THIS IS A CONTRACT. PLEASE CAREFULLY READ THE FOLLOWING TERMS BEFORE ACCESSING THIS SITE. BY ACCESSING THE SITE, YOU ACCEPT AND AGREE TO ALL OF THE COVENANTS AND CONDITIONS IMPOSED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS THE SITE.
BY USING UPCASE.COM’S SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO THESE TERMS. YOU ALSO AGREE TO REVIEW THIS AGREEMENT PERIODICALLY TO BE AWARE OF MODIFICATIONS TO THE AGREEMENT, WHICH MODIFICATIONS THOUGHTBOT MAY MAKE AT ANY TIME. YOUR CONTINUED USE OF THIS SITE WILL BE DEEMED YOUR CONCLUSIVE ACCEPTANCE OF ANY MODIFIED AGREEMENT.
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thoughtbot reserves the right to modify these Terms at any time. Except as otherwise stated herein, any change to these Terms is effective immediately after thoughtbot gives notice to the User. Notice can be given through e-mail, a posting on the Site or any other means by which a User may obtain notice. User agrees to check the Site periodically for changes to these Terms. Any use of the Site after changes have been made shall be deemed acceptance of those changed terms and/or conditions.
thoughtbot hereby grants each Customer a limited, non-exclusive, non-sublicensable and non-transferable license to Access the content and information available in the Upcase Content according to the provisions contained herein, and subject to the payment of the applicable purchase or subscription fees and adherence to these Terms.
Each Multi-User Subscriber may only allow its employees and agents to access the Upcase Content. If the Multi-User Subscriber’s license terminates, the Multi-User Subscriber’s employees and agents shall no longer have Access to the Upcase Content. Each Multi-User Subscriber agrees that the Upcase Content may not be Accessed by more than the authorized number of Users purchased by the Multi-User Subscriber. Each User shall be authorized to Access the Upcase Content from any Internet connection.
A Multi-User Subscriber administrator selected by the Subscriber (the “Administrator”) shall be designated to oversee and be responsible for management of the User accounts.
thoughtbot strives to provide the Upcase Content to its Customers on a continuous basis. To that end, thoughtbot will take all commercially reasonable efforts to provide uninterrupted Access to the Upcase Content to its Customers. However, from time to time, Customers may be unable to Access the Upcase Content due to conditions beyond thoughtbot’s control. Such conditions include, but are not limited to: force majeure, acts of God, power outages, and the acts of computer hackers and others acting outside the law. Also, from time to time, Access may be unavailable due to software issues, server downtime, increased Internet traffic or downtime, programming errors, regular maintenance of the system, and other related reasons. In response to any unavailability of the Upcase Content to its Customers, thoughtbot will take all commercially reasonable steps to ensure Access is restored within a reasonable period of time. The term “commercially reasonable,” as used in these Terms, shall mean reasonable efforts taken in good faith without an unduly or burdensome use or expenditure of time, resources, personnel or money.
thoughtbot endeavors to provide the highest quality content to its Customers. To that end, thoughtbot reserves the right, in its sole discretion, to change, modify, or discontinue any aspect or feature of this Site in whole or in part, including, without limitation, the content, availability, Access and/or the Terms of this Site. Such changes, modifications, additions or deletions will be effective immediately upon notice thereof, which notice may be made by posting such changes on this Site.
Users are solely responsible for ensuring that they have sufficient and compatible hardware, software, telecommunications equipment and Internet service necessary for use of the Site.
User expressly agrees to refrain from doing, either personally or through an agent, any of the following “Prohibited Conduct”:
To ensure that Users of the Site do not engage in Prohibited Conduct, thoughtbot reserves the right to monitor use of the Site and reserves the right to revoke or deny Access to the Upcase Content to any person or entity whose use of the Upcase Content suggests Prohibited Conduct. Access of the materials available at the Upcase Content beyond that of normal patterns of use that suggests systematic copying of the materials constitutes abuse of the Upcase Content and will result in revocation or denial of Access to the Upcase Content. The terms “normal patterns” and “abuse” shall be determined solely by thoughtbot.
You agree not to violate any U.S., foreign or international software or technology export laws and regulations, including without limitation the U.S. Export Administration Regulations.
thoughtbot warrants that the software that allows Users to Access the Upcase Content (“Software”), if operated as directed, will substantially achieve the functionality described on the Site. THOUGHTBOT PROVIDES NO WARRANTY THAT YOUR HARDWARE, SOFTWARE, TELECOMMUNICATIONS EQUIPMENT AND/OR INTERNET SERVICE IS COMPATIBLE OR SUFFICIENT TO ACCESS THE SITE.
thoughtbot also warrants that the media containing the Software, if provided by thoughtbot, is free from defects in material on the date the User acquired the Software. THOUGHTBOT'S SOLE LIABILITY FOR ANY BREACH OF THIS WARRANTY SHALL BE, IN ITS SOLE AND ABSOLUTE DISCRETION: (A) TO REPLACE THE DEFECTIVE MEDIA OR SOFTWARE; (B) TO ADVISE THE USER HOW TO ACHIEVE SUBSTANTIALLY THE SAME FUNCTIONALITY WITH THE SOFTWARE AS DESCRIBED; OR (C) IF THE ABOVE REMEDIES ARE IMPRACTICABLE, TO REFUND THE SUBSCRIPTION FEE PAID FOR ACCESS TO THE UPCASE CONTENT. THE USER MUST INFORM THOUGHTBOT OF ANY PROBLEM WITH THE SOFTWARE WITHIN THIRTY (30) CALENDAR DAYS OF DISCOVERING THE PROBLEM OR THOUGHTBOT WILL NOT BE OBLIGATED TO HONOR THIS WARRANTY. THOUGHTBOT WILL USE COMMERCIALLY REASONABLE EFFORTS TO REPAIR, REPLACE, OR REFUND THE SOFTWARE PURSUANT TO THE FOREGOING WARRANTY WITHIN THIRTY (30) CALENDAR DAYS OF BEING SO NOTIFIED. IF ANY MODIFICATIONS ARE MADE TO THE SOFTWARE BY THE USER DURING THE WARRANTY PERIOD; IF THE MEDIUM OR SOFTWARE IS SUBJECTED TO ACCIDENT, ABUSE, OR IMPROPER USE; OR IF THE USER VIOLATES THE TERMS OF THIS AGREEMENT, THEN THIS WARRANTY SHALL IMMEDIATELY TERMINATE. THIS WARRANTY SHALL NOT APPLY IF THE SOFTWARE IS USED ON OR IN CONJUNCTION WITH HARDWARE OR SOFTWARE OTHER THAN THE UNMODIFIED VERSION OF HARDWARE AND SOFTWARE WITH WHICH THE SOFTWARE WAS DESIGNED TO BE USED AