THIS IS A LEGAL AGREEMENT BETWEEN YOU AND UTU, INC., DOING BUSINESS AS UPTOUS. BY USING THE SERVICE, YOU SIGNIFY YOUR AGREEMENT WITH THE TERMS AND CONDITIONS CONTAINED IN THIS DOCUMENT, WHETHER OR NOT YOU ARE A REGISTERED MEMBER. ANY REFERENCE TO "UpToUs" IN THIS AGREEMENT INCLUDES ANY DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, OWNERS, AGENTS, LICENSORS OR LICENSEES OF UpToUs. AS USED IN THIS AGREEMENT, THE WORDS "YOU" AND "YOUR" REFER TO YOU AS THE PARTY AGREEING TO THE TERMS AND CONDITIONS TO USE THE SERVICE; THE WORDS "WE", "US", "OUR" AND ANY OTHER VARIATION THEREOF REFER TO UpToUs.
1. ACCEPTANCE OF TERMS
UpToUs provides its service to you, subject to the following Agreement, which may be updated by us from time to time. This Agreement constitutes the entire agreement between you and UpToUs and supercedes all other agreements or understanding, written or oral, regarding this Service. UpToUs may modify the terms of this Agreement, and may discontinue or revise any or all other aspects of the Service in its sole and absolute discretion and without prior notice.
You agree that UpToUs does not need to notify you of any changes to this Agreement. You can review the most current version of the Agreement online at any time.
2. DESCRIPTION OF SERVICE
UpToUs provides you with access to an online business directory and coupon management tool. The directory is promoted by UpToUs to its users and school network (the "Service"). In order to provide you with the Service, UpToUs will collect the information necessary to provide the Service. You agree that your provision of personal information is your signature and authorization for UpToUs to use that information in order to provide the Service. If you grant access to the information to others, you also explicitly authorize those third parties to access and use your personal information on your behalf based on your relationship with that third party. If you are the third party receiving such information, you warrant that you have established legal relationship to access and use such information.
3. LISTING YOUR BUSINESS IN THE UPTOUS DIRECTORY
Your business banner including coupon offers will be activated and displayed as soon as you enroll to automated payments through your business portal. Your account will remain active as long as your enrollment is valid and payment can be processes by UpToUs, this Agreement is not violated and the Agreement was not terminated by you or by UpToUs for any reason. You can change/edit your listing anytime by logging in to your account. However, UpToUs reserves the right to change the look and feel of business banners as UpToUs deems appropriate, in its sole discretion. UpToUs also reserves the right, in its sole discretion, to remove your business from the Directory, move the listing to a different category or subcategory, and change or remove any keywords at any time, for any reason.
5. MEMBER ACCOUNT, PASSWORD AND SECURITY
During the registration process, you will create a password. You will access your account by providing your email address and your password. You hereby confirm that you are responsible for maintaining the confidentiality of the password, and are fully responsible for all activities that occur under your password or account.
You agree to: (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site ("Registration Data"); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other information you provide to UpToUs, to keep it accurate, current and complete; (d) be fully responsible for all use of your account and for any actions that take place using your account; (e) notify us immediately of any unauthorized use of your password or account, or if you believe your password has been lost or stolen or any other breach of security; and (f) accept responsibility for all usage of the Service and any fees associated with use of other services accessed through the Service on your account whether or not authorized by you.
UpToUs cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 4.
This Agreement will be in effect from the date you sign up to UpToUs. Either you or UpToUs may terminate this Agreement at any time with or without notice. The provisions and all obligations of and restrictions on you and any user of your account with respect to the Service shall survive any termination of this Agreement.
You agree that UpToUs, in its sole and absolute discretion, may terminate your password, account (or any part thereof) or use of the Service, for any reason, including, without limitation, for lack of use or if UpToUs believes that you have violated or acted inconsistently with the letter or spirit of the Agreement. UpToUs may also, in its sole and absolute discretion, and at any time, discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that UpToUs may immediately deactivate or delete your account and all related information and files in your account and/or prohibit any further access to all files or the Service by you. Further, you agree that UpToUs shall not be liable to you or any third party for any termination of your access to the Service.
You agree to indemnify and hold UpToUs, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the Service, your connection to the Service, your violation of the Agreement, or your violation of any rights of another.
