UpMetrics | Terms of Use
SportUp, Inc.
Terms of Use
These Terms of Use were last modified on October 3, 2018
1. Introduction
SportUp, Inc. d/b/a UpMetrics (“We,” “Our,” “Us,” the “Company”) provides a platform that streamlines logistics and empowers organizations to collect, interpret, and leverage their data through Our websites, http://www.UpMetrics.com and http://www.UpActive.com (the “Sites”). The terms and conditions on this page (collectively, these “Terms”) govern Your access to and use of Our Sites, Our online and/or mobile services and any related software provided on or in connection with the foregoing(including, without limitation, Our Mobile Applications (as defined below)) (collectively, the “Service”). These Terms apply to all visitors, users, and others who access the Service (collectively, “Users”), including the person agreeing to these Terms (“You” or “Your”), whether or not You are a registered User of the Service. These Terms constitute a binding legal agreement between You and Company. These Terms may be modified or supplemented by one or more separate agreements entered into between the Company and You regarding Your purchase of the Service (each a “Supplemental Agreement”). To the extent there is any inconsistency between these Terms and the Supplemental Agreement, the Supplemental Agreement will govern.
Please read the Terms carefully. You acknowledge and agree that by clicking a button or checking a box marked “I Agree” (or something similar), by entering into a Supplemental Agreement with Company or by otherwise accessing or using the Service, You signify that You have read, understand, and agree to be bound by these Terms and to the collection and use of Your information as set forth in Our Privacy Policy, which can be found at https://www.UpMetrics.com/privacy-policy and is incorporated by reference into these Terms. If You do not agree to these Terms then You have no right to access or use the Service.
2. The Service
2.1. Eligibility. You may use the Service only if You can form a binding contract with Company, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. The Service is not available to any users previously removed from the Service by Company.
2.2. Limited License. Subject to the terms and conditions of these Terms, You are hereby granted a non-exclusive, limited, non-transferable license to use the Service for Your personal, noncommercial use only and only as permitted by the features of the Service. Company reserves all rights not expressly granted herein in the Service and the Company Content (as defined below) and Company may terminate this license at any time for any or no reason.
2.3. Accounts. In order to access the Service, You must register to create an account (“Account”). During the registration process, You will be required to provide certain information and You will establish a password. Please create a unique and complex password for Your Account, and keep this password secure. You may connect to the Service through a third-party service; provided that, by connecting to the Service with a third-party service, You give Us permission to access and use Your information from that service as permitted by that service, and to store Your log-in credentials for that service. You may never use another User’s Account without permission. The Company reserves the right to suspend or terminate Your Account at any time, if We believe You have violated any part of these Terms or Your Supplemental Agreement. You agree to take sole responsibility for any activities or actions under Your Account, whether or not You have authorized such activities or actions. You will immediately notify the Company of any unauthorized use of Your Account at support@UpMetrics.com.
2.3.1. Account Types. We maintain different types of Accounts for different types of Users. If You open an Account on behalf of a company, school, organization, or other legal entity (“Organization”), then (i) “You” and “Your” includes You, that Organization, and any and all Authorized Users (as defined in this Section 2.3.1) and (ii) You represent and warrant that You are an authorized representative of the Organization with the authority to bind the Organization to these Terms, and that You agree to these Terms on the Organization’s behalf. You acknowledge and agree that if You are opening an Account or otherwise using the Service as or on behalf of an Organization, Your employees, consultants, contractors, customers, agents and any other User authorized to use the Service in connection with Your or Your Organization’s account (collectively, “Authorized Users”) must create their own Accounts and must separately agree to be bound by these Terms.
2.4. Fee and Payment
2.4.1. Paid Features. Certain aspects of the Service may be provided for a fee or other charge. If You elect to use paid aspects of the Service, You agree to the pricing and payment terms included in these Terms as We may update them from time to time. Company may add new services for additional fees and charges, and add or amend fees and charges for existing services, at any time in its sole discretion.
2.4.2. Free Trials. From time to time, to the extent legally permitted, We may offer free trials of certain features for specified periods of time without payment (each a “Free Trial”). If We offer You a Free Trial, the terms of that Free Trial will be provided to You. Free Trials are limited to one (1) per Account unless otherwise agreed to by Us. ONCE YOUR FREE TRIAL ENDS, WE (OR OUR PAYMENT PROCESSOR) WILL BEGIN BILLING YOUR DESIGNATED PAYMENT METHOD FOR THE THEN-CURRENT PRICE FOR THE APPLICABLE SUBSCRIPTION PLAN (PLUS ANY APPLICABLE TAXES AND OTHER CHARGES) ON A RECURRING BASIS FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, UNLESS YOU CANCEL YOUR SUBSCRIPTION PRIOR TO THE END OF YOUR FREE TRIAL. INSTRUCTIONS FOR CANCELING YOUR SUBSCRIPTION ARE SET FORTH IN SECTION 2.4.5. PLEASE NOTE THAT YOU WILL NOT RECEIVE A NOTICE FROM US THAT YOUR FREE TRIAL HAS ENDED OR THAT THE PAID PORTION OF YOUR SUBSCRIPTION HAS BEGUN. WE RESERVE THE RIGHT TO MODIFY OR TERMINATE FREE TRIALS AT ANY TIME, WITHOUT NOTICE AND IN OUR SOLE DISCRETION.
2.4.3. Subscription Services. Company may offer certain features of the Service on a paid, automatically renewing subscription basis (“Subscription Services”). ALL SUBSCRIPTION SERVICES WILL AUTOMATICALLY RENEW AT THE END OF THE TERM IF YOU DO NOT CANCEL PRIOR TO THE END OF THE SUBSCRIPTION TERM. When You purchase any of Our Subscription Services, You expressly acknowledge and agree that (1) Company is authorized to charge You a monthly subscription service fee (in addition to any applicable taxes) for as long as Your subscription continues, and (2) Your subscription is continuous until You cancel it or such Subscription Service is suspended, discontinued or terminated in accordance with these Terms. UNLESS OTHERWISE INDICATED IN ANY APPLICABLE TERMS OR COMMUNICATIONS WE SEND TO YOU, SUCH RENEWAL WILL BE AT THE SAME SUBSCRIPTION FEE AS WHEN YOU FIRST SUBSCRIBED, PLUS ANY APPLICABLE TAXES, UNLESS WE NOTIFY YOU AT LEAST TEN (10) DAYS PRIOR TO THE END OF YOUR THEN-CURRENT SUBSCRIPTION TERM THAT THE SUBSCRIPTION FEE WILL INCREASE. YOU ACKNOWLEDGE THAT YOUR SUBSCRIPTION IS SUBJECT TO AUTOMATIC RENEWALS AND YOU CONSENT TO AND ACCEPT RESPONSIBILITY FOR ALL RECURRING CHARGES TO YOUR CREDIT OR DEBIT CARD (OR OTHER PAYMENT METHOD, AS APPLICABLE) BASED ON THIS AUTOMATIC RENEWAL FEATURE WITHOUT FURTHER AUTHORIZATION FROM YOU AND WITHOUT FURTHER NOTICE EXCEPT AS REQUIRED BY LAW. YOU FURTHER ACKNOWLEDGE THAT THE AMOUNT OF THE RECURRING CHARGE MAY CHANGE IF THE APPLICABLE TAX RATES CHANGE OR IF YOU ARE NOTIFIED THAT THERE WILL BE AN INCREASE IN THE APPLICABLE SUBSCRIPTION FEES.
