Effective Date: July 14, 2020
PLEASE BE AWARE THAT SECTION 17 OF THESE TERMS CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THESE TERMS. SPECIFICALLY, SECTION 17 CONTAINS AN ARBITRATION AGREEMENT THAT, WITH LIMITED EXCEPTIONS, REQUIRES ANY DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
Your use of, and participation in, certain App Services may be subject to additional terms (“Supplemental Terms”). Such Supplemental Terms will either be listed in these Terms or will be presented to you for your acceptance when you sign up for the supplemental App Service. If these Terms are inconsistent with any Supplemental Terms, the Supplemental Terms shall control with respect to such supplemental App Service. These Terms and any applicable Supplemental Terms are referred to herein as the “Agreement.”
THE AGREEMENT IS SUBJECT TO CHANGE BY UPPERCAMPUS IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, UpperCampus will make a new copy of these Terms available in the App, and any new Supplemental Terms will be made available from within, or through, the affected App Service on the App. We will also update the “Last Updated” date at the top of these Terms. If we make material changes to these Terms, we may (and, where required by law, will) also provide notification of changes in another way that we believe is reasonably likely to reach you, such as via e-mail if you have an Account (as defined in Section 2.1) or posting an announcement on our App. UpperCampus may require you to provide consent to the updated Agreement before you can continue using the App or other App Services. If you do not agree to any change(s) in the manner required by UpperCampus after receiving a notice of such change(s), you shall stop using the App Services. If you elect to continue your use of the App Services, such continued use constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE APP TO VIEW THE THEN-CURRENT TERMS.
1.1 App License. Subject to your compliance with the Agreement, UpperCampus grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal or internal academic purposes. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Furthermore, with respect to any App accessed through or downloaded from Google Play (a “Google Play Sourced Application”), you may have additional license rights and/or restrictions with respect to use of the App.
1.2 Updates. You understand that the App Services are evolving. As a result, UpperCampus may require you to accept updates to the App that you have installed on your mobile device. You acknowledge and agree that UpperCampus may update the App Services with or without notifying you. You may need to update third-party software from time to time in order to use the App Services. UpperCampus reserves the right to modify or discontinue the App Services at any time (including by limiting or discontinuing certain features of the App Services), temporarily or permanently, without notice to you. We will have no liability for making any change to the App Services or otherwise suspending or terminating your access to the App Services.
1.3 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the App Services or any portion thereof, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Content (including images, text, page layout or form) of UpperCampus; (c) you shall not use any metatags or other “hidden text” using UpperCampus’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the App Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape,” download or access data or Content from the App Services; (f) you shall not access the App Services in order to build a similar or competitive app or service; (g) except as expressly stated herein, no part of the App Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the App Services. Any future release, update or other addition to the App Services shall be subject to the Agreement. UpperCampus, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any part of the App Services terminates the licenses granted by UpperCampus pursuant to the Agreement.
1.4 Third-Party Materials. As a part of the App Services, you may have access to materials that are hosted by another party. You agree that it is impossible for UpperCampus to monitor such materials and that you access these materials at your own risk.
2.1 Registering Your Account. To access certain features of the App Services, you may be required to become a Registered User. As used herein, a “Registered User” is a user who has registered an account on the App (“Account”).
2.2 Access Through a SNS. If you access the App Services through a social networking service (SNS) as part of the functionality of the App Services, you may link your Account with your SNS account (“Third Party Account”), by allowing UpperCampus to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of such Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to UpperCampus and/or grant UpperCampus access to your Third Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any terms and conditions that govern your use of the applicable Third Party Account and without obligating UpperCampus to pay any fees or making UpperCampus subject to any usage limitations imposed by such third-party service providers. By granting UpperCampus access to any Third Party Account, you understand that UpperCampus may access, make available and store (if applicable) any Content that you have provided to and stored in your Third Party Account (“SNS Content”) so that it is available on and through the App Services via your Account. Unless otherwise specified in the Agreement, all SNS Content shall be considered to be Your Content (as defined in Section 4.1) for all purposes of the Agreement. Depending on the Third Party Accounts you choose and subject to the privacy settings you have set in such Third Party Accounts, personally identifiable information that you post to your SNS Accounts may be available on and through your Account on the App Services. Please note that if a Third Party Account or associated service becomes unavailable or UpperCampus’s access to such Third Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the App Services. You have the ability to disable the connection between your Account and your Third Party Accounts at any time by accessing the “Settings” section of the App. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND UPPERCAMPUS DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD- PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD PARTY ACCOUNTS. UpperCampus makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and UpperCampus is not responsible for any SNS Content.