UpToUs makes no representation or warranty of any kind whatsoever as to the accuracy, truthfulness, usefulness, timeliness or completeness of any of the content provided in the Site. Further, any information accessible or made available through this Site may contain errors, defects or be unreliable, and UpToUs makes no effort to review, check or verify information accessible or made available through this Site. UpToUs assumes no responsibility for the accuracy, truthfulness or usefulness of the information or other content on this Site or accessible though this Site, and UpToUs shall have no responsibility to correct or update any data, information or content on this Site. You assume full and complete responsibility for reviewing and verifying any and all data, information, and content, including without limitation its usefulness, truthfulness, accuracy, completeness or currency. You are responsible for verifying the accuracy, completeness, truthfulness, timeliness, usefulness and value to you to whatever extent you deem necessary, and you shall indemnify and hold UpToUs, its agents, employees, officers, directors, partners, subsidiaries and affiliates harmless from and against any and all liability, loss, damage, claim, cost, expense, including, without limitation, attorneys and accountants' fees and costs caused by your reliance on any content contained on this Site or accessible or made available through this Site.
THE SERVICE, INFORMATION, DATA, FEATURES AND ALL CONTENT, IS OFFERED AND MADE AVAILABLE HEREIN ON AN "AS IS" BASIS. IN NO EVENT SHALL UPTOUS BE LIABLE TO YOU, YOUR COMPANY, EMPLOYEES, AGENTS, THIRD PARTIES, ASSOCIATES, PARTNERS, OR ANYONE ELSE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR INDIRECT DAMAGES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION THOSE RESULTING FROM LOSS OR IMPAIRMENT OF USE, DATA, OR PROFITS, YOU OR ANYONE ELSE MAY INCUR RELATING TO YOUR USE OR ACCESS TO THIS SITE, OR THE USE OR ACCESS HERETO BY ANYONE ELSE, EVEN IF ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES, AND AS A CONDITION TO USE OR ACCESS ANY SUCH INFORMATION, YOU EXPRESSLY WAIVE ANY AND ALL CLAIMS YOU MAY HAVE OR ASSERT AGAINST UPTOUS RELATING DIRECTLY OR INDIRECTLY TO ACCESSING OR USING OR RELIANCE UPON ANY SUCH INFORMATION OR DATA BY YOU OR ANYONE ELSE. THE TERM "DAMAGES' AS USED HEREIN INCLUDES, WITHOUT LIMITATION, ANY AND ALL LIABILITY, LOSS, DAMAGE, INJURY, CLAIM, FOUNDED OR UNFOUNDED, EXPENSE, FEE OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ATTORNEYS OR ACCOUNTANTS FEES.
UPTOUS MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER REGARDING ANY CONTENT CONTAINED ON THIS SITE, INCLUDING, WITHOUT LIMITATION, SERVICE, NEWS, DATA, INFORMATION OR CONTENT OF ANY KIND, OF THE USEFULNESS, RELIABILITY, TRUTHFULNESS, ACCURACY, TIMELINESS OR COMPLETENESS TO YOU OR ANYONE ELSE, INCLUDING WITHOUT LIMITATION WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR PARTICULAR PURPOSE OR USE, WARRANTY OF NON-INFRINGEMENT, WARRANTY OF TITLE, OR WARRANTY OF ANY KIND.
UPTOUS MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND THAT THIS SITE OR ANY CONTENT HEREIN ARE FREE OF OR FROM TECHNOLOGICALLY UNSTABLE FILES OR CHARACTERISTICS, OR BUGS, VIRUSES, ERRORS, DEFECTS, PROBLEMS, TROJAN HORSES, WORMS, OTHER LIMITATIONS OR OTHER CODES OR DEFECTS THAT MAY HAVE CONTAMINATING OR DESTRUCTIVE PROPERTIES OR CHARACTERISTICS OR ADVERSE EFFECTS ON YOUR SOFTWARE OR HARDWARE. YOU ASSUME ALL RISKS AND RESPONSIBILITY FOR USE OR RELIANCE UPON THIS SITE OR ANY INFORMATION OR DATA SET FORTH HEREIN.
IF YOU ARE DISSATISFIED WITH THIS SITE OR ANY FEATURES OR INFORMATION HEREIN OR ACCESSIBLE HEREFROM, OR ANY OF THE AGREEMENT, OR OPERATION OF THE SITE OR ANY OF ITS FEATURES, YOUR SOLE REMEDY SHALL BE TO DISCONTINUE USE OF THE SITE AND ITS FEATURES.
9. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT UPTOUS SHALL NOT BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (EVEN IF UPTOUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING IN CONNECTION WITH THIS SERVICE OR ANY LINKED SITE OR USE THEREOF OR INABILITY TO USE BY ANY PARTY, OR IN CONNECTION WITH ANY FAILURE OR PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, VIRUS, NETWORK OR SYSTEM FAILURE OR RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE TIMELINESS OR ACCURACY OF SERVICE (iii) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (v) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (vi) ANY OTHER MATTER RELATING TO THE SERVICE.
In the event that a court should hold that the limitations of liabilities or remedies available as set forth in this Agreement, or any portions thereof, are unenforceable for any reason, or that any of your remedies under this Agreement fail of their essential purpose, you expressly agree that under no circumstances shall UpToUs's total liability to you or any party claiming by, through or under you for any cause whatsoever, and regardless of the form of action, whether in contract or in tort, including negligence or strict liability, in the aggregate, exceed $100 (U.S.). If your Account Login Information is improperly disclosed to a third party without your consent, and this disclosure is the direct result of UpToUs's gross negligence in operating the Service, then you and UpToUs agree that UpToUs's liability for your direct and actual damages in this circumstance shall not, in the aggregate, exceed $100 (U.S.).
10. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH STATES LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 7 AND 8 MAY NOT APPLY TO YOU.
11. REMEDIES OF USER
Your sole and exclusive remedy for any failure or non-performance of the Service including any associated software or other materials supplied in connection with the Service shall be for UpToUs to use commercially reasonable efforts to effectuate an adjustment or repair of the Service.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
12. MODIFICATIONS TO SERVICE
UpToUs reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that UpToUs shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
13. NO UNLAWFUL OR PROHIBITED USE
As a condition of your use of the Service, you represent and warrant to UpToUs that you will not use the Service for any purpose that is unlawful or prohibited by this Agreement. You may not use the Service in any manner which could damage, disable, overburden, or impair the Service. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Service.
In addition, you agree not to use the Service or the Site to:
* harvest or collect email addresses or other contact information of other users from the Service or the Site by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
* use automated scripts to collect information from or otherwise interact with the Service or the Site;
* upload, post, transmit, share, store or otherwise make available any content that we deem to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable;
* register for more than one user account, register for a User account on behalf of an individual other than yourself, or register for a User account on behalf of any group or entity;
* impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age or your affiliation with any person or entity;
* upload, post, transmit, share or otherwise make available any unsolicited or unauthorized advertising, solicitations, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
* upload, post, transmit, share, store or otherwise make publicly available on the Site any private information of any third party, including, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
* solicit personal information from anyone under 18 or solicit passwords or personally identifying information for commercial or unlawful purposes;
* upload, post, transmit, share or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
* intimidate or harass another;
* upload, post, transmit, share, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
* use or attempt to use another's account, service or system without authorization from the Company, or create a false identity on the Service or the Site.
* upload, post, transmit, share, store or otherwise make available content that, in the sole judgment of UpToUs, is objectionable or which restricts or inhibits any other person from using or enjoying the Site, or which may expose Company or its users to any harm or liability of any type.
Without limiting any of the foregoing, you also agree to abide by our UpToUs Code of Conduct that provides further information regarding the authorized conduct of users on UpToUs.
The Service may provide, or third parties may provide, links to other sites or resources. Because UpToUs has no control over these sites and resources, you acknowledge and agree that UpToUs is not responsible for the availability of these external sites or resources, and has not and does not endorse, review or approve, and is not responsible or liable for any content, advertising, products, or other materials on or available from these sites or resources. You link to other sites at your own risk.
15. INTELLECTUAL PROPERTY
All content on this Service, including, without limitation, any and all materials, information, text, data, contents, names, trade names, trademarks, trade dress, service marks, lay out, logos, designs, images, graphics, illustrations, artwork, icons, photographs, displays, sound, music, video, animation, organization, assembly, arrangement, and all intellectual property of any kind whatsoever, is owned exclusively by UpToUs and is protected by U.S. and international copyright and intellectual property laws. All rights are hereby reserved. Without limiting the foregoing, no content on this Service may be copied, reproduced, duplicated, published, or distributed in any form or by any means whatsoever without the express prior written permission of UpToUs.