2.4.4. Payment and Billing; Taxes. All information that You provide in connection with a purchase or transaction or other monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of Your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. For Subscription Services, We automatically charge the payment method associated with Your Account in accordance with the billing term You select at the time You order Subscription Services. Day one of Your billing cycle is tied to the date Your Subscription Services are activated. You acknowledge that the amount billed may vary due to promotional offers, changes in Your Subscription Services plan and changes in applicable taxes, and You authorize Us to charge Your payment method for the corresponding amounts. You further acknowledge that the amount of the recurring charge may change if the applicable tax rates change or if You are notified that there will be an increase in the applicable subscription fees. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
2.4.5. Cancellations and Refunds. You may cancel Your Subscription Services at any time by logging into Your Account and selecting "Cancel Subscription." You may cancel Your Account at any time; however, there are no refunds for cancellation. In the event that Company suspends or terminates Your Account or these Terms, You understand and agree that You shall receive no refund or exchange for any Company Property, any unused Subscription Services, any license or subscription fees for any portion of the Service, any content or data associated with Your Account, or for anything else.
2.4.6. California Residents. The provider of Service is SportUp, Inc. If You are a California resident, in accordance with Cal. Civ. Code §1789.3, You may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
2.5. Changes to the Service. We may, without prior notice, change the Service; stop providing the Service or features of the Service, to You or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend Your access to the Service without notice and liability for any reason, including if in Our sole determination You violate any provision of these Terms, or for no reason. Upon termination for any reason or no reason, You continue to be bound by these Terms.
2.6. Service Location. The Service is controlled and operated from facilities in the United States. Unless otherwise agreed to in a Supplemental Agreement, Company makes no representations that the Service is appropriate or available for use in other locations and those who access or use the Service from other jurisdictions do so at their own volition. You are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if You are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated in the Service or agreed to in a Supplemental Agreement, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
3. Changes to these Terms
Company may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to You via email notice, written or hard copy notice, or through posting of such notice on Our Service, as determined by Company in Our sole discretion. Company reserves the right to determine the form and means of providing notifications to Our Users, provided that You may opt out of certain means of notification as described in these Terms. Company is not responsible for any automatic filtering You or Your network provider may apply to email notifications We send to the email address You provide Us. Company may, in its sole discretion, modify or update these Terms from time to time, and so You should review this page periodically. When We change these Terms in a material manner, We will update the ‘last modified’ date at the top of this page and notify You that material changes have been made to these Terms. Your continued use of the Service after any such change constitutes Your acceptance of the new Terms. If You do not agree to any of these terms or any future Terms, do not use or access (or continue to access) the Service.
Notwithstanding the foregoing, Company shall not make any material change to these Terms that relate to the collection or use of Your Student Data without first giving notice to You and providing a choice before the Student Data is used in a materially different manner than was disclosed when the information was collected. For further details, see the “Student Data” section below.
4. User Content
Some areas of the Service allow Users to submit, post, display, provide, or otherwise make available content such as profile information, videos, images, music, comments, questions, and other content or information (any such materials a User submits, posts, displays, provides, or otherwise makes available on the Service are referred to as “User Content”).
We claim no ownership rights over User Content created by You. The User Content You create remains yours. However, You understand that certain portions of the Service may allow other Users to view, edit, share, and/or otherwise interact with Your User Content. By providing or sharing User Content through the Service, You agree to allow others to view, edit, share, and/or interact with Your User Content in accordance with Your settings and these Terms. Company has the right (but not the obligation) in its sole discretion to remove any User Content that is shared via the Service.
By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the Service, You hereby expressly grant, and You represent and warrant that You have all rights necessary to grant, to Company a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and Your name, voice, and/or likeness as contained in Your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service. You also hereby grant each User of the Service a non-exclusive license to access Your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under these Terms.
For the purposes of these Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with Your User Content, You affirm, represent and warrant the following:
5. Service and Content Rules
5.1. Appropriate Conduct. You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Company servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser and/or mobile device / application (except that Company grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Company Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at Our sole discretion an unreasonable or disproportionately large load on Our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting Your affiliation with a person or entity, conducting fraud, hiding or attempting to hide Your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures We may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
5.2. Appropriate Content. Users have the ability to send communications to certain other Users as a feature of the Service. You acknowledge and agree that Company does not monitor or filter communications or data transmitted through the Service and that We shall not be responsible for the content of any such communications or transmissions. You shall not use the Service to send any communications that disparage any individual or group. You shall not use the Service to bully, harass, intimidate, or otherwise offend any individual or group and You agree not to engage in any behavior or to instigate or participate in any communication via the Service that violates the law. If You believe someone may have sent an offensive or illegal communication via the Service, please notify Us immediately at support@upmetrics.com.
6. Customer Data
6.1. Customer Data Ownership and License. Some areas of the Service may allow the Company to collect personal information from or about Your Authorized Users, current or potential customers, or other individuals (collectively, “Customer Data”). As between You and Company, You own and shall retain all right, title and interest (including all Intellectual Property Rights) in and to Customer Data; however, by submitting or causing to be submitted Customer Data to Company, You hereby grant, and represent and warrant that You have all rights necessary to grant, all rights and licenses to the Customer Data required for Company and its subcontractors and service providers to provide the Service.
6.2. Customer Data Restrictions. You may not submit, or cause to be submitted, any Customer Data that includes a social security number, passport number, driver’s license number, or similar identifier, credit card or debit card number, employment, financial or health information, or any other information which may be subject to specific data privacy and security laws including, but not limited to, the Gramm-Leach-Bliley Act (“GLBA”), or the Health Insurance Portability and Accountability Act (“HIPAA”), or which could give rise to notification obligations under data breach notification laws, without Company’s prior written approval.
6.3. Responsibility for Customer Data. Company will not be responsible for any backup, recovery or other steps required to ensure that Customer Data is recoverable in the case of data loss. You are solely responsible for backing up Your Customer Data on a regular basis, and taking appropriate steps to safeguard and ensure the integrity of Your Customer Data. In addition to the foregoing, if You are an Organization providing access to the Service to Authorized Users, as between You and the Company, You are solely responsible for any and all Customer Data You or Your Authorized Users provide and/or cause to be provided to the Service, and the consequences of providing, posting or transmitting such Customer Data, including responsibility for compliance with breach notification laws. The Company’s commercially reasonable efforts to restore lost or corrupted Customer Data pursuant to this section shall constitute Our sole liability and Your sole and exclusive remedy in the event of any loss or corruption of Customer Data.
6.4. Data Security. We have implemented a variety of physical, administrative and technological safeguards designed to preserve the integrity and security of the personal information we collect and to protect against unauthorized access to such information. These include internal reviews of our data collection, storage, and processing practices and security measures, as well as physical security measures to guard against unauthorized access to systems where we store personal data. We restrict access to personal information to Company employees, contractors, and agents who need to know that information in order to operate, develop, or improve our services. Our employees may be subject to disciplinary action, including termination, if they fail to meet privacy and confidentiality obligations. To the extent we rely on third-party technology vendors (“Service Providers”) to provide Service to You, Company adequately vets and manages such Service Providers to require privacy and confidentiality terms no less protective than those provided by Company.
6.5. You (not Company) bear sole responsibility for adequate security and protection of Customer Data when in Your or Your Authorized Users’ possession or control. We are not responsible, and You are fully responsible, for what Your Authorized Users do with Customer Data. For that reason, We advise you to take reasonable security precautions to protect your information, including, but not limited to, encrypting information prior to transmitting it to Company. Where we have given you (or where you have chosen) a password for access to certain parts of our Service, you are responsible for keeping this password confidential. We ask you not to share your password with anyone, and to regularly change your password using best practices on password complexity.
7. Personal Information; Student Data
7.1. Student Data; Ownership and Control. Some areas of the Service may allow the Company to collect or receive Student Data that is provided by an Organization or Authorized User. “Student Data” is personal information that is directly related to an identifiable student and may include “educational records” as defined by the Family Educational Rights and Privacy Act (“FERPA”). You or Your Organization, and not Company, owns and controls the Student Data. You authorize Company to access, collect, transmit, modify, display and store Student Data for the purpose of providing the Service and as described in these Terms and in Our Privacy Policy. If You are a school or other educational institution, Company shall access and process Student Data as a School Official with a legitimate educational interest in the Student Data pursuant to FERPA.
7.2. Student Data Access. You authorize Company to access or collect Student Data for the purpose of providing the Service. You may provide Student Data manually or permit Company to access Student Data automatically, if Your Organization chooses to integrate its Student Information System (“SIS”) with the Service. You additionally authorize Company to collect Student Data directly from students authorized to use the Service. You represent and warrant that You have the authority to provide Student Data to the Service and that You have provided appropriate disclosures to the appropriate individuals regarding Your sharing of Student Data with the Company for this purpose.
7.3. Compliance with Laws. Individually and collectively with Our customers and Authorized Users, We agree to uphold Our obligations under FERPA, the Protection of Pupil Rights Amendment (“PPRA”), the Children’s Online Privacy Protection Act (“COPPA”), applicable State laws relating to student data privacy, and with all other laws and regulations governing the protection of personal information.
7.4. Use of Student Data. By submitting or providing Us access to Student Data, You agree that Company may use the Student Data solely for the purposes of (i) providing the Service, (ii) improving and developing Our Service, (iii) enforcing Our rights under these Terms, and (iv) as permitted with Our customer’s or the Authorized User’s consent. You agree that both before and after the term of these Terms, Company may collect, analyze and use data derived from Student Data as well as data about users’ access and use of the Service, for the purpose of operating, analyzing, improving or marketing the Service, developing new products or services, conducting research or other purposes, provided that Company may not share or publicly disclose information that is derived from Student Data unless such data is de-identified and/or anonymized such that it cannot reasonably identify a specific individual.
7.5. Restrictions on the use of Student Data. Company is prohibited from using Student Data to (a) direct targeted online advertising to students, (b) develop a profile of a student or other individual other than for the purpose of providing educational services or as authorized by Our customer; (c) for any other commercial purpose unless authorized by Our customer or permitted by law.
7.6. Disclosure of Student Data to Third Parties. You acknowledge and agree that Company may provide access to Student Data to Our employees and service providers, which have a legitimate need to access such information in order to provide their services to Us. Company and Our employees, affiliates, service providers, or agents involved in the handling, transmittal, and processing of Student Data will be required to maintain the confidentiality of such data. Company may share Student Data with third parties through the Service as directed by an Authorized User with authority over such Student Data. You acknowledge that Company is not responsible for the data practices of third parties with whom You elect to share Student Data through the Service, and that You are solely responsible for the third party content and the consequences of providing or transmitting Student Data to such third parties, or authorizing those third parties to access Student Data through the Service.
7.7. Student Data Access and Deletion Requests. Company shall delete Student Data upon request from an Organization or Authorized User with authority over such Student Data, except that Company shall not be required to delete content a student shared to public areas of the Service or content a student has saved to a personal family account on the Service. A parent or student over the age of 18 seeking to access, modify, correct, or delete Student Data will be instructed to contact the Organization or Authorized User to discuss data deletion or modification. Unless otherwise specified in writing, Company shall delete or de-identify Student Data within accordance with Company’s data deletion and destruction practices after termination of the Organization’s agreement.
7.8. Data Security and Breach Notification. Company has implemented administrative, physical and technical safeguards designed to secure the Student Data in Company’s possession and control from unauthorized access, disclosure and use. In the event that an unauthorized party gains access to or has been disclosed personal information (a “Security Incident”), Company shall promptly notify the Organization or Authorized User. If, due to a Security Incident which is caused by the acts or omissions of Company or its agents, a notification to an individual, organization or government agency is required under applicable privacy laws, You or Your Organization shall be responsible for the timing, content, and method of any such legally-required notice and compliance with such laws and Company shall indemnify You or Your Organization for the reasonable costs related to legally-required notifications. With respect to any Security Incident which is not caused by the acts or omissions of Company or its agents, Company shall reasonably cooperate with Your investigation of the Security Incident, at Your request and at Your reasonable expense, but Company shall not indemnify You for costs associated with the Security Incident.
7.9. Terms of Use Changes with Respect to Student Data. Company shall use its best efforts to provide at least thirty (30) days’ notice of a Terms of Service change that may involve collecting, using, storing, or sharing Student Data in a materially different way than was disclosed in the previous Terms of Service, so that You have sufficient time to evaluate the change in practice. If You do not choose to accept the changes, You may opt-out by deleting Your account before the changes take effect.
8. DMCA Notice
Since We respect artist and content owner rights, it is Company’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If You believe that Your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Company’s copyright agent as set forth in the DMCA. For Your complaint to be valid under the DMCA, You must provide the following information in writing:
Under federal law, if You knowingly misrepresent that online material is infringing, You may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees.
Please note that this procedure is exclusively for notifying Company and its affiliates that Your copyrighted material has been infringed. The preceding requirements are intended to comply with Company’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding Your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Company has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Company may also at its sole discretion limit access to the Service and/or terminate the Accounts of any Users who infringe any Intellectual Property Rights of others, whether or not there is any repeat infringement.
9. Marketing License
You grant to the Company a non-exclusive, limited right to use Your name, trademarks, and logos (collectively, the “Customer Marks”) in the production of marketing materials identifying You as Our customer. Such marketing materials may include but not be limited to The Company’s websites, brochures, press releases, trade show displays, and presentations. In addition, You grant to the Company the right to publicly acknowledge You as Our customer.
10. Responsibilities for Calls and Messaging
To the extent applicable to Your use of the Service, You shall at all times comply with the CAN SPAM Act of 2003, the Telephone Consumer Protection Act (47 U.S.C. §227), the Do-Not-Call Implementation Act and the Do-Not-Call list registry rules (http://www.donotcall.gov), the Telemarketing Sales Rule, 47 C.F.R. § 64.1200 et seq, and all other state or local laws, rules, regulations, and guidelines relating to calling or texting, including without limitation, rules, regulations and guidelines set forth by the Federal Trade Commission and the Federal Communications Commission (collectively, the “Calling Laws”). You agree that, as between the parties, You are the initiator of any call, SMS/MMS message, or other communication transmitted through the Service and for all content relating to, inducing, or encouraging calls, SMS/MMS messages or other communications to take place. Company is not responsible for reviewing the contents of any communication transmitted through the Service or transmitted by You related to Your use of the Service, nor is it responsible for obtaining any necessary consents or permissions from the message recipients.
11. Students Under FERPA
If You are a school or school district, or are otherwise subject to the provisions of FERPA, this section applies to You. Under certain circumstances, You may provide information to the Company that includes personally identifiable information from education records that are subject to FERPA (“FERPA Records”). If You are regulated by FERPA, You agree that You are familiar with and agree to be responsible for compliance with FERPA and all other laws, rules or regulations concerning the collection, use, and disclosure of FERPA Records, including, without limitation, any FERPA Records that You or Authorized Users may input into, access, or obtain from the Service.
In the event that You are regulated by FERPA, You and the Company agree as follows: (i) You have designated the Company as a “school official” as that term is used in FERPA, and You have determined that the Company has a “legitimate educational interest” for the purpose of carrying out its responsibilities relating to the Service; (ii) We acknowledge that We shall be bound by all relevant provisions of FERPA and agree that FERPA Records obtained from You in connection with the Service will not be disclosed by the Company to third parties, except as expressly provided for in FERPA, and will be used only to fulfill the Company’s responsibilities relating to the Service. In accordance with FERPA, You and the Company agree that any consents to disclose information may be made electronically.
