DATE OF LAST REVISION: 3/26/2024
UpEngine (“
WE”/”
US”/“
OUR”) OWNS AND OPERATES THS WEBSITE UPENGINE.IO (“
WEBSITE”), In this agreement the following terms shall have the respective meanings assigned to them:
“Agreement”means these Terms and Conditions, Service descriptions, Terms of Use, Payment Terms and the Launch Proposal and any addenda. In the event of any conflict between the terms of this Agreement for the provision of Services, the details of the Launch Proposal shall prevail, except for payment terms where the Payment Schedule shall prevail
“Commencement Date” means the date of commencement of the Services as set out on the signed Project Brief;
“Fees” means the amounts payable by the Client for the Services provided by UpEngine as detailed on the
pricing page or the Launch Proposal given to Launch X customers;
“Initial Term” unless otherwise stated in Launch Proposal means 12 months from Commencement Date for Launch X contracts.
“Payment Terms” means the agreed schedule of payments that the customer shall make to UpEngine for the provision of services forming part of these Terms and Conditions;
“Services” means the services that UpEngine currently offers, details of which are on this WEBSITE and the services to be provided by UpEngine to the Client as specified in the Launch Proposal for Launch X customers.
This Agreement is by and between UpEngine, its Clients their heirs, assigns, agents and contractors and Users of UpEngine’s website and is made effective as of the date of electronic execution. By accessing the website, you acknowledge and agree that you have read, understood, acknowledged and agreed to be bound by all the terms and conditions of this Agreement.
YOU MUST BE AT LEAST EIGHTEEN (18) YEARS OLD TO MAKE A PURCHASE OR START A DEMO ON THIS WEBSITE.
BY USING THIS WEBSITE YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE, THEN DO NOT USE THIS WEBSITE OR ANY OF THEIR CONTENT OR SERVICES. THESE TERMS OF SERVICE MAY BE AMENDED OR UPDATED BY
UPENGINE FROM TIME TO TIME WITHOUT NOTICE AND THE TERMS OF SERVICE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEBSITE. IT IS YOUR RESPONSIBILITY TO REVIEW THESE TERMS OF SERVICE FOR ANY CHANGES. YOUR USE AFTER ANY AMENDMENTS OR UPDATES OF THESE TERMS OF SERVICE SHALL SIGNIFY YOUR ASSENT TO AND ACCEPTANCE OF SUCH REVISED TERMS. ANY NEW FEATURES THAT MAY BE ADDED TO THIS WEBSITE FROM TIME TO TIME WILL BE SUBJECT TO THESE TERMS OF SERVICE, UNLESS STATED OTHERWISE. YOU SHOULD VISIT THIS PAGE PERIODICALLY TO REVIEW THESE TERMS OF SERVICE.
IF YOU ARE ACCEPTING THESE TERMS OF SERVICE ON BEHALF OF A CORPORATION OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY RIGHT AND AUTHORITY TO ENTER INTO THESE TERMS OF SERVICE ON BEHALF SUCH CORPORATION OR ENTITY AND TO BIND SUCH CORPORATION OR ENTITY TO THESE TERMS OF SERVICE.
PLEASE READ THIS AGREEMENT CAREFULLY.TERMS OF SERVICE FOR UpEngine UpEngine (“UpEngine”, “
us”, “
we”) owns and operates certain technology including, without limitation, the website operated at
UpEngine.io, and such other locations as made available from time to time (collectively, the “
Website”) mobile applications available for download to Android, iPhones and other supported Platforms (the “
App”), UpEngine Services (defined herein), Sites Services (defined herein) and other products and services which may be offered therefrom from time to time (collectively, the “
Services”).