UpToUs and other Company graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, trademarks or trade dress of UpToUs in the U.S. and/or other countries. UpToUs' trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of UpToUs.
UpToUs grants you a personal, non-transferable and non-exclusive right and license to use the object code of its software on a single computer and access the Service; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the software. You agree not to modify the software in any manner or form, or to use modified versions of the software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by UpToUs for use in accessing the Service.
You are solely responsible for the photos, profiles (including your name, image, and likeness), messages, notes, text, information, listings, and other content that you upload, publish or display (hereinafter, "post") on or through the Service or the Site, or transmit to or share with other users (collectively the "User Content"). You may not post, transmit, or share User Content on the Site or Service that you did not create or that you do not have permission to post. You understand and agree that UpToUs may, but is not obligated to, review the Site and may delete or remove (without notice) any Site Content or User Content in its sole discretion, for any reason or no reason, including User Content that in the sole judgment of UpToUs violates this Agreement or the UpToUs Code of Conduct, or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of users or others. You are solely responsible at your sole cost and expense for creating backup copies and replacing any User Content you post or store on the Site or provide to UpToUs.
The Service and the Site are available for your personal, non-commercial use only. You represent, warrant and agree that no materials of any kind submitted through your account or otherwise posted, transmitted, or shared by you on or through the Service will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material.
Any feedback, questions, comments, suggestions, ideas or the like, which you send to UpToUs will be treated as being non-confidential and nonproprietary. UpToUs will also be free to use any ideas, concepts, know-how or techniques contained in all the information you provide, upload or post to the Site for any purpose, whatsoever, including, but not limited to, developing, manufacturing and marketing products and services incorporating all information. Any submission to this Service shall be deemed and remain the property of UpToUs. UpToUs shall be free to use, for any purpose, any idea, concepts, know-how or techniques contained in information that you provide us.
All product and service marks contained on or associated with the Service that are not UpToUs Marks are the trademarks of their respective owners. References to any names, marks, products or services of third parties or hypertext links to third party site or information do not necessarily constitute or imply UpToUs's endorsement, sponsorship or recommendation of the third party, information, product or service.
18. MOBILE SERVICES
The Service may includes certain services that are available via your mobile phone, including (i) the ability to upload content to UpToUs via your mobile phone (Mobile Uploads), (ii) the ability to receive and reply to messages using text messaging (Mobile Texts), and (iii) the ability to browse UpToUs from your mobile phone (collectively the "Mobile Services"). We do not intend to charge for these Mobile Services. However, your carrier's normal messaging, data and other rates and fees will apply. You should check with your carrier to find out what plans are available and how much they cost. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you should check with your carrier to find out if the Mobile Services are available for your mobile devices, and what restrictions, if any, may be applicable to your use of such Mobile Services. By using the Mobile Services, you agree that we may communicate with you by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us.
Notices to you may be made via mail or email. The Service may also provide notices of changes to the Agreement, Service or other matters by displaying notices or links to notices generally on the Service.
20. JURISDICTION; GOVERNING LAW
This Agreement shall be deemed and treated as though they were entered into, executed, and performed solely in California, and the laws of the State of California, without regard for conflict of law rules thereof, apply to all matters relating to use of this Service and shall without limitation govern this Agreement. You agree by use of this Service you do hereby submit to jurisdiction of the courts of California with appropriate subject matter jurisdiction and that any conflict brought or filed with respect to use of this Service or concerning this Agreement shall be brought in a court of competent jurisdiction in Santa Clara County, California. In any legal action relating to enforcement or breach of this Agreement, the prevailing party shall be entitled to recovery of costs, fees and expenses of any action, including, without limitation, attorney fees and accounting fees.
This Agreement shall be interpreted according to their fair meaning and shall not be interpreted strictly against or for either party. This Agreement constitutes the entire agreement with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals, whether, electronic, oral or written, between UpToUs and the user of this Service. Headings used herein are for convenience only and shall not limit, control or add to the meaning of any term, provision or condition.
UpToUs may notify user in writing or electronically either of which shall be deemed fully and completely adequate and effective to notify user of the contents therein at the time sent to the last address or email address supplied by user in writing or electronically to UpToUs.