Terms
of Use
Welcome and thank you for visiting this Upshot LLC (“Upshot,” “we,” “our,” or “us”) website (“Website”) and reviewing our Terms of Use. Upshot makes this Website, including all information, documents, catalogs, communications, files, text, graphics, and audio/visual files (collectively, the “Materials”) available for your use subject to the Terms of Use set forth here. These Terms of Use spell out what you can expect from us and what we expect from you.
1. Terms of use, Acceptance of Terms of use, and Non-Transferability
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. By accessing, using, or downloading in any way, without limitation, any Materials from this Website or merely browsing this Website, you agree to and are bound by these Terms of Use.
Upshot reserves the right to change the Terms of Use at any time, without prior notice to any Website visitor (“User”). YOU ARE HEREBY ADVISED THAT YOUR CONTINUED USE OF OUR WEBSITE CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS OF USE AND ANY SUBSEQUENT AMENDMENTS TO THESE TERMS OF USE. If you breach any of the Terms of Use, your authorization to use this Website automatically terminates, and any of the Materials downloaded or printed from this Website must be immediately destroyed. A User’s right to use this Website is NOT transferable.
2. Ownership of the Website
a. Copyright Information and Personal and Non-Commercial Use Limitation
All Materials and the compilation of all content included on this Website are owned or licensed by Upshot and protected by United States and international copyright laws. Upshot does not claim ownership of Copyrights owned by third parties. You have been granted a license to view and use the Website Materials subject to these Terms of Use. Unless otherwise specified, the Materials on this Website are for your personal and non-commercial use. You may not sell or modify Website Materials or reproduce, display publicly or otherwise use the Website Materials in any way for any public or commercial purpose, including the provision of services or products to Upshot. Permission to reprint or electronically reproduce any document or graphic, in whole or in part, for any other purpose is expressly prohibited without prior written consent from Upshot. You may not provide copyrighted or other proprietary information to Upshot without permission from the owner of such material or rights. You are solely responsible for obtaining such permission and for any damages resulting from unauthorized disclosures or infringement.
b. Notice and Procedure for Making Claims under the Digital Millennium Copyright ActThe Digital Millennium Copyright Act (DMCA) provides recourse to copyright owners who believe that their rights under the United States Copyright Act have been infringed by acts of third parties over the Internet. If you believe that your copyrighted work has been copied without your authorization and is available on this Website in a way that may constitute copyright infringement, you may provide notice of your claim to Upshot’s designated agent listed below. For your notice to be effective, it must include the following information: (1) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (2)Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a
single notification, a representative list of such works at that Website; (3) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Upshot to locate the material; (4) Information reasonably sufficient to permit Upshot to contact the complaining party, such as address, telephone number, and, if available, an e-mail address at which the complaining party may be contacted; (5) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (6) A statement that the information in the notification is accurate and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Upshot’s Designated Agent is:
Upshot LLC
Attn: General Counsel
18100 Von Karman Avenue, Suite 1000
Irvine, California 92612
Phone: (949) 797-2900
Fax: (949) 797-9112
The Designated Agent should be contacted only if you believe that your work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on this Website. ALL OTHER INQUIRIES DIRECTED TO THE DESIGNATED AGENT WILL NOT BE ANSWERED.
c. TrademarksUpshot owns trademarks for its many goods and services. Upshot trademarks, graphics, logos and service marks are trademarks of Upshot and may not be used without prior written consent of Upshot. All other trademarks, product names, and company names and logos appearing on the Upshot Website are the property of their respective owners.
d. Ideas and InventionsAll comments, feedback, suggestions, ideas, and other submissions (“Ideas”) disclosed, submitted, or offered to Upshot in connection with your use of this Website shall be the exclusive property of Upshot. User agrees that unless otherwise prohibited by law Upshot may use, sell, exploit and disclose the Ideas in any manner, without restriction and without compensation to User.
e. Linking, Framing and InliningIf you have a website and wish to establish temporary or permanent links from your website to this Website, you must link to our homepage only. If you would like to link to another location within our website you will need to receive written permission from us. You may not frame or utilize framing techniques or utilize inlining techniques to display, enclose, or deep link to, any name, trademarks, service marks, logo, Materials or other proprietary information (including; images, text, page layout or form) of Upshot without our express written consent.
3. Privacy and Protection of Personal Information
Upshot respects the privacy of visitors to our Website. Please see Upshot’s Privacy Policy and Cookie Policy relating to the collection and use of your information. User acknowledges and agrees that this Privacy Policy and Cookie Policy, including but not limited to the manner in which Upshot collects, uses and discloses User’s personally identifiable information, are incorporated and made part of these Terms of Use. If User does not agree to each and every part of Upshot’s Privacy Policy and Cookie Policy, then User should not use this Website or submit or post any personally identifiable information on this Website. Questions regarding privacy issues should be directed via e-mail to privacy@advantagesolutions.net.
4. Disclaimer of Warranties, Limitation of Liability, and Indemnification
User expressly agrees that use of Upshot’s Website and service is at User’s sole risk. Neither Upshot, nor its affiliates, nor any of their officers, directors, or employees, agents, third-party content providers, merchants, sponsors, licensors (collectively, “Providers”), or the like, warrant that websites affiliated with Upshot, including but not limited to this Website, will be uninterrupted, error-free, or free of viruses, worms, Trojan horses, keyboard loggers, spyware, adware, malware, harmful or malicious code, or other defects. The information, products and services published on this Website may contain inaccuracies or typographical errors. The Providers make no warranty as to the results that may be obtained from the use of Upshot’s Website or as to the accuracy, reliability, or currency of any information content, service, or merchandise provided through Upshot’s Website.
a. Disclaimer of WarrantiesTHIS WEBSITE IS PROVIDED BY UPSHOT ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, UPSHOT AND THE PROVIDERS DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, IMPLIED AND STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. UPSHOT SPECIFICALLY DISCLAIMS ALL LIABILITY FOR ERRORS OR OMISSIONS IN, OR THE MISUSE OR MISINTERPRETATION OF, ANY INFORMATION OBTAINED THROUGH THE SITE. UPSHOT AND THE PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE WEBSITE, SECURITY OF THE WEBSITE, THE AVAILABILITY OF ANY SERVICES OFFERED ON OR THROUGH THE WEBSITE, INCLUDING E-MAIL, OR THE INFORMATION, CONTENT, MATERIALS OR PRODUCTS, INCLUDED ON THIS WEBSITE. ANY MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS WEBSITE, SITE-RELATED SERVICES, AND HYPERLINKED WEBSITES IS AT YOUR SOLE RISK.
NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY UPSHOT NOR ITS AFFILIATES, NOR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PROVIDERS, OR THE LIKE, SHALL CREATE A WARRANTY OF ANY KIND; NOR SHALL YOU RELY ON ANY SUCH INFORMATION OR ADVICE. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
b. Limitation of LiabilityUPSHOT DOES NOT GUARANTEE THE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE UPSHOT WEBSITE OR ANY RELATED SERVICES. THE OPERATION OF THE UPSHOT WEBSITE MAY BE INTERFERED WITH BY NUMEROUS FACTORS WITHIN OR OUTSIDE THE CONTROL OF UPSHOT.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT UPSHOT AND THE PROVIDERS WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF OR INABILITY TO USE THIS WEBSITE AND/OR ANY HYPERLINKED WEBSITE, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF UPSHOT OR ITS PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE LIMITATION OF THIS PARAGRAPH SHALL APPLY NOTWITHSTANDING ANY RELIANCE BY YOU ON ANY INFORMATION OBTAINED FROM THIS WEBSITE OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES OR OTHER MALICIOUS CODE, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO UPSHOT’S RECORDS, PROGRAMS, OR SERVICES, AND WHETHER OR NOT UPSHOT AND/OR ANY OTHER PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU HEREBY ACKNOWLEDGE THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT, MERCHANDISE, AND SERVICES AVAILABLE THROUGH THE UPSHOT WEBSITE.
SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE UPSHOT SERVICES, FROM INABILITY TO USE THE UPSHOT SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE UPSHOT SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE UPSHOT WEBSITE OR A HYPERLINKED WEBSITE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE YOUR USE OF THIS WEBSITE, SITE-RELATED SERVICES, AND HYPERLINKED WEBSITES IS AT YOUR SOLE RISK.
c. IndemnificationYou agree to defend, indemnify, and hold Upshot, its officers, directors, employees, agents, licensors, and suppliers, harmless from and against any claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and accounting fees, resulting from or alleged to result from, your (i) use of and access to the site, (ii) violation of these Terms of Use, or (iii) violation of any third party right, including, without limitation any trademark, copyright or other proprietary or privacy right.
5. Third-Party Links
This Website contains several links to other websites. These websites are not under the control of Upshot, and the existence of a link on Upshot’s Website does not imply any endorsement of the linked websites by Upshot or any affiliation between Upshot and the owners of the linked websites. Upshot makes no representations or warranties, and disclaims all liability, relating to the accuracy, content, terms of use, privacy policies, products, services, legality, reliability, viewpoint, accuracy, currency, decency, or any other aspect of the linked websites. You agree that Upshot has no responsibility to you with respect to such material. Visitors to other websites are encouraged to examine the privacy policies and/or terms of use policies of that website.