2.3 Registration Data. In registering an Account on the App, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least thirteen (13) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the App Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the App Services by minors. You may not share your Account or password with anyone, and you agree to (y) notify UpperCampus immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or UpperCampus has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, UpperCampus has the right to suspend or terminate your Account and refuse any and all current or future use of the App Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time any given time. You agree not to create an Account or use the App Services if you have been previously removed by UpperCampus, or if you have been previously banned from any of the App Services.
2.4 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the App Services, including but not limited to, a mobile device that is suitable to connect with and use the App Services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the App Services.
3. Location Based Services. Some features of the App Services may enable UpperCampus to access your location in order to tailor your experience with the App Services based on your location (“Location- based Services”). If you choose to disable any Location-based Services on your device, you will not be able to utilize certain features of the App Services. By enabling Location-based Services, you agree and acknowledge that: (a) device data we collect from you is directly relevant to your use of the App Services; (b) UpperCampus may provide Location-based Services related to and based on your then-current location; and (c) UpperCampus may use any such information collected in connection with provision of the App Services.
4. RESPONSIBILITY FOR CONTENT.
4.1 Types of Content. You acknowledge that all Content is the sole responsibility of the party from whom such Content originated. This means that you, and not UpperCampus, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the App Services (“Your Content”), and that you and other Registered Users of the App Services, and not UpperCampus, are similarly responsible for all Content that you and they Make Available through the App Services (“User Content”). Furthermore, you acknowledge that all Content contributed to the App Services by Partners that access UpperCampus’s Platform for such purposes (“Partner-provided Content”) is the sole responsibility of the Partner that Makes Available such Content through the App Services.
4.2 No Obligation to Pre-Screen Content. You acknowledge that UpperCampus has no obligation to pre-screen Your Content, any Partner-provided Content, or any User Content, although UpperCampus reserves the right in its sole discretion to pre-screen, refuse or remove any such Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring and acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation, chat, text, or voice communications. If UpperCampus pre-screens, refuses or removes Your Content, Partner-provided Content, or User Content, you acknowledge that UpperCampus will do so for UpperCampus’s benefit, not yours. Without limiting the foregoing, UpperCampus shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
4.3 Storage. Unless expressly agreed to by UpperCampus in writing elsewhere, UpperCampus has no obligation to store any of Your Content that you Make Available on the App Services. UpperCampus has no responsibility or liability for the deletion or accuracy of any Content; the failure to store, transmit or receive transmission of any Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the App Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that UpperCampus retains the right to create reasonable limits on its use and storage of Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the App and as otherwise determined by UpperCampus in its sole discretion.
5.1 App Services. Except with respect to Your Content and User Content, you agree that UpperCampus and its suppliers own all rights, title and interest in the App Services (including but not limited to, any computer code, themes, objects, concepts, artwork, animations, sounds, audiovisual effects, moral rights, and server software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any App Services.
5.2 Trademarks. UpperCampus and all related graphics, logos, service marks and trade names used on or in connection with the App Services or the UpperCampus Properties are the trademarks of UpperCampus and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the App Services or the UpperCampus Properties are the property of their respective owners.
5.3 Other Content. Except with respect to Your Content, you agree that you have no right, title, or interest in or to any Content that appears on or in the App Services.
5.4 Your Content. UpperCampus does not claim ownership of Your Content. However, when you, as a Registered User, post or publish Your Content on or in App Services, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
5.5 License to Your Content. Subject to any applicable account settings that you select, you grant UpperCampus a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to use, host, publicly display, publish, license, distribute, reproduce, modify and adapt Your Content (in whole or in part) for the purposes of operating, developing and improving the App Services and the UpperCampus Properties and providing them to you and to our other Registered Users; as well as researching and developing new services. Please remember that Partners and other Registered Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of App Services or otherwise make available to them through your settings or choices in the App. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not UpperCampus, are responsible for all of Your Content that you Make Available on or in the App Services.
5.6 Your Profile. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter as determined by UpperCampus in its sole discretion. You may not post or submit for print services a photograph of another person without that person’s permission.
5.7 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to UpperCampus through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that UpperCampus has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to UpperCampus a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the App Services, the UpperCampus Properties, and/or UpperCampus’s business.
6. USER CONDUCT. As a condition of your use of the App Services, you agree not to use the App Services for any purpose that is prohibited by these Terms or by applicable law. You shall not (and shall not permit any third party) either take any action or Make Available any Content on or through the App Services that: (a) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (b) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (c) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (d) involves commercial activities and/or sales
without UpperCampus’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (e) impersonates any person or entity, including any employee or representative of UpperCampus; (f) interferes with or attempt to interfere with the proper functioning of the App Services or uses the App Services in any way not expressly permitted by these Terms; or (g) attempts to engage in or engage in, any potentially harmful acts that are directed against the App Services, including but not limited to violating or attempting to violate any security features of the App Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the App Services, introducing viruses, worms, or similar harmful code into the App Services, or interfering or attempting to interfere with use of the App Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the App Services. Notwithstanding the foregoing, you agree to comply with all applicable laws, including all applicable data protection laws.
7. INVESTIGATIONS. UpperCampus may, but is not obligated to, monitor or review the App Services and the Content posted thereon at any time. Without limiting the foregoing, UpperCampus shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although UpperCampus does not generally monitor user activity occurring in connection with the App Services or Content, if UpperCampus becomes aware of any possible violations by you of any provision of the Agreement, UpperCampus reserves the right to investigate such violations, and UpperCampus may, at its sole discretion, immediately terminate your license to use the App Services, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
8. INTERACTIONS WITH OTHER USERS.
8.1 User Responsibility. You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact, including Partners; provided, however, that UpperCampus reserves the right, but has no obligation, to intercede in such disputes. You agree that UpperCampus will not be responsible for any liability incurred as the result of such interactions.
8.2 Content Provided by Partners. The App Services contains Partner-provided Content. UpperCampus is not responsible for and does not control any Partner-provided Content. UpperCampus has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to Partner-provided Content. You use all Partner-provided Content and interact with Partners at your own risk.
8.3 Content Provided by Other Users. The App Services may contain User Content provided by other Registered Users. UpperCampus is not responsible for and does not control User Content. UpperCampus has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Registered Users at your own risk.
9. THIRD-PARTY SERVICES.
9.1 Third-Party Websites and Applications. The App Services may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications. When you click on a link to a Third-Party Website or Third-Party Application, we will not warn you that you have left the App Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Applications are not under the control of UpperCampus. UpperCampus is not responsible for any Third-Party Websites or Third-Party Applications. UpperCampus provides these Third-Party Websites and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or any product or service provided in connection therewith. You use all links in Third-Party Websites and Third-Party Applications at your own risk. When you leave the App, the Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
9.2 App Stores. You acknowledge and agree that the availability of the App Services is dependent on the third party from whom you received the App license, e.g., the Apple App Store, or Google Play Store (the “App Store”). You acknowledge that the Agreement is between you and UpperCampus and not with the App Store. UpperCampus, not the App Store, is solely responsible for the App Services, including the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
10. Indemnification. You agree to indemnify and hold UpperCampus, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “UpperCampus Party” and collectively, the “UpperCampus Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, the App Services or any portion thereof; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users or the Partners; or (e) your violation of any applicable laws, rules or regulations. UpperCampus reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with UpperCampus in asserting any available defenses. This provision does not require you to indemnify any of the UpperCampus Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the App Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the App Services.
11. DISCLAIMER OF WARRANTIES AND CONDITIONS.
11.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE APP SERVICES IS AT YOUR SOLE RISK, AND THE APP SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. UPPERCAMPUS PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. UPPERCAMPUS PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (I) THE APP SERVICES WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE APP SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (III) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE APP SERVICES WILL BE ACCURATE OR RELIABLE.
11.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT UPPERCAMPUS PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD UPPERCAMPUS PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. UPPERCAMPUS MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. UPPERCAMPUS MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OR PARTNER-PROVIDED CONTENT OBTAINED THROUGH THE APP SERVICES.