By accessing or using the Services, you confirm that you are 13 years of age or older, have read, understand and agree to be bound by these Terms of Service and agree that these Terms of Service form a binding agreement between you and us, with respect to the Services, and your use of them.PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE, BUT ARE NOT LIMITED TO, VARIOUS LIMITATIONS AND EXCLUSIONS, AND INDEMNITIES. THESE TERMS OF SERVICE MAY BE AMENDED OR UPDATED BY US FROM TIME TO TIME WITHOUT NOTICE AND MAY HAVE CHANGED SINCE YOUR LAST VISIT TO OR USE OF THE SERVICES. IT IS YOUR RESPONSIBILITY TO REVIEW THESE TERMS OF SERVICE FOR ANY CHANGES. YOUR USE, WHICH USE INCLUDES YOUR CONTINUING TO MAKE AVAILABLE YOUR CONTENT ON THE SERVICES, AFTER ANY AMENDMENTS OR UPDATES OF THESE TERMS OF SERVICE SHALL SIGNIFY YOUR ASSENT TO AND ACCEPTANCE OF SUCH REVISED TERMS. ANY NEW FEATURES THAT MAY BE ADDED TO THE SERVICES FROM TIME TO TIME WILL BE SUBJECT TO THESE TERMS OF SERVICE, UNLESS STATED OTHERWISE. IF YOU DO NOT AGREE TO ABIDE BY THIS OR ANY FUTURE VERSION OF THE TERMS OF SERVICE, DO NOT USE OR ACCESS (OR CONTINUE TO USE OR ACCESS) THE SERVICES. YOU SHOULD VISIT THIS PAGE PERIODICALLY TO REVIEW THESE TERMS OF SERVICE.1. User Categories. The Services may be used in different ways by different categories of users. Through your use of the Services, you will be categorized as one of the following:(a)
“Sites Customer” – if you are a Member that has requested or is using the Sites Services (defined below);(b)
“Member” – if you are an individual or organization using the Services under your own account to access the UpEngine Services (defined below); or(c)
“Visitor” – if you are an individual or organization providing information, reviews, comments, photos or other content through the Services.(collectively, the
“Users”, or each a
“User”)
2. About UpEngine Services. The “
UpEngine Services” enable Members with a platform including certain marketing automation and other tools to contact, obtain information and reviews from, and track relationships with end user customers, including Visitors. To obtain UpEngine Services, you must register for a User Account. By enrolling for UpEngine Services, you agree to pay such UpEngine Services Fees (defined below) as invoiced in accordance with these Terms of Service.
3. About Sites Services. Members may request and obtain website design services (“
Sites Services”) from us, which include, subject to these Terms of Service and an order form (each an “
Order Form”) agreed to between us and you from time to time, website design (including building of a long form webpage, reviews page, and showroom page), a strategy consultation, content writing, hosting, maintenance, and support. You must be a registered Member with a User Account to request Sites Services. By requesting Sites Services, Sites Customers agree to pay such Sites Services Fees (defined below) as invoiced to you within the UpEngine Services Fees as set out below. The Sites Services that you order will be set out more specifically in your Order Form(s) and you hereby agree that such additional terms and conditions set out in each Order Form apply to the Sites Services and your use thereof. You further understand and agree that, as set out in an Order Form, we may subcontract the provision of certain of these Sites Services, or act as your agent to obtain certain of these Sites Services for your website design from third party providers as will be provided in your Order Form (“
Third Party Providers”). For example, if you request call recording or forwarding services on your Order Form, you authorize us to act as your agent to obtain services from Twilio on your behalf. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third Party Providers. Reference on the Service to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise, does not constitute or imply (a) endorsement, sponsorship or recommendation thereof by, or (b) or any affiliation thereof with UpEngine.
4. Registration Data; Account Security. You are not required to create a user account or provide any personal information in order to visit the Website, but in order to use certain features of the Services, you must register for an account. In consideration of your use of the Services, you agree to: (a) provide us with accurate, current and complete information about you as may be prompted by any registration forms on the Service (“
Registration Data”); and (b) maintain and promptly update the Registration Data, and any other information you provide to us, to keep it accurate, current and complete. Upon providing Registration Data to us through the Services, you will provide account information (your “
User Account”). You hereby agree to be fully responsible for (w) all use of your User Account, (x) any action that takes place using your User Account by any person or automated process, (y) maintaining the confidentiality and security of the password to your User Account, and (z) immediately notifying us upon any unauthorized use of your password or your User Account. For greater clarity, Visitors are not required to create an account.
5. Content. In these Terms of Service, “
Content” means all materials and content of any type, including, but not limited to, photos, graphics, illustrations, images, designs, profiles, messages, information, notes, text, information (including Registration Data), music, sound, video, articles, themes, code, and software.