12. Proprietary Rights
Subject to the limited rights expressly granted hereunder, the Company and its licensors exclusively own and retain all rights, title, and interest in and to the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Authorized Users (the “Company Content”), and all Intellectual Property Rights related thereto. Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such Intellectual Property Rights, and You agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Company Content. Use of the Company Content for any purpose not expressly permitted by these Terms is strictly prohibited.
You may choose to or We may invite You to submit comments or ideas about the Service, including without limitation about how to improve the Service or Our products (“Feedback”). By submitting any Feedback, You agree that Your disclosure is gratuitous, unsolicited and without restriction and will not place Company under any fiduciary or other obligation, and that We are free to use the Feedback without any additional compensation to You, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of Your submission, Company does not waive any rights to use similar or related ideas previously known to Company, or developed by its employees, or obtained from sources other than You.
The Service contains data, information, and other content not owned by You, such as reputational or status indicators, in-world currency, and/or fictional property representing virtual achievements (for instance, trophies or powers) (“Company Property”). You understand and agree that regardless of terminology used, Company Property represents a limited license right governed solely by the terms of these Terms and available for distribution at Company’s sole discretion. Company Property is not redeemable for any sum of money or monetary value from Company at any time. You acknowledge that You do not own the User Account You use to access the Service, nor do You possess any rights of access or rights to data stored by or on behalf of Company on Company servers, including without limitation any data representing or embodying any or all of Your Company Property. You agree that Company has the absolute right to manage, regulate, control, modify and/or eliminate Company Property as it sees fit in its sole discretion, in any general or specific case, and that Company will have no liability to You based on its exercise of such right. All data on Company’s servers are subject to deletion, alteration or transfer. NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH DATA BY YOU OR ANY THIRD PARTY, YOU UNDERSTAND AND AGREE THAT ANY DATA, USER ACCOUNT HISTORY AND USER ACCOUNT CONTENT RESIDING ON COMPANY’S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN COMPANY’S SOLE DISCRETION, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND. COMPANY DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON COMPANY’S SERVERS.
13. Indemnification
You agree to defend, indemnify and hold harmless Company and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) Your use of and access to the Service, including any data or content transmitted or received by You; (ii) Your violation of any term of these Terms, including without limitation Your breach of any of the representations and warranties above; (iii) Your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) Your violation of any applicable law, rule or regulation; (v) User Content or any content that is submitted via Your User Account including without limitation misleading, false, or inaccurate information; (vi) Your willful misconduct; or (vii) any other party’s access and use of the Service with Your unique username, password or other appropriate security code.
14. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICE. UNDER NO CIRCUMSTANCES WILL COMPANY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL COMPANY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO COMPANY HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
15. No Warranty
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, COMPANY, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
FURTHER, COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
16. Additional Terms for Mobile Applications
16.1. Mobile Applications. We may make available software to access the Service via a mobile device ( “Mobile Applications”). To use any Mobile Applications You must have a mobile device that is compatible with the Mobile Applications. Company does not warrant that the Mobile Applications will be compatible with Your mobile device. You may use mobile data in connection with the Mobile Applications and may incur additional charges from Your wireless provider for these services. You agree that You are solely responsible for any such charges. Company hereby grants You a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Applications for one Account on one mobile device owned or leased solely by You or by your company, for Your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Applications, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Applications to any third party or use the Mobile Applications to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Applications; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Applications, features that prevent or restrict use or copying of any content accessible through the Mobile Applications, or features that enforce limitations on use of the Mobile Applications; or (v) delete the copyright and other proprietary rights notices on the Mobile Applications. You acknowledge that Company may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of the Mobile Applications that You are using on Your mobile device. You consent to such automatic upgrading on Your mobile device, and agree that the terms and conditions of these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Applications is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Applications or any copy thereof, and Company or its third-party partners or suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by You to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. Company reserves all rights not expressly granted under these Terms. If the Mobile Applications is being acquired on behalf of the United States Government, then the following provision applies. The Mobile Applications will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms and is prohibited except to the extent expressly permitted by these Terms. The Mobile Applications originates in the United States, and is subject to United States export laws and regulations. The Mobile Applications may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Applications may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Applications and the Service.
16.2. Mobile Applications from Apple App Store. The following applies to any Mobile Applications You acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that these Terms is solely between You and Company, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to You; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to Company as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of You or any third party relating to the Apple-Sourced Software or Your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to Company as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or Your possession and use of that Apple-Sourced Software infringes that third party’s Intellectual Property Rights, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You and Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as relates to Your license of the Apple-Sourced Software, and that, upon Your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as relates to Your license of the Apple-Sourced Software against You as a third-party beneficiary thereof.
16.3. Mobile Applications from Google Play Store. The following applies to any Mobile Applications You acquire from the Google Play Store (“Google-Sourced Software”): (i) You acknowledge that these Terms are between You and Company only, and not with Google, Inc. (“Google”); (ii) Your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where You obtained the Google-Sourced Software; (iv) Company, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to You with respect to Google-Sourced Software or these Terms; and (vi) You acknowledge and agree that Google is a third-party beneficiary to these Terms as it relates to Company’s Google-Sourced Software.
17. Third-Party Links and Information
The Service may contain links to third-party materials that are not owned or controlled by Company. Company does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If You access a third-party website or service from the Service or share Your User Content on or through any third-party website or service, You do so at Your own risk, and You understand that these Terms and Company’s Privacy Policy do not apply to Your use of such sites. You expressly relieve Company from any and all liability arising from Your use of any third-party website, service, or content, including without limitation User Content submitted by other Authorized Users.
18. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
18.1. Governing Law. You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over Us, either specific or general, in jurisdictions other than California. These Terms shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Santa Clara County, California for any actions for which We retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a Our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Santa Clara County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
18.2. Arbitration. Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which You can seek relief from Company. For any dispute with Company, You agree to first contact Us at admin@upmetrics.com and attempt to resolve the dispute with Us informally. In the unlikely event that Company has not been able to resolve a dispute it has with You after sixty (60) days, We each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Santa Clara County, California, unless You and Company agree otherwise. If You are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If You are an individual using the Service for non-commercial purposes: (i) JAMS may require You to pay a fee for the initiation of Your case, unless You apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include Your costs of arbitration, Your reasonable attorney’s fees, and Your reasonable costs for expert and other witnesses; and (iii) You may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve You of Your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Company from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of Our data security, Intellectual Property Rights or other proprietary rights.
18.3. Class Action/Jury Trial Waiver. With respect to all persons and entities, regardless of whether they have obtained or used the Service for personal, commercial or other purposes, all Claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless We agree otherwise, the arbitrator may not consolidate more than one person’s Claims. You agree that, by entering into these Terms, You and Company are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
19. General
19.1. Waiver and Severability. The waiver by either party of any default or breach of these Terms shall not constitute a waiver of any other or subsequent default or breach and Company’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. In the event any provision of these Terms is held to be invalid or unenforceable, the remaining provisions of these Terms shall remain in full force and effect.
19.2. Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by Company without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
19.3. Entire Agreement. These Terms together with the Supplemental Agreement (if any) constitute the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of these Terms.
19.4. Contacting the Company. To contact the Company, please send email to admin@upmetrics.com or physical mail to:
SportUp, Inc. d/b/a UpMetrics
300 Brannan Street, Suite 504
San Francisco, CA 94107
Terms of Use
These Terms of Use were last modified on October 3, 2018
1. Introduction
SportUp, Inc. d/b/a UpMetrics (“We,” “Our,” “Us,” the “Company”) provides a platform that streamlines logistics and empowers organizations to collect, interpret, and leverage their data through Our websites, http://www.UpMetrics.com and http://www.UpActive.com (the “Sites”). The terms and conditions on this page (collectively, these “Terms”) govern Your access to and use of Our Sites, Our online and/or mobile services and any related software provided on or in connection with the foregoing(including, without limitation, Our Mobile Applications (as defined below)) (collectively, the “Service”). These Terms apply to all visitors, users, and others who access the Service (collectively, “Users”), including the person agreeing to these Terms (“You” or “Your”), whether or not You are a registered User of the Service. These Terms constitute a binding legal agreement between You and Company. These Terms may be modified or supplemented by one or more separate agreements entered into between the Company and You regarding Your purchase of the Service (each a “Supplemental Agreement”). To the extent there is any inconsistency between these Terms and the Supplemental Agreement, the Supplemental Agreement will govern.
