Privacy Policy, which is posted on the Site. By using the Service, you agree to the terms of our Privacy Policy.

15. Feedback:

In the event you send Upgrata any ideas, suggestions, documents, proposals or other materials (“Feedback”), you represent and warrant that you have the right to send such Feedback to Upgrata and that such Feedback does not contain or infringe any third party’s intellectual property rights. In addition, you hereby grant to Upgrata a world-wide, transferable, non-exclusive, irrevocable, perpetual, royalty-free, fully paid-up license, with right of sublicense, to utilize the Feedback for any purpose whatsoever, including, without limitation, the right to use, reproduce, distribute, modify, translate, commercialize or prepare derivative works from your Feedback. You agree that you are not entitled to any compensation for Upgrata’s use of your Feedback in any manner and for any purpose.

16. Indemnification:

You agree to defend, indemnify and hold Upgrata and its parents, subsidiaries or affiliates, and any of their respective officers, employees, agents, members, managers, partners and contractors, harmless from and against all claims, liabilities, causes of action, damages, costs and expenses, including reasonable attorneys' fees, (collectively, “Losses”) arising out of or resulting, directly or indirectly, from: (i) any act or omission by you, regardless of whether or not Upgrata is contributorily or comparatively negligent; (ii) any breach by you of any term or condition of this Agreement; or (iii) any breach or inaccuracy in any representation or warranty made by you under this Agreement.
By using the Site, you agree to indemnify, defend, and hold Upgrata and its parents, subsidiaries and affiliates, and each of their respective officers, employees, agents, members, managers, partners and contractors harmless from and against any claim, demand, action or other proceeding, and all related Losses, made by any third party or incurred by any of the foregoing due to or arising out of your use of the Site or Services, or as a result of the use of the Site by any party using your account, including but not limited to, any violation of this Agreement or the infringement of any intellectual property or other right of any person or entity.

17. Disclaimer of Warranties and Limitations of Liability:

ALL SERVICES PROVIDED THROUGH THIS SITE, ARE PROVIDED TO YOU ON AN “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE” BASIS. UPGRATA DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, IN REGARD TO ANY INFORMATION, PRODUCT, OR SERVICE FURNISHED BY IT UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. UPGRATA DOES NOT GUARANTEE THAT THE MATERIALS, INFORMATION OR SERVICES PROVIDED THROUGH THIS SITE WILL BE ERROR-FREE, OR CONTINUOUSLY AVAILABLE, OR FREE OF VIRUSES OR OTHER HARMFUL MATERIALS. UPGRATA DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM YOUR USE OF THE SERVICES OFFERED THROUGH THIS SITE.
ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THIS SITE IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING FROM DOWNLOADING SUCH MATERIAL AND/OR DATA.
UPGRATA SHALL NOT BE LIABLE FOR AND EXPRESSLY DISCLAIMS ANY AND ALL DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES IN ANY EVENT EVEN IF ADVISED BEFOREHAND OF SUCH DAMAGES AND IN NO EVENT SHALL UPGRATA BE LIABLE FOR SUCH DAMAGES RESULTING FROM THE ACTIONS OR CONDUCT OF ANY UPGRATA SUBSCRIBER OR USER OR OF ANY THIRD PARTY PROVIDER.
TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, UPGRATA’S AGGREGATE LIABILITY FOR ANY LOSS, CLAIM, DAMAGE OR LIABILITY OF ANY KIND INCLUDING THAT WHICH MAY BE DUE TO UPGRATA’S ACTUAL OR ALLEGED NEGLIGENCE OR INFRINGEMENT, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO UPGRATA UNDER THE APPLICABLE SERVICE GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN SUBPARAGRAPHS (c) AND (d) SHALL APPLY WHETHER SUCH CLAIMS ARISE UNDER ANY LEGAL OR EQUITABLE THEORY INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.

18. Copyright Policy:

Upgrata respects the intellectual property rights of others and expects users of the Site to do the same. In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”) (the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/dmca), it is Upgrata’s policy to respond to notices of any actual or alleged infringement and to terminate the accounts of repeat infringers in appropriate circumstances. If you believe in good faith that a work has been copied in a way that constitutes an infringement of your copyright, you should send a notice requesting that the material be removed, or access to it blocked. The notice must include the following: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is alleged to be infringed; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Upgrata to locate the material on the Site; (iv) a statement that the complaining party has 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; and (v) 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. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Upgrata a counter-notice. Any notice or counter-notice should be sent to the Upgrata’s Designated Copyright Agent at the following address:

Upgrata, Inc.
Attention: Copyright Protection
E-mail: legalnotices@Upgrata.com

19. Dispute Resolution:

In the event that any dispute arises between you and Upgrata regarding or relating to the Site, the Services, this Agreement and/or any aspect of your relationship with Upgrata, AND IN LIEU OF LITIGATION AND A TRIAL BY JURY, the parties consent to resolve such dispute through mandatory arbitration in Santa Clara County, California under the then prevailing rules of the Judicial Arbitration and Mediation Services (“JAMS”), before a single arbitrator mutually agreed to by the parties, or, if an arbitrator has not been agreed upon by the 60th day of the demand for arbitration by either party, appointed by JAMS. The parties hereby consent to the entry of judgment upon award rendered by the arbitrator in any court of competent jurisdiction. Notwithstanding the foregoing, however, should adequate grounds exist for Upgrata seeking immediate injunctive or immediate equitable relief, Upgrata may seek and obtain such relief. The parties hereby consent to the exclusive jurisdiction in the state and Federal courts of or in the County of Santa Clara, State of California for purposes of seeking such injunctive or equitable relief as set forth above. The parties acknowledge and agree that, in connection with any such arbitration and regardless of outcome, (a) each party shall pay all of its own costs and expenses, including without limitation its own legal fees and expenses, and (b) joint expenses shall be borne equally among the parties. Notwithstanding the foregoing, the arbitrator may cause the losing party to pay to the winning party (each as determined by the arbitrator consistent with its decision on the merits of the arbitration) an amount equal to any reasonable out-of-pocket costs and expenses incurred by the winning party with respect to such arbitration (as may be equitably determined by the arbitrator).

20. Miscellaneous Provisions:

This Agreement shall be construed and interpreted in accordance with the laws of the State of California. This instrument contains the entire agreement of the parties and cannot be amended or modified except by a written agreement, executed by each of the parties hereto. No text message whether through short message service or otherwise, nor the text of any electronic mail, shall be deemed a writing, or shall otherwise be deemed effective, for purposes of modifying this instrument. No consent or waiver, express or implied, by either party to this Agreement of any breach or default by the other in the performance of any obligation hereunder shall be deemed or construed to be a consent to or waiver of any other breach or default by such party hereunder. Failure on the part of any party hereto to complain of any act or failure to act of the other party or to declare the other party in default hereunder, irrespective of how long such failure continues, shall not constitute a waiver of the rights of such party hereunder. The parties hereto agree that this Agreement will be interpreted neutrally, and that it should not be construed for or against any party deemed to be the drafter thereof. In the event any legal action is filed in connection with this Agreement, the prevailing party shall be entitled to recover costs and expenses including, without limitation, attorneys’ fees, incurred in such action. If a court finds any provision of this Agreement invalid or unenforceable as applied to any circumstance, the other provisions of this Agreement and the same provision as applied to other circumstances will remain in effect to the maximum extent legally permissible.