6. User Content and Your License to Us. The Service permits you (or any person using your User Account) to submit, upload, provide, post, input, transmit, copy, make available, distribute, or otherwise transfer to us, or any third party using the Services Content (collectively, your “
User Content”), and we do not claim ownership over any User Content. By providing any User Content, you(a) acknowledge that UpEngine reserves the right to refuse to accept, display, or transmit any User Content in its sole discretion,(b) are deemed to have granted UpEngine the worldwide, royalty-free, fully-paid up, perpetual, irrevocable, non-exclusive right and license to use, distribute, reproduce, reformat, modify, adapt, delete, publish, translate, copy, edit, perform, display and create derivative works from such User Content as permitted by the functionality of the Services (the “User License”) on the following terms:
the User License is limited to the purpose of offering the Services as may exist from time to time, in any medium whatsoever, marketing the Services by distributing case studies through social media, email or print, or to ensure adherence to, or enforce these Terms of Service,the User License includes UpEngine’s right to sublicense to third party service providers for the purpose of offering the Services, at all times in accordance with these Terms of Service, andthe User License will end, and UpEngine will cease to use User Content, a commercially reasonable period after such User Content is removed from the Service,(c)
are been deemed to have thereby represented and warranted to us that (1) you have all right, title and interest to grant the User License, (2) the User Content does not infringe on any other person’s copyright, trade-mark, proprietary interests, trade secrets, privacy or other intellectual property rights, (3) the User Content is accurate and complete, and (4) no User Content contains any libelous, defamatory or otherwise unlawful material, and(d) hereby agree to indemnify us and hold us harmless from any claims, losses, damages or expenses incurred by us in respect of any third party claims that your User Content infringes on any other person’s rights (including all of the rights set out in (b) above).You acknowledge and agree that we may retain a copy or copies of your User Content for archival or compliance purposes or to otherwise provide the Services to you or others, including by way of aggregation or analytics which UpEngine may provide to you or others from time to time, subject always to your license to us set out above, even if you delete your account to which your User Content is connected. If permitted by the functionality of the Services, you may delete your User Content from the communication facilities thereupon, though we may retain a copy internally thereof for compliance purposes.As a Visitor, by providing Content including personal information (“
Visitor Content”), you acknowledge and agree that we will deal with all Visitor Content in accordance with the Privacy Policy; however such Visitor Content will be available to all Members, in individual or aggregate form, and may share, copy, modify or otherwise use such Visitor Content for their commercial or non-commercial purposes, for which we are in no way liable or responsible for.
7. Service Content. All Content available or stored on the Services other than your User Content, including the Services itself, all other Users' Content, any Content made available by UpEngine or any third party, and the selection and arrangement of all such Content and User Content (collectively, the “
Service Content”), is the proprietary property of us, the Users or our licensors with all rights reserved, and UpEngine (or, as applicable, our Users or licensors) retain and shall retain all right, interest and title in and to all Service Content.
8. Our License to You. Provided that you are eligible for use of the Service, and that you agree to these Terms of Service, we hereby grant you a limited, personal, non-transferable, revocable (at any time with or without notice or cause) and non-exclusive right and license to access and use the Services and to download or print a copy of any portion of the Service Content solely for your personal, non-commercial (except in the case of Members or Sites Customers) use, subject to these Terms of Service and provided that you keep all copyright or other proprietary notices intact.
9. Invoicing and Payment. By requesting UpEngine Services or Sites Services through email, phone or your User Account, you agree to pay the following fees as invoiced on a monthly basis:(a)
“UpEngine Service Fees” means the monthly fees as set out on the Website, an order form, or otherwise provided by us from time to time;(b)
“Sites Service Fees” means the monthly fees, one-time set-up fee as set out on the Website, an order form or otherwise provided by us from time to time. If the Sites Customer requests Landing Page set up or additional services regarding landing pages, there shall be an additional monthly and set up fee as provided to you. (UpEngine Service Fees and Sites Service Fees collectively referred to as
“Fees”).The Fees are payable by credit card as set out herein. By completing the input of your credit card information on the Services, you authorize us to process the Fees on a monthly basis until we receive notice of cancellation from you on the terms as set out herein. Your payment to us will automatically renew at the end of your monthly term, unless you timely cancel the UpEngine Services or Sites Services as set out in Section 12. If you fail to timely pay the Fees, or our withdrawal fails, for any reason whatsoever, you will be downgraded to a free version of the UpEngine Services or Sites Services, or both, as applicable. You acknowledge and agree that the pricing and Fees are exclusive of any applicable taxes and may be updated or amended from time to time upon notice to you at least 30 days prior to the end of the current monthly term. Your continued use of the Service following such notice constitutes your acceptance of any new or increased charge or Fee. Failure to timely pay Fees will be deemed a material breach of these Terms of Service and we may, but are not obligated to, terminate or cancel your access to the Services, or any Service, in our sole discretion, and may do so without a cure period. You further undertake to inform us immediately, in writing, of any change in your payment information and acknowledge and agree that we shall not be liable for any payment failure arising from a change in payment information.