Please read the Terms carefully. You acknowledge and agree that by clicking a button or checking a box marked “I Agree” (or something similar), by entering into a Supplemental Agreement with Company or by otherwise accessing or using the Service, You signify that You have read, understand, and agree to be bound by these Terms and to the collection and use of Your information as set forth in Our Privacy Policy, which can be found at https://www.UpMetrics.com/privacy-policy and is incorporated by reference into these Terms. If You do not agree to these Terms then You have no right to access or use the Service.
2. The Service
2.1. Eligibility. You may use the Service only if You can form a binding contract with Company, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. The Service is not available to any users previously removed from the Service by Company.
2.2. Limited License. Subject to the terms and conditions of these Terms, You are hereby granted a non-exclusive, limited, non-transferable license to use the Service for Your personal, noncommercial use only and only as permitted by the features of the Service. Company reserves all rights not expressly granted herein in the Service and the Company Content (as defined below) and Company may terminate this license at any time for any or no reason.
2.3. Accounts. In order to access the Service, You must register to create an account (“Account”). During the registration process, You will be required to provide certain information and You will establish a password. Please create a unique and complex password for Your Account, and keep this password secure. You may connect to the Service through a third-party service; provided that, by connecting to the Service with a third-party service, You give Us permission to access and use Your information from that service as permitted by that service, and to store Your log-in credentials for that service. You may never use another User’s Account without permission. The Company reserves the right to suspend or terminate Your Account at any time, if We believe You have violated any part of these Terms or Your Supplemental Agreement. You agree to take sole responsibility for any activities or actions under Your Account, whether or not You have authorized such activities or actions. You will immediately notify the Company of any unauthorized use of Your Account at support@UpMetrics.com.
2.3.1. Account Types. We maintain different types of Accounts for different types of Users. If You open an Account on behalf of a company, school, organization, or other legal entity (“Organization”), then (i) “You” and “Your” includes You, that Organization, and any and all Authorized Users (as defined in this Section 2.3.1) and (ii) You represent and warrant that You are an authorized representative of the Organization with the authority to bind the Organization to these Terms, and that You agree to these Terms on the Organization’s behalf. You acknowledge and agree that if You are opening an Account or otherwise using the Service as or on behalf of an Organization, Your employees, consultants, contractors, customers, agents and any other User authorized to use the Service in connection with Your or Your Organization’s account (collectively, “Authorized Users”) must create their own Accounts and must separately agree to be bound by these Terms.
2.4. Fee and Payment
2.4.1. Paid Features. Certain aspects of the Service may be provided for a fee or other charge. If You elect to use paid aspects of the Service, You agree to the pricing and payment terms included in these Terms as We may update them from time to time. Company may add new services for additional fees and charges, and add or amend fees and charges for existing services, at any time in its sole discretion.
2.4.2. Free Trials. From time to time, to the extent legally permitted, We may offer free trials of certain features for specified periods of time without payment (each a “Free Trial”). If We offer You a Free Trial, the terms of that Free Trial will be provided to You. Free Trials are limited to one (1) per Account unless otherwise agreed to by Us. ONCE YOUR FREE TRIAL ENDS, WE (OR OUR PAYMENT PROCESSOR) WILL BEGIN BILLING YOUR DESIGNATED PAYMENT METHOD FOR THE THEN-CURRENT PRICE FOR THE APPLICABLE SUBSCRIPTION PLAN (PLUS ANY APPLICABLE TAXES AND OTHER CHARGES) ON A RECURRING BASIS FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, UNLESS YOU CANCEL YOUR SUBSCRIPTION PRIOR TO THE END OF YOUR FREE TRIAL. INSTRUCTIONS FOR CANCELING YOUR SUBSCRIPTION ARE SET FORTH IN SECTION 2.4.5. PLEASE NOTE THAT YOU WILL NOT RECEIVE A NOTICE FROM US THAT YOUR FREE TRIAL HAS ENDED OR THAT THE PAID PORTION OF YOUR SUBSCRIPTION HAS BEGUN. WE RESERVE THE RIGHT TO MODIFY OR TERMINATE FREE TRIALS AT ANY TIME, WITHOUT NOTICE AND IN OUR SOLE DISCRETION.
2.4.3. Subscription Services. Company may offer certain features of the Service on a paid, automatically renewing subscription basis (“Subscription Services”). ALL SUBSCRIPTION SERVICES WILL AUTOMATICALLY RENEW AT THE END OF THE TERM IF YOU DO NOT CANCEL PRIOR TO THE END OF THE SUBSCRIPTION TERM. When You purchase any of Our Subscription Services, You expressly acknowledge and agree that (1) Company is authorized to charge You a monthly subscription service fee (in addition to any applicable taxes) for as long as Your subscription continues, and (2) Your subscription is continuous until You cancel it or such Subscription Service is suspended, discontinued or terminated in accordance with these Terms. UNLESS OTHERWISE INDICATED IN ANY APPLICABLE TERMS OR COMMUNICATIONS WE SEND TO YOU, SUCH RENEWAL WILL BE AT THE SAME SUBSCRIPTION FEE AS WHEN YOU FIRST SUBSCRIBED, PLUS ANY APPLICABLE TAXES, UNLESS WE NOTIFY YOU AT LEAST TEN (10) DAYS PRIOR TO THE END OF YOUR THEN-CURRENT SUBSCRIPTION TERM THAT THE SUBSCRIPTION FEE WILL INCREASE. YOU ACKNOWLEDGE THAT YOUR SUBSCRIPTION IS SUBJECT TO AUTOMATIC RENEWALS AND YOU CONSENT TO AND ACCEPT RESPONSIBILITY FOR ALL RECURRING CHARGES TO YOUR CREDIT OR DEBIT CARD (OR OTHER PAYMENT METHOD, AS APPLICABLE) BASED ON THIS AUTOMATIC RENEWAL FEATURE WITHOUT FURTHER AUTHORIZATION FROM YOU AND WITHOUT FURTHER NOTICE EXCEPT AS REQUIRED BY LAW. YOU FURTHER ACKNOWLEDGE THAT THE AMOUNT OF THE RECURRING CHARGE MAY CHANGE IF THE APPLICABLE TAX RATES CHANGE OR IF YOU ARE NOTIFIED THAT THERE WILL BE AN INCREASE IN THE APPLICABLE SUBSCRIPTION FEES.
2.4.4. Payment and Billing; Taxes. All information that You provide in connection with a purchase or transaction or other monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of Your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. For Subscription Services, We automatically charge the payment method associated with Your Account in accordance with the billing term You select at the time You order Subscription Services. Day one of Your billing cycle is tied to the date Your Subscription Services are activated. You acknowledge that the amount billed may vary due to promotional offers, changes in Your Subscription Services plan and changes in applicable taxes, and You authorize Us to charge Your payment method for the corresponding amounts. You further acknowledge that the amount of the recurring charge may change if the applicable tax rates change or if You are notified that there will be an increase in the applicable subscription fees. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
2.4.5. Cancellations and Refunds. You may cancel Your Subscription Services at any time by logging into Your Account and selecting "Cancel Subscription." You may cancel Your Account at any time; however, there are no refunds for cancellation. In the event that Company suspends or terminates Your Account or these Terms, You understand and agree that You shall receive no refund or exchange for any Company Property, any unused Subscription Services, any license or subscription fees for any portion of the Service, any content or data associated with Your Account, or for anything else.