11.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE APP SERVICES AND PARTNERS. YOU UNDERSTAND THAT UPPERCAMPUS DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE APP SERVICES OR PARTNERS THAT ACCESS THE APP SERVICES THROUGH THE PLATFORM. UPPERCAMPUS MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE APP SERVICES OR PARTNERS, OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE APP SERVICES OR FUTURE PARTNERS. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE APP SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
12. LIMITATION OF LIABILITY.
12.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL UPPERCAMPUS PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT UPPERCAMPUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE APP SERVICES OR UPPERCAMPUS PROPERTIES OR PARTNERS, ON ANY THEORY OF LIABILITY, RESULTING FROM: (A) THE USE OR INABILITY TO USE THE APP SERVICES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE APP SERVICES; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE APP SERVICES OR THE UPPERCAMPUS PROPERTIES, INCLUDING ANY PARTNER; OR (E) ANY OTHER MATTER RELATED TO THE APP SERVICES, PARTNER-PROVIDED CONTENT, OR UPPERCAMPUS PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A UPPERCAMPUS PARTY FOR DEATH OR PERSONAL INJURY CAUSED BY A UPPERCAMPUS PARTY’S NEGLIGENCE; OR FOR ANY INJURY CAUSED BY A UPPERCAMPUS PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL UPPERCAMPUS PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) ONE HUNDRED DOLLARS ($100.00) AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A UPPERCAMPUS PARTY FOR DEATH OR PERSONAL INJURY CAUSED BY A UPPERCAMPUS PARTY’S NEGLIGENCE; OR FOR ANY INJURY CAUSED BY A UPPERCAMPUS PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN UPPERCAMPUS AND YOU.
13. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is UpperCampus’s policy to terminate membership privileges of any Registered User who repeatedly infringes copyright upon prompt notification to UpperCampus by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on UpperCampus Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location in the App Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for UpperCampus’s Copyright Agent for notice of claims of copyright infringement is as follows: UpperCampus Inc., ; 44 Mamaroneck Avenue, Suite E White Plains, NY 10601.
14. MONITORING AND ENFORCEMENT.
14.1 UpperCampus reserves the right to: (a) remove or refuse to post any of Your Content for any or no reason in our sole discretion; (b) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates these Terms, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the App Services, or the public, or could create liability for the UpperCampus; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the App Services; and/or (e) terminate or suspend your access to all or part of the App Services for any or no reason, including without limitation, any violation of these Terms.
14.2 If UpperCampus becomes aware of any possible violations by you of these Terms, UpperCampus reserves the right to investigate such violations. If, as a result of the investigation, UpperCampus believes that criminal activity has occurred, UpperCampus reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. UpperCampus is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the App Services, including Your Content, in UpperCampus’s possession in connection with your use of the App Services, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce these Terms, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of UpperCampus, its Registered Users, any Partner, or user of the App Services or UpperCampus Properties, or the public, and all enforcement or other government officials, as UpperCampus in its sole discretion believes to be necessary or appropriate.
15. TERM AND TERMINATION.
15.1 Term. The Agreement commences on the date when you accept the Terms, and as applicable, the Supplemental Terms (as described in the preamble above) and remain in full force and effect while you use the App Services, unless terminated earlier in accordance with the Agreement.
15.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the App Services or (b) the date you accepted the Agreement and will remain in full force and effect while you use any App Service, unless earlier terminated in accordance with the Agreement.
15.3 Termination of App Services by UpperCampus. If you have materially breached any provision of the Agreement, or if UpperCampus is required to do so by law (e.g., where the provision of the App Services is, or becomes, unlawful), UpperCampus has the right to, immediately and without notice, suspend or terminate any App Services provided to you. You agree that all terminations for cause shall be made in UpperCampus’s sole discretion and that UpperCampus shall not be liable to you or any third party for any termination of your Account.
15.4 Termination of App Services by You. If you want to terminate the App Services provided by UpperCampus, you may do so by emailing the following address and indicating that you wish to close your Account for all of the App Services that you use.