10. Termination. You may cancel the UpEngine Services or Sites Services upon written or in-app notice of cancellation prior to the end of the current monthly term. Members may deliver such cancellation notices by emailing support@UpEngine.io with the subject title “Cancellation of Membership” or by following cancellation procedures in the App. No cancellation is valid until receipt of confirmation of cancellation is received. We may immediately terminate the UpEngine Services, Sites Services, or any Services related thereto upon your breach of a material provision of these Terms of Service. Sites Services are provided as an optional add-on to UpEngine Services and shall terminate automatically on termination or cancellation of the UpEngine Services. Termination of your access to the Services may result in the deletion of all of your Content, and we may choose to but will not be obligated to provide any backup or retrieval of your Content. You acknowledge and agree that we may terminate the Services, your access to them, or any portion thereof, in our sole discretion without any liability whatsoever to you or any third party. Any termination by us shall be in addition to any and all other rights and remedies that we may have.
11. User Conduct (Things You Must Not Do). Without restricting anything else in these Terms of Service, you agree not to(a) alter, modify, copy, distribute, frame, reproduce, republish, download, display, post, transmit, or sell in any form or by any means, in whole or in part, Service Content,(b) except to the extent required to be permitted by the law of your jurisdiction, reverse engineer, decompile, or disassemble, translate or otherwise attempt to extract the source code from the Services, the Service Content, or any part thereof,(c) make the Services or Service Content available to anyone, or permit anyone to access same, nor license, sublicense, sell, resell, publish, republish, transfer, assign, distribute, rent, lease, time-share, copy or otherwise commercially exploit the Service in any way except in furtherance of your permitted use in accordance with these Terms of Service ,(d) except as expressly permitted in the use of UpEngine Services and Sites Services, republish any Service Content on any Internet, Intranet or Extranet site or incorporate the information in any other database or compilation, without our prior written permission or the permission of the particular Content owner, as the case may be,(e) use any data mining, robot or similar data gathering or extraction methods with respect to any Services or any Service Content,(f) register for more than one User Account, register for a User Account on behalf of an individual other than yourself (except if you are the parent or legal guardian to such individual), or register for a User Account on behalf of any group or non-individual entity (except if you are duly authorized to do so by such group or entity),(g) impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age or your affiliation with any person or entity, in your Registration Data, User Account or otherwise,(h) upload, post, transmit, share or otherwise make available on the Services any User Content that(i) consists of any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation that is prohibited by law, or(ii) contains any private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Insurance Numbers, US Social Security numbers, credit card numbers, financial information and other personally identifying or private information, unless that third party has consented to such use of its private information,(iii) in our sole discretion, is harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable,(iiii) contains Trojan Horses, worms, time bombs, or software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or(v) would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law,(i) disable or circumvent any access control or related process or procedure established with respect to the Service, or attempt to gain unauthorized access to the Services or Service Content,(j) remove any copyright or other proprietary notices on or in the Services, Service Content or any part thereof,(k) solicit personal information from anyone under 18 or solicit passwords or personally identifying information from any person for unlawful purposes,(l) use the Services or any Service Content to “stalk”, intimidate, harm or otherwise harass another User or another person,(m) intentionally or unintentionally violate any applicable local, provincial, state, national or international law, including any regulations thereto, or any court order or lawful order of any governmental authority,(n) access the Services in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the Service or Service Content,(o) utilize the Services in any way except as expressly permitted by these Terms of Service, including by developing or using any software tool or other application that interfaces with the Services or the Website except for standard web browsers,(p) interfere with or disrupt the Services or Service Content (including the servers, networks or technology connected to the Service), or(q) use or attempt to use another's User Account or the Service without express authorization from us or the applicable User.As a Visitor, you further agree not to:(r) solicit personally identifying information from any person for commercial purposes;(s) use any Service Content or User Content for commercial purposes.
12. Nudity and Objectionable Material. You acknowledge and agree that the Services must remain a safe site for families with children, so you agree not to, and we strictly prohibit, the uploading and display of any User Content portraying explicit nudity, adult content, or that is unacceptable for viewing by minors or objectionable, in our sole discretion. For example, but without limitation, prohibited User Content would include material that would be unacceptable in a public museum where minors visit, or User Content that would only be appropriate for adult sites, adult magazines, or R-rated movies. You acknowledge and agree that the sole discretion of whether User Content is suitable belongs to us, and we reserve the right (but have no obligation) to (a) delete any User Content we deem to violate these Terms of Service, or (b) to cancel the User Account and any corresponding Services from which such User Content made available on the Service.
13. User Content Responsibility. You acknowledge and agree that (a) you are solely responsible for all of your User Content, and (b) we may, but are not obligated to, review and delete or remove (without notice) any User Content, in our sole discretion, including, without limitation, any User Content that violates these Terms of Service. You agree that you must evaluate, and bear all risks associated with, the use of any User Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Service Content (except for these Terms of Service, the Privacy Policy and other legally binding agreements) for any purpose whatsoever. You will also comply with any of your own local laws regarding online conduct and acceptable content, including laws relating to the export of data if you are outside of the US.
14. Other Uses. Any use of the Services or the Service Content other than as specifically authorized in these Terms of Service, without our prior written permission, is strictly prohibited and will automatically terminate all licenses granted by us herein. Such unauthorized use may also violate applicable laws including, without limitation, copyright, privacy, trade-secrets and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms of Service shall be construed as conferring any other license to intellectual property rights, whether by estoppel, implication or otherwise.
15. Trademarks. Notwithstanding anything else in these Terms of Service, “UpEngine”, “Sites”, the UpEngine logo and design, and all other trade-marks, trade dress, graphics, logos, designs, page headers, button icons, scripts and service names used by UpEngine on or in connection with the Services (collectively, the “Marks”) are registered trademarks, trademarks or trade dress of UpEngine or our licensors and all right, title and interest in and to the Marks, whether registered or not, are and shall remain vested in us or in our licensors, as applicable. The Marks may not be used, including as part of trademarks, trade names, trade dress or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without our prior written permission.
16. Third Party Sources and Content. The Services may contain (or you may be presented with through the Services) links to other web sites, social accounts, SMS, emails (“Third Party Sources”) as well as Content belonging to or originating from parties other than us or our Users (the “Third Party Content”). Such Third Party Sources and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Sources accessed through the Service or any Third Party Content available on the Services, including, without limitation, the content, accuracy, offensiveness, opinions, reliability or policies of or contained in the Third Party Sources or the Third Party Content. The inclusion of or linking to any Third Party Site or any Third Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Service and access the Third Party Sources, you do so at your own risk and you acknowledge and agree that our terms and policies do not govern same. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third Party Site to which you navigate from the Service. Reference on the Service to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise, does not constitute or imply (a) endorsement, sponsorship or recommendation thereof by, or (b) or any affiliation thereof with UpEngine.(a) UpEngine may make arrangements with third-party providers, or facilitate Client making arrangements with third-party providers, that provide products or services in connection with the Services described in this Agreement. If Client uses applications, integrations, add-ons, software, code, online services, systems and other products not developed by UpEngine ("Third-Party Products") in connection with or otherwise made available through the Services, those products may make Third-Party Content available to Client and may access Client’s instance of the Services, including Client Data. Client agrees and acknowledges that use of such Third-Party Products may require Client to enter into separate terms and conditions with such third-party. UpEngine is not a party to any such terms and shall not be liable thereunder. UpEngine does not warrant or support Third-Party Products or Third-Party Content (whether or not these items are designated by Podium as "powered", "verified" or otherwise) and disclaims all responsibility and liability for these items and their access to the Services, including their modification, deletion, disclosure or collection of Client Data. UpEngine is not responsible in any way for Client Data once it is transmitted, copied or removed from the Services.
17. Modifications to Service. We reserve the right at any time and from time to time to perform maintenance on, to add to, to remove from, to make upgrades and updates to, to suspend, and to modify the Services or any part thereof with or without notice. NOTWITHSTANDING ANY PROVISION HEREIN, YOU AGREE THAT WE SHALL NOT BE LIABLE IN ANY MANNER TO YOU OR TO ANY THIRD PARTY FOR ANY SUCH MAINTENANCE, ADDITION, REMOVAL, UPGRADE, UPDATE, SUSPENSION OR MODIFICATION.
18. Advertisements. We may run advertisements and promotions on the Services. You agree that we have the right to run such advertisements and promotions. The manner, mode and extent of advertising by us on the Services is subject to change in our sole discretion. It is your responsibility to ascertain whether any information or materials downloaded from the Services are free of viruses, worms, Trojan Horses, or other items of a potentially destructive nature.