2.4.6. California Residents. The provider of Service is SportUp, Inc. If You are a California resident, in accordance with Cal. Civ. Code §1789.3, You may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
2.5. Changes to the Service. We may, without prior notice, change the Service; stop providing the Service or features of the Service, to You or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend Your access to the Service without notice and liability for any reason, including if in Our sole determination You violate any provision of these Terms, or for no reason. Upon termination for any reason or no reason, You continue to be bound by these Terms.
2.6. Service Location. The Service is controlled and operated from facilities in the United States. Unless otherwise agreed to in a Supplemental Agreement, Company makes no representations that the Service is appropriate or available for use in other locations and those who access or use the Service from other jurisdictions do so at their own volition. You are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if You are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated in the Service or agreed to in a Supplemental Agreement, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
3. Changes to these Terms
Company may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to You via email notice, written or hard copy notice, or through posting of such notice on Our Service, as determined by Company in Our sole discretion. Company reserves the right to determine the form and means of providing notifications to Our Users, provided that You may opt out of certain means of notification as described in these Terms. Company is not responsible for any automatic filtering You or Your network provider may apply to email notifications We send to the email address You provide Us. Company may, in its sole discretion, modify or update these Terms from time to time, and so You should review this page periodically. When We change these Terms in a material manner, We will update the ‘last modified’ date at the top of this page and notify You that material changes have been made to these Terms. Your continued use of the Service after any such change constitutes Your acceptance of the new Terms. If You do not agree to any of these terms or any future Terms, do not use or access (or continue to access) the Service.
Notwithstanding the foregoing, Company shall not make any material change to these Terms that relate to the collection or use of Your Student Data without first giving notice to You and providing a choice before the Student Data is used in a materially different manner than was disclosed when the information was collected. For further details, see the “Student Data” section below.
4. User Content
Some areas of the Service allow Users to submit, post, display, provide, or otherwise make available content such as profile information, videos, images, music, comments, questions, and other content or information (any such materials a User submits, posts, displays, provides, or otherwise makes available on the Service are referred to as “User Content”).
We claim no ownership rights over User Content created by You. The User Content You create remains yours. However, You understand that certain portions of the Service may allow other Users to view, edit, share, and/or otherwise interact with Your User Content. By providing or sharing User Content through the Service, You agree to allow others to view, edit, share, and/or interact with Your User Content in accordance with Your settings and these Terms. Company has the right (but not the obligation) in its sole discretion to remove any User Content that is shared via the Service.
By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the Service, You hereby expressly grant, and You represent and warrant that You have all rights necessary to grant, to Company a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and Your name, voice, and/or likeness as contained in Your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service. You also hereby grant each User of the Service a non-exclusive license to access Your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under these Terms.
For the purposes of these Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with Your User Content, You affirm, represent and warrant the following:
- You have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by the Service and these Terms, and each such person has released You from any liability that may arise in relation to such use.
- You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties.
- Your User Content and Company’s use thereof as contemplated by these Terms and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
- Company may exercise the rights to Your User Content granted under these Terms without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
- To the best of Your knowledge, all Your User Content and other information that You provide to Us is truthful and accurate.
- Company takes no responsibility and assumes no liability for any User Content that You or any other User or third party posts, sends, or otherwise makes available over the Service. You shall be solely responsible for Your User Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Service, and You agree that We are only acting as a passive conduit for Your online distribution and publication of Your User Content. You understand and agree that You may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to Your purpose, and You agree that Company shall not be liable for any damages You allege to incur as a result of or relating to any User Content.
5. Service and Content Rules
5.1. Appropriate Conduct. You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Company servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser and/or mobile device / application (except that Company grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Company Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at Our sole discretion an unreasonable or disproportionately large load on Our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting Your affiliation with a person or entity, conducting fraud, hiding or attempting to hide Your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures We may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
5.2. Appropriate Content. Users have the ability to send communications to certain other Users as a feature of the Service. You acknowledge and agree that Company does not monitor or filter communications or data transmitted through the Service and that We shall not be responsible for the content of any such communications or transmissions. You shall not use the Service to send any communications that disparage any individual or group. You shall not use the Service to bully, harass, intimidate, or otherwise offend any individual or group and You agree not to engage in any behavior or to instigate or participate in any communication via the Service that violates the law. If You believe someone may have sent an offensive or illegal communication via the Service, please notify Us immediately at support@upmetrics.com.
6. Customer Data
6.1. Customer Data Ownership and License. Some areas of the Service may allow the Company to collect personal information from or about Your Authorized Users, current or potential customers, or other individuals (collectively, “Customer Data”). As between You and Company, You own and shall retain all right, title and interest (including all Intellectual Property Rights) in and to Customer Data; however, by submitting or causing to be submitted Customer Data to Company, You hereby grant, and represent and warrant that You have all rights necessary to grant, all rights and licenses to the Customer Data required for Company and its subcontractors and service providers to provide the Service.
6.2. Customer Data Restrictions. You may not submit, or cause to be submitted, any Customer Data that includes a social security number, passport number, driver’s license number, or similar identifier, credit card or debit card number, employment, financial or health information, or any other information which may be subject to specific data privacy and security laws including, but not limited to, the Gramm-Leach-Bliley Act (“GLBA”), or the Health Insurance Portability and Accountability Act (“HIPAA”), or which could give rise to notification obligations under data breach notification laws, without Company’s prior written approval.
6.3. Responsibility for Customer Data. Company will not be responsible for any backup, recovery or other steps required to ensure that Customer Data is recoverable in the case of data loss. You are solely responsible for backing up Your Customer Data on a regular basis, and taking appropriate steps to safeguard and ensure the integrity of Your Customer Data. In addition to the foregoing, if You are an Organization providing access to the Service to Authorized Users, as between You and the Company, You are solely responsible for any and all Customer Data You or Your Authorized Users provide and/or cause to be provided to the Service, and the consequences of providing, posting or transmitting such Customer Data, including responsibility for compliance with breach notification laws. The Company’s commercially reasonable efforts to restore lost or corrupted Customer Data pursuant to this section shall constitute Our sole liability and Your sole and exclusive remedy in the event of any loss or corruption of Customer Data.
6.4. Data Security. We have implemented a variety of physical, administrative and technological safeguards designed to preserve the integrity and security of the personal information we collect and to protect against unauthorized access to such information. These include internal reviews of our data collection, storage, and processing practices and security measures, as well as physical security measures to guard against unauthorized access to systems where we store personal data. We restrict access to personal information to Company employees, contractors, and agents who need to know that information in order to operate, develop, or improve our services. Our employees may be subject to disciplinary action, including termination, if they fail to meet privacy and confidentiality obligations. To the extent we rely on third-party technology vendors (“Service Providers”) to provide Service to You, Company adequately vets and manages such Service Providers to require privacy and confidentiality terms no less protective than those provided by Company.
6.5. You (not Company) bear sole responsibility for adequate security and protection of Customer Data when in Your or Your Authorized Users’ possession or control. We are not responsible, and You are fully responsible, for what Your Authorized Users do with Customer Data. For that reason, We advise you to take reasonable security precautions to protect your information, including, but not limited to, encrypting information prior to transmitting it to Company. Where we have given you (or where you have chosen) a password for access to certain parts of our Service, you are responsible for keeping this password confidential. We ask you not to share your password with anyone, and to regularly change your password using best practices on password complexity.