6. Online Conduct
The User agrees to use the Upshot Website and any e-mail services provided through this Website only for lawful purposes. Unacceptable uses of the Website include without limitation: (i) engaging in any illegal activity or the planning of any illegal activity; (ii) disseminating or transmitting statements or material that, to a reasonable person, may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (iii) creating, disseminating or transmitting files, graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secret, publicity or other intellectual property rights of any person; (iv) creating a false identity or otherwise attempting to mislead any person as to the identity or origin of any communication; (v) exporting, re-exporting or permitting the downloading of any message, software or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses or exemptions; (vi) interfering, disrupting or attempting to gain unauthorized access to other accounts on the Website or any other computer network; (vii) disseminating or transmitting viruses, worms, Trojan horses, RATs, keyboard loggers, time bombs, spyware, adware, cancelbots or any other malicious or invasive code or program; or (viii) engaging in any other activity deemed by Upshot to be in conflict with the spirit or intent of this Website.
7. Termination
These Terms of Use are effective until terminated by either party. You may terminate these terms at any time by discontinuing use of the Upshot Website and destroying all Materials obtained from this Website and all copies thereof, whether made under these Terms of Use or otherwise. Your access to the Upshot Website may be terminated immediately without notice from Upshot if in our sole discretion you fail to comply with any term or provision of these Terms of Use. Upon termination, you must cease use of the Upshot Website and destroy all Materials obtained from this Website and all copies thereof, whether made under these Terms of Use or otherwise.
8. International Users
The Upshot Website can be accessed from locations around the world. Upshot makes no representations that this Website or the Materials available through it are appropriate for use at other locations outside the United States. Access to this Website from locations where this Website or any of its Materials are illegal is prohibited. If you access this Website from a location outside the United States, you are responsible for compliance with all local and/or international laws.
9. Security
If you use this Website, you are responsible for maintaining the confidentiality of a personal e-mail account (“Account”) and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your Account or password. You agree to (a) immediately notify Upshot of any unauthorized use of your password or Account or and other breach of security, and (b) ensure that you exit from your Account at the end of each session. Upshot cannot and will not be held liable for any loss or damage arising from your failure to comply with this section. Upshot reserves the right to monitor all network traffic to this Website to identify and/or block unauthorized attempts or intrusions to upload or change information or cause damage to this Website in any fashion. Anyone using this Website expressly consents to such monitoring.
10. Arbitration
Any dispute relating in any way to your visit to Upshot’s Website shall be submitted to confidential arbitration in Irvine, California, except that, to the extent you have in any manner violated or threatened to violate Upshot’s intellectual property rights, Upshot may seek injunctive, equitable, or other appropriate relief in any state or federal court in the state of California, and you consent to exclusive jurisdiction and venue in such courts. Arbitration under this agreement shall be conducted under the rules then prevailing of JAMS (www.jamsadr.com). The arbitrator’s award, including attorneys’ fees, shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these Terms of Use, Privacy Policy, or Cookie Policy shall be joined to an arbitration involving any other party subject to these Terms of Use, Privacy Policy, or Cookie Policy, whether through class arbitration proceedings or otherwise.
11. Applicable Law/Jurisdiction
This Website is hosted by Upshot in the State of California. As such, by visiting Upshot’s Website, even if accessed from a location outside the United States, you agree that the laws of the State of California will govern these disclaimers, Terms of Use, Privacy Policy, and Cookie Policy, without giving effect to any principles of conflicts of laws. Upshot reserves the right to make changes to its Website and these disclaimers, Terms of Use, Privacy Policy, and Cookie Policy at any time. You hereby irrevocably and unconditionally consent to jurisdiction in the State of California.
12. Waiver/Severability
The failure of Upshot to require or enforce strict performance by you of any provision of these Terms of Use or to exercise any right under them shall not be construed as a waiver or relinquishment of Upshot’s right to assert or rely upon any such provision or right in that or any other instance. The provisions of these Terms of Use are intended to be severable. If for any reason any provision of these Terms of Use shall be held invalid or unenforceable in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner and without affecting the remaining provisions hereof, which shall continue to be in full force and effect.
13. Statute of limitations
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Upshot Website, Terms of Use, Privacy Policy, or Cookie Policy must be filed within ONE (1) YEAR after such claim or cause of action arose or be forever barred.
14. Entire agreement
These Terms of Use constitute the entire agreement between you and Upshot with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of the Terms of Use, Privacy Policy, or Cookie Policy will be effective only if in writing and signed by Upshot. The section titles in these Terms of Use are for convenience only and have no legal or contractual effect.
Date Last Modified: August 2020 These Terms of Use may be changed at any time, without prior notice to you. You should, therefore, periodically visit this page to review the current Terms of Use so you are aware of any such revisions to which you are bound.