19. General Practices regarding Use and Storage. You acknowledge that we may establish general practices and limits concerning use of the Services, including, without limitation, the maximum number of days that User Content will be retained by the Services, the maximum number of User Content that may be transmitted, posted, shared, used, copied, or otherwise made available on the Service (whether per User Account or globally), the maximum size of any User Content, the maximum disk space that will be allotted on the Service servers on any User's behalf, and the maximum number of times (and the maximum duration for which) any User may access the Service in a given period of time. You agree that we have no responsibility or liability for the deletion or failure to store any User Content and other communications or Content maintained or transmitted by the Service. You acknowledge that we reserve the right to log off or otherwise disconnect any User Account that is inactive for an extended period of time in our sole discretion.
20. User-and-User Disputes. You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users and to take any action with respect to any User Account pertaining to such Users, in our sole discretion.
21. Disclaimers.(a)
No Responsibility for Others’ Content. We are not responsible or liable in any manner for any User Content or Third Party Content available on or through the Services, whether made available or caused to be made available by Users or by any of the technology associated with or utilized in the Services. Although we provide these Terms of Service and other policies and rules for User conduct, we do not control and are not responsible for our Users’ actions and are not responsible for any Content you may encounter on the Service, be it User Content or Third Party Content. We are not responsible for the conduct, whether online or offline, of any User. Notwithstanding anything else in these Terms of Service, UpEngine has no responsibility to monitor any User Content or Third Party Content.(b)
Availability. The Services, or any Service, may be temporarily unavailable from time to time for maintenance or other reasons. We assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, User Content. We are not responsible for any problems or technical malfunction, including, without limitation, any problem or malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or persons, traffic congestion on the Internet or at any web site (including the those in the Services) or combination thereof. We may periodically add or update the information and materials on the Sites Services without notice.(c)
AS IS; AS AVAILABLE. THE SERVICE AND THE SERVICE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND UpEngine DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. UpEngine CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICES. UpEngine DOES NOT REPRESENT OR WARRANT THAT THE SERVICE CONTENT IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE, OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THEREFORE, YOU SHOULD EXERCISE CAUTION IN THE USE AND DOWNLOADING OF ANY SUCH CONTENT AND USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES. UpEngine DISCLAIMS ANY AND ALL RESPONSIBILITY FOR ANY THIRD PARTY CONTENT OR THIRD PARTY SOURCES.
22. Limitation on Liability. EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED (AND, THEN, ONLY TO THE STRICT EXTENT OF SUCH RESTRICTION), IN NO EVENT WILL UpEngine, OR ITS DIRECTORS, PARTNERS, OFFICERS, EMPLOYEES, CONTRACTORS OR AGENTS, BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, FOR ANY LOST PROFITS OR LOST DATA, ARISING FROM YOUR USE OF THE SERVICE, THE SERVICE CONTENT OR OTHER MATERIALS ON OR ACCESSED THROUGH THE SERVICE (INCLUDING ALL THIRD PARTY CONTENT AND THIRD PARTY SOURCES), EVEN IF UpEngine IS AWARE OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, UpEngine’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO UpEngine FOR THE SERVICE DURING YEAR IN WHICH YOUR SUCH CAUSE AROSE, BUT IN NO CASE WILL UpEngine’S LIABILITY TO YOU EXCEED $100.00. YOU ACKNOWLEDGE THAT IF NO SUCH FEES ARE PAID BY YOU TO UpEngine FOR THE SERVICES, YOU SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM UpEngine, REGARDLESS OF THE CAUSE OF ACTION. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. NOTHING IN THESE TERMS OF SERVICE IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY THAT MAY NOT BE LAWFULLY EXCLUDED OR LIMITED.