7. Personal Information; Student Data
7.1. Student Data; Ownership and Control. Some areas of the Service may allow the Company to collect or receive Student Data that is provided by an Organization or Authorized User. “Student Data” is personal information that is directly related to an identifiable student and may include “educational records” as defined by the Family Educational Rights and Privacy Act (“FERPA”). You or Your Organization, and not Company, owns and controls the Student Data. You authorize Company to access, collect, transmit, modify, display and store Student Data for the purpose of providing the Service and as described in these Terms and in Our Privacy Policy. If You are a school or other educational institution, Company shall access and process Student Data as a School Official with a legitimate educational interest in the Student Data pursuant to FERPA.
7.2. Student Data Access. You authorize Company to access or collect Student Data for the purpose of providing the Service. You may provide Student Data manually or permit Company to access Student Data automatically, if Your Organization chooses to integrate its Student Information System (“SIS”) with the Service. You additionally authorize Company to collect Student Data directly from students authorized to use the Service. You represent and warrant that You have the authority to provide Student Data to the Service and that You have provided appropriate disclosures to the appropriate individuals regarding Your sharing of Student Data with the Company for this purpose.
7.3. Compliance with Laws. Individually and collectively with Our customers and Authorized Users, We agree to uphold Our obligations under FERPA, the Protection of Pupil Rights Amendment (“PPRA”), the Children’s Online Privacy Protection Act (“COPPA”), applicable State laws relating to student data privacy, and with all other laws and regulations governing the protection of personal information.
7.4. Use of Student Data. By submitting or providing Us access to Student Data, You agree that Company may use the Student Data solely for the purposes of (i) providing the Service, (ii) improving and developing Our Service, (iii) enforcing Our rights under these Terms, and (iv) as permitted with Our customer’s or the Authorized User’s consent. You agree that both before and after the term of these Terms, Company may collect, analyze and use data derived from Student Data as well as data about users’ access and use of the Service, for the purpose of operating, analyzing, improving or marketing the Service, developing new products or services, conducting research or other purposes, provided that Company may not share or publicly disclose information that is derived from Student Data unless such data is de-identified and/or anonymized such that it cannot reasonably identify a specific individual.
7.5. Restrictions on the use of Student Data. Company is prohibited from using Student Data to (a) direct targeted online advertising to students, (b) develop a profile of a student or other individual other than for the purpose of providing educational services or as authorized by Our customer; (c) for any other commercial purpose unless authorized by Our customer or permitted by law.
7.6. Disclosure of Student Data to Third Parties. You acknowledge and agree that Company may provide access to Student Data to Our employees and service providers, which have a legitimate need to access such information in order to provide their services to Us. Company and Our employees, affiliates, service providers, or agents involved in the handling, transmittal, and processing of Student Data will be required to maintain the confidentiality of such data. Company may share Student Data with third parties through the Service as directed by an Authorized User with authority over such Student Data. You acknowledge that Company is not responsible for the data practices of third parties with whom You elect to share Student Data through the Service, and that You are solely responsible for the third party content and the consequences of providing or transmitting Student Data to such third parties, or authorizing those third parties to access Student Data through the Service.
7.7. Student Data Access and Deletion Requests. Company shall delete Student Data upon request from an Organization or Authorized User with authority over such Student Data, except that Company shall not be required to delete content a student shared to public areas of the Service or content a student has saved to a personal family account on the Service. A parent or student over the age of 18 seeking to access, modify, correct, or delete Student Data will be instructed to contact the Organization or Authorized User to discuss data deletion or modification. Unless otherwise specified in writing, Company shall delete or de-identify Student Data within accordance with Company’s data deletion and destruction practices after termination of the Organization’s agreement.
7.8. Data Security and Breach Notification. Company has implemented administrative, physical and technical safeguards designed to secure the Student Data in Company’s possession and control from unauthorized access, disclosure and use. In the event that an unauthorized party gains access to or has been disclosed personal information (a “Security Incident”), Company shall promptly notify the Organization or Authorized User. If, due to a Security Incident which is caused by the acts or omissions of Company or its agents, a notification to an individual, organization or government agency is required under applicable privacy laws, You or Your Organization shall be responsible for the timing, content, and method of any such legally-required notice and compliance with such laws and Company shall indemnify You or Your Organization for the reasonable costs related to legally-required notifications. With respect to any Security Incident which is not caused by the acts or omissions of Company or its agents, Company shall reasonably cooperate with Your investigation of the Security Incident, at Your request and at Your reasonable expense, but Company shall not indemnify You for costs associated with the Security Incident.
7.9. Terms of Use Changes with Respect to Student Data. Company shall use its best efforts to provide at least thirty (30) days’ notice of a Terms of Service change that may involve collecting, using, storing, or sharing Student Data in a materially different way than was disclosed in the previous Terms of Service, so that You have sufficient time to evaluate the change in practice. If You do not choose to accept the changes, You may opt-out by deleting Your account before the changes take effect.
8. DMCA Notice
Since We respect artist and content owner rights, it is Company’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If You believe that Your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Company’s copyright agent as set forth in the DMCA. For Your complaint to be valid under the DMCA, You must provide the following information in writing:
- An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work that You claim has been infringed;
- Identification of the material that is claimed to be infringing and where it is located on the Service;
- Information reasonably sufficient to permit Company to contact You, such as Your address, telephone number, and, e-mail address;
- A statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
- A statement, made under penalty of perjury, that the above information is accurate, and that You are the copyright owner or are authorized to act on behalf of the owner.
Under federal law, if You knowingly misrepresent that online material is infringing, You may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees.
Please note that this procedure is exclusively for notifying Company and its affiliates that Your copyrighted material has been infringed. The preceding requirements are intended to comply with Company’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding Your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Company has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Company may also at its sole discretion limit access to the Service and/or terminate the Accounts of any Users who infringe any Intellectual Property Rights of others, whether or not there is any repeat infringement.
9. Marketing License
You grant to the Company a non-exclusive, limited right to use Your name, trademarks, and logos (collectively, the “Customer Marks”) in the production of marketing materials identifying You as Our customer. Such marketing materials may include but not be limited to The Company’s websites, brochures, press releases, trade show displays, and presentations. In addition, You grant to the Company the right to publicly acknowledge You as Our customer.
10. Responsibilities for Calls and Messaging
To the extent applicable to Your use of the Service, You shall at all times comply with the CAN SPAM Act of 2003, the Telephone Consumer Protection Act (47 U.S.C. §227), the Do-Not-Call Implementation Act and the Do-Not-Call list registry rules (http://www.donotcall.gov), the Telemarketing Sales Rule, 47 C.F.R. § 64.1200 et seq, and all other state or local laws, rules, regulations, and guidelines relating to calling or texting, including without limitation, rules, regulations and guidelines set forth by the Federal Trade Commission and the Federal Communications Commission (collectively, the “Calling Laws”). You agree that, as between the parties, You are the initiator of any call, SMS/MMS message, or other communication transmitted through the Service and for all content relating to, inducing, or encouraging calls, SMS/MMS messages or other communications to take place. Company is not responsible for reviewing the contents of any communication transmitted through the Service or transmitted by You related to Your use of the Service, nor is it responsible for obtaining any necessary consents or permissions from the message recipients.
11. Students Under FERPA
If You are a school or school district, or are otherwise subject to the provisions of FERPA, this section applies to You. Under certain circumstances, You may provide information to the Company that includes personally identifiable information from education records that are subject to FERPA (“FERPA Records”). If You are regulated by FERPA, You agree that You are familiar with and agree to be responsible for compliance with FERPA and all other laws, rules or regulations concerning the collection, use, and disclosure of FERPA Records, including, without limitation, any FERPA Records that You or Authorized Users may input into, access, or obtain from the Service.