15.5 Effect of Termination. Termination of any App Service includes removal of access to such App Service and barring of further use of the App Service. Termination of all App Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of App Services may involve deletion of Your Content associated therewith from our live databases. UpperCampus will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of App Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
15.6 No Subsequent Registration. If your registration(s) with or ability to access the App Services or the UpperCampus Properties, or any other UpperCampus community is discontinued by UpperCampus due to your violation of any portion of the Agreement or the UpperCampus Terms, or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re- register with or access the App Services, the UpperCampus Properties or any UpperCampus community through use of a different member name or otherwise. In the event that you violate the immediately preceding sentence, UpperCampus reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
16. INTERNATIONAL USERS. The App Services can be accessed from countries around the world and may contain references to the App Services and Content that are not available in your country. These references do not imply that UpperCampus intends to announce such App Services or Content in your country. The App Services are controlled and offered by UpperCampus from its facilities in the United States of America. UpperCampus makes no representations that the App Services are appropriate or available for use in other locations. Those who access or use the App Services from other countries do so at their own volition and are responsible for compliance with local law.
17. DISPUTE RESOLUTION. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with UpperCampus and limits the manner in which you can seek relief from us.
17.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the App Services, to any products sold or distributed through the App, or to any aspect of your relationship with UpperCampus, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or UpperCampus may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
17.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent: The Corporation Trust Company, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware, 19801. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at JAMS’s rules are also available at or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, UpperCampus will pay them for you. In addition, UpperCampus will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
17.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and UpperCampus. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
17.4 Waiver of Jury Trial. YOU AND UPPERCAMPUS HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and UpperCampus are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 17.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
17.5 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other claims shall be arbitrated.
17.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your UpperCampus username (if any), the email address you used to set up your UpperCampus account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
17.7 Severability. Except as provided in subsection 17.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
17.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with UpperCampus.
17.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if UpperCampus makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing UpperCampus at the following address: 44 Mamaroneck Ave, Suite E, White Plain, NY 10601 Attn: UpperCampus, Inc.
18. GENERAL PROVISIONS.
18.1 Electronic Communications. The communications between you and UpperCampus may take place via electronic means, whether you visit UpperCampus Properties or send UpperCampus e- mails, or whether UpperCampus posts notices on UpperCampus Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from UpperCampus in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that UpperCampus provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
18.2 SMS Communications. If you provide your phone number to us, you affirmatively consent to receive SMS communications, such as to alert you of a problem with your account or to assist with password recovery. You may opt out of SMS communications at any time by replying “opt out” to the originating number. After you send the SMS message “opt out” to us, we may send you an SMS to confirm that you have been unsubscribed. UpperCampus will not assess and charge for any calls or texts, but standard message charges or other charges from your wireless carrier may apply.
18.3 Release. You hereby release the UpperCampus Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of UpperCampus Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of UpperCampus Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a UpperCampus Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the App or any App Services provided hereunder.
18.4 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without UpperCampus’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
18.5 Force Majeure. UpperCampus shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
18.6 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to UpperCampus Properties, please contact us at firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
18.7 Exclusive Venue. To the extent the parties are permitted under the Agreement to initiate litigation in a court, both you and UpperCampus agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Westchester County, New York.
18.8 Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
18.9 Notice. Where UpperCampus requires that you provide an e-mail address, you are responsible for providing UpperCampus with your most current e-mail address. In the event that the last e-mail address you provided to UpperCampus is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, UpperCampus’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to UpperCampus at the following address: 44 Mamaroneck Ave, Suite E, White Plain, NY 10601 Attn: UpperCampus, Inc. Such notice shall be deemed given when received by UpperCampus by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
18.10 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
18.11 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
18.12 Accessing and Downloading the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Agreement is concluded between you and UpperCampus only, and not Apple, and (ii) UpperCampus, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between UpperCampus and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of UpperCampus.
(d) You and UpperCampus acknowledge that, as between UpperCampus and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and UpperCampus acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between UpperCampus and Apple, UpperCampus, 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 the Agreement.
(f) You and UpperCampus acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
18.13 Export Control. You may not use, export, import, or transfer the App Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the App Services, and any other applicable laws. In particular, but without limitation, the App Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the App Services, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by UpperCampus are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer any UpperCampus products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
18.14 Consumer Complaints. In accordance with California Civil 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 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
18.15 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.