23. Representations, Warranties, and Indemnification.(a) IF YOU ARE A MEMBER, YOU HEREBY REPRESENT AND WARRANT THAT YOU WILL AT ALL TIMES REMAIN SOLELY RESPONSIBLE FOR ENSURING THAT YOU COMPLY WITH ALL PRIVACY, DATA PROTECTION AND ANTI-SPAM LAWS APPLICABLE TO YOUR RETENTION AND USE OF ANY AND ALL VISITOR INFORMATION OR CONTENT COLLECTED THROUGH THE SERVICES, SENT VIA THE SERVICES OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE FEDERAL TRADE COMMISSION'S TELEMARKETING SALES RULE, THE TELEPHONE CONSUMER PROTECTION ACT OF 1991, THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996, THE GRAMM-LEACH-BILEY ACT OF 1999 AND DO NOT CALL RULES AND PROHIBITIONS. YOU SHALL INDEMNIFY AND HOLD UpEngine AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, AND EMPLOYEES, HARMLESS FROM ALL CLAIMS, ACTIONS, PROCEEDINGS, DEMANDS, DAMAGES, LOSSES, COSTS, AND EXPENSES (INCLUDING REASONABLE LEGAL FEES), INCURRED IN CONNECTION WITH ANY CONTENT SUBMITTED, POSTED, TRANSMITTED OR MADE AVAILABLE BY YOU THROUGH THE SERVICES AND/OR ANY VIOLATION BY YOU OF THESE TERMS OF SERVICE.(b) IF YOU ARE A VISITOR, YOU HEREBY WAIVE ANY CLAIM YOU MAY NOW HAVE OR MAY HAVE AT ANY TIME IN THE FUTURE AGAINST UpEngine REGARDING YOUR USE OF THE SERVICES, OR ANY USE OF YOUR CONTENT, INCLUDING YOUR PERSONAL INFORMATION, BY ANY MEMBER AND YOU HEREBY ACKNOWLEDGE THAT UpEngine IS NOT AND WILL NOT BE RESPONSIBLE IN ANY WAY OR ANY UNDER THEORY OF LAW FOR ANY SUCH ACTION OF ANY MEMBER.(c) Client also warrants and represents that: (a) Client has sole ownership of any Client Data it provides to UpEngine, or otherwise has legal rights to provide such Client Data, and Client Data and UpEngine's use thereof will not violate third-party rights, including intellectual property, privacy and publicity rights; (b) UpEngine's possession and/or use of the Client Data on Client’s behalf in connection with the Services, as contemplated hereunder, will not violate any contract, statute, or regulation; (c) any Client Data Client and/or Client’s authorized representative(s) submit for publication on an online review or ratings website as a provider of goods or services will be true and accurate, and will only concern Client or the goods and/or services that Client provides; (d) Client is authorized to provide UpEngine with any Customer, Client or Authorized User information it provides in connection with the Services, including any personally identifying information; and (e) Client and/or Client’s authorized representative(s) will only use the Services for interaction with actual Customers. If Client receives any take-down requests or infringement notices related to Client Data or its use of Third-Party Products, it will promptly stop using these items with the Services and notify UpEngine immediately. Additionally, if an integration is included in the Services Client orders, Client grants UpEngine the right to access Client’s Information or CRM system directly or through a third-party service for the purposes of fulfilling UpEngine's obligations under this Agreement, and Client warrants that Client is not restricted by law or applicable agreement from granting UpEngine such right. UpEngine will not be held liable for any consequences of false and/or inaccurate content published to an online review or ratings website through UpEngine by Client or its Authorized Users.(d) Client understands and agrees that the Services are intended to allow Client to send electronic communication, including but not limited to text messages, only to Client’s own current Customers who have consented to the receipt of such communications and are provided with necessary notices in accordance with applicable law and regulations. Accordingly, Client will for the duration of the Subscription Term: (a) provide all required disclosures to Customers and obtain all required consents and/or authorizations from Customers, based on applicable laws, prior to utilizing the Services; and (b) obtain all necessary rights, releases and consents to allow Client Data to be collected, used and disclosed in the manner contemplated by this Agreement and to grant UpEngine the rights herein. Client agrees and acknowledges that Client is solely responsible for its compliance with applicable law and regulations and shall not rely on the Services for any such compliance. Use of the Services does not guarantee compliance with applicable law or regulation and UpEngine expressly disclaims any liability for Client’s non-compliance. UpEngine reserves the right to suspend or terminate Client’s access to the Services or the messaging feature if UpEngine believes, in its discretion, that Client has violated this.
24. Privacy. We care about the privacy of our Users. You can view our privacy policy at
upengine.io/privacy. Without limiting that, you acknowledge that we may (but have no obligation to) access, preserve and disclose your User Account data and any User Content if, in good faith, we believe that same is reasonably needed to (a) comply with applicable law or legal process, (b) enforce these Terms of Service, or (c) protect against imminent harm to any person, any safety of any person, or any property of any person. You further acknowledge that the Service uses the Internet and other, third-party networks, and that, accordingly, any information processed using the Service may be processed or transmitted over various networks (including those outside of our control).