In the event that You are regulated by FERPA, You and the Company agree as follows: (i) You have designated the Company as a “school official” as that term is used in FERPA, and You have determined that the Company has a “legitimate educational interest” for the purpose of carrying out its responsibilities relating to the Service; (ii) We acknowledge that We shall be bound by all relevant provisions of FERPA and agree that FERPA Records obtained from You in connection with the Service will not be disclosed by the Company to third parties, except as expressly provided for in FERPA, and will be used only to fulfill the Company’s responsibilities relating to the Service. In accordance with FERPA, You and the Company agree that any consents to disclose information may be made electronically.
12. Proprietary Rights
Subject to the limited rights expressly granted hereunder, the Company and its licensors exclusively own and retain all rights, title, and interest in and to the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Authorized Users (the “Company Content”), and all Intellectual Property Rights related thereto. Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such Intellectual Property Rights, and You agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Company Content. Use of the Company Content for any purpose not expressly permitted by these Terms is strictly prohibited.
You may choose to or We may invite You to submit comments or ideas about the Service, including without limitation about how to improve the Service or Our products (“Feedback”). By submitting any Feedback, You agree that Your disclosure is gratuitous, unsolicited and without restriction and will not place Company under any fiduciary or other obligation, and that We are free to use the Feedback without any additional compensation to You, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of Your submission, Company does not waive any rights to use similar or related ideas previously known to Company, or developed by its employees, or obtained from sources other than You.
The Service contains data, information, and other content not owned by You, such as reputational or status indicators, in-world currency, and/or fictional property representing virtual achievements (for instance, trophies or powers) (“Company Property”). You understand and agree that regardless of terminology used, Company Property represents a limited license right governed solely by the terms of these Terms and available for distribution at Company’s sole discretion. Company Property is not redeemable for any sum of money or monetary value from Company at any time. You acknowledge that You do not own the User Account You use to access the Service, nor do You possess any rights of access or rights to data stored by or on behalf of Company on Company servers, including without limitation any data representing or embodying any or all of Your Company Property. You agree that Company has the absolute right to manage, regulate, control, modify and/or eliminate Company Property as it sees fit in its sole discretion, in any general or specific case, and that Company will have no liability to You based on its exercise of such right. All data on Company’s servers are subject to deletion, alteration or transfer. NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH DATA BY YOU OR ANY THIRD PARTY, YOU UNDERSTAND AND AGREE THAT ANY DATA, USER ACCOUNT HISTORY AND USER ACCOUNT CONTENT RESIDING ON COMPANY’S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN COMPANY’S SOLE DISCRETION, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND. COMPANY DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON COMPANY’S SERVERS.
13. Indemnification
You agree to defend, indemnify and hold harmless Company and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) Your use of and access to the Service, including any data or content transmitted or received by You; (ii) Your violation of any term of these Terms, including without limitation Your breach of any of the representations and warranties above; (iii) Your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) Your violation of any applicable law, rule or regulation; (v) User Content or any content that is submitted via Your User Account including without limitation misleading, false, or inaccurate information; (vi) Your willful misconduct; or (vii) any other party’s access and use of the Service with Your unique username, password or other appropriate security code.
14. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICE. UNDER NO CIRCUMSTANCES WILL COMPANY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL COMPANY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO COMPANY HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
15. No Warranty
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, COMPANY, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
FURTHER, COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
16. Additional Terms for Mobile Applications
16.1. Mobile Applications. We may make available software to access the Service via a mobile device ( “Mobile Applications”). To use any Mobile Applications You must have a mobile device that is compatible with the Mobile Applications. Company does not warrant that the Mobile Applications will be compatible with Your mobile device. You may use mobile data in connection with the Mobile Applications and may incur additional charges from Your wireless provider for these services. You agree that You are solely responsible for any such charges. Company hereby grants You a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Applications for one Account on one mobile device owned or leased solely by You or by your company, for Your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Applications, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Applications to any third party or use the Mobile Applications to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Applications; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Applications, features that prevent or restrict use or copying of any content accessible through the Mobile Applications, or features that enforce limitations on use of the Mobile Applications; or (v) delete the copyright and other proprietary rights notices on the Mobile Applications. You acknowledge that Company may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of the Mobile Applications that You are using on Your mobile device. You consent to such automatic upgrading on Your mobile device, and agree that the terms and conditions of these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Applications is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Applications or any copy thereof, and Company or its third-party partners or suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by You to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. Company reserves all rights not expressly granted under these Terms. If the Mobile Applications is being acquired on behalf of the United States Government, then the following provision applies. The Mobile Applications will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms and is prohibited except to the extent expressly permitted by these Terms. The Mobile Applications originates in the United States, and is subject to United States export laws and regulations. The Mobile Applications may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Applications may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Applications and the Service.
16.2. Mobile Applications from Apple App Store. The following applies to any Mobile Applications You acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that these Terms is solely between You and Company, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to You; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to Company as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of You or any third party relating to the Apple-Sourced Software or Your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to Company as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or Your possession and use of that Apple-Sourced Software infringes that third party’s Intellectual Property Rights, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You and Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as relates to Your license of the Apple-Sourced Software, and that, upon Your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as relates to Your license of the Apple-Sourced Software against You as a third-party beneficiary thereof.
16.3. Mobile Applications from Google Play Store. The following applies to any Mobile Applications You acquire from the Google Play Store (“Google-Sourced Software”): (i) You acknowledge that these Terms are between You and Company only, and not with Google, Inc. (“Google”); (ii) Your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where You obtained the Google-Sourced Software; (iv) Company, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to You with respect to Google-Sourced Software or these Terms; and (vi) You acknowledge and agree that Google is a third-party beneficiary to these Terms as it relates to Company’s Google-Sourced Software.
17. Third-Party Links and Information
The Service may contain links to third-party materials that are not owned or controlled by Company. Company does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If You access a third-party website or service from the Service or share Your User Content on or through any third-party website or service, You do so at Your own risk, and You understand that these Terms and Company’s Privacy Policy do not apply to Your use of such sites. You expressly relieve Company from any and all liability arising from Your use of any third-party website, service, or content, including without limitation User Content submitted by other Authorized Users.
18. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
18.1. Governing Law. You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over Us, either specific or general, in jurisdictions other than California. These Terms shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Santa Clara County, California for any actions for which We retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a Our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Santa Clara County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
18.2. Arbitration. Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which You can seek relief from Company. For any dispute with Company, You agree to first contact Us at admin@upmetrics.com and attempt to resolve the dispute with Us informally. In the unlikely event that Company has not been able to resolve a dispute it has with You after sixty (60) days, We each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Santa Clara County, California, unless You and Company agree otherwise. If You are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If You are an individual using the Service for non-commercial purposes: (i) JAMS may require You to pay a fee for the initiation of Your case, unless You apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include Your costs of arbitration, Your reasonable attorney’s fees, and Your reasonable costs for expert and other witnesses; and (iii) You may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve You of Your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Company from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of Our data security, Intellectual Property Rights or other proprietary rights.
18.3. Class Action/Jury Trial Waiver. With respect to all persons and entities, regardless of whether they have obtained or used the Service for personal, commercial or other purposes, all Claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless We agree otherwise, the arbitrator may not consolidate more than one person’s Claims. You agree that, by entering into these Terms, You and Company are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
19. General
19.1. Waiver and Severability. The waiver by either party of any default or breach of these Terms shall not constitute a waiver of any other or subsequent default or breach and Company’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. In the event any provision of these Terms is held to be invalid or unenforceable, the remaining provisions of these Terms shall remain in full force and effect.
19.2. Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by Company without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
19.3. Entire Agreement. These Terms together with the Supplemental Agreement (if any) constitute the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of these Terms.
19.4. Contacting the Company. To contact the Company, please send email to admin@upmetrics.com or physical mail to:
SportUp, Inc. d/b/a UpMetrics
300 Brannan Street, Suite 504
San Francisco, CA 94107