25. Copyright, Intellectual Property and Content Complaints. If you believe that any Content on the Service infringes upon any copyright or other intellectual property right that you own or control, or if you otherwise object to any User Content that you find on the Service, you may send a written notification to , our designated agent for copyright and other complaints:by e-mail: [support@UpEngine.io]by regular mail:
UpEngine
Address available upon requestThe notification must be a written communication that includes the following:(a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;(b) if the complaint is about copyright or other intellectual property rights, identification of the copyrighted work or other intellectual property right claimed to have been infringed, or, if multiple infringements are covered by a single notification, a representative list of such infringements;(c) if the complaint is about objectionable content, the reasons for the objection;(d) identification of the material that you are objecting to and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;(e) information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted;(f) a statement that the information in the notification is accurate; and(g) if the complaint is about copyright or other intellectual property rights, a statement under penalty of perjury, that (i) the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed, and (ii) the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the owner thereof, its agent or the law.
26. Abuser and Repeat Abuser Policy. We have adopted a policy of terminating, in appropriate circumstances and at our sole discretion, members who are deemed to be repeat infringers of intellectual property or users or posters of objectionable content. We may also, at our sole discretion, limit access to the Services or terminate the User Account of any User who infringes any intellectual property rights of us or others, whether or not there is any repeat infringement, or otherwise uses or posts objectionable content through the Services.
27. Governing Law; Venue and Jurisdiction. You agree that the laws of the State of Florida, US, without regard to principles of conflict of laws, will govern these Terms of Service and any dispute of any sort that might arise between you and us. You hereby irrevocably attorn to the exclusive jurisdiction of the Courts of the State of Florida, US with respect to any dispute hereunder.
28. Indemnity. You agree to indemnify and hold UpEngine and its directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney's fees, arising out of or in connection with any User Content and any Third Party Content, your use of the Services, services provided by Third Party Providers, your conduct in connection with the Services or with other Users of the Services, or any violation of (a) these Terms of Service, (b) any law, or (c) any right of any third party.
29. Submissions. Notwithstanding any term herein related to User Content, you acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Services (collectively, “Submissions”), provided by you to us are non-confidential and shall become the sole property of UpEngine, who shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination thereof for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
30. Electronic Communications. When you use the Services or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail to the email address attached to your User Account through your Registration Data or by posting notices on (a) the Service at-large, or (b) into your personal message centre available on the Services. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. If you are a Member, you represent and warrant that you will fallow all applicable laws, including but not limited to Canada’s anti-spam laws, when communicating with Visitors or other end users and agree to indemnify us, and any of our affiliates, directors, officers, or representatives, for any losses or claims arising from or related to your breach of any such laws.
31. Merger or Acquisition. It is possible that UpEngine may be acquired or transferred as part of a merger, acquisition or other change of control. In the event of such a transaction, you understand and agree that we may assign our rights under these Terms of Service and that your personal information may be transferred to the succeeding entity in accordance with our Privacy Policy. You will be provided with reasonable notice and an opportunity to opt-out of the transfer.
32. Interpretation. Headings are for convenience only and shall not be used to interpret, or as a guide for interpretation of, these Terms of Service. The word “or” is not exclusive and the word “including” is not limiting (whether or not non-limiting language such as “without limitation” or “but not limited to” or other words of similar import are used with reference thereto). A word importing the masculine gender includes the feminine and neuter, a word in the singular includes the plural, a word importing a corporate entity includes an individual, and vice versa and “person” will mean an individual, partnership, corporation (including a business trust), joint stock company, trust unincorporated association, joint venture, or other entity or a government or any agency, department or instrumentality thereof and vice versa.
33. Other. These Terms of Service constitutes the entire agreement between you and us regarding the use of the Services, superseding any prior agreements between you and us relating to your use of the Services. Our failure to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision in that or any other instance. If any provision of these Terms of Service is held invalid, unlawful, void or unenforceable for any reason, that provision shall be deemed severable and the remainder of these Terms of Service shall continue in full force and effect. These Terms of Service shall enure to the benefit of, and be binding upon, parties hereto and their respective heirs, executors, administrators, successors, and assigns.
34. English Language. The parties have requested and agree that these Terms of Service and all documents relating thereto be drawn up in English. Les parties ont demandé que cette convention ainsi que tous les documents qui s’y rattachent soinet rédigés en anglais.End of Terms of Service (Last Updated: March 26th 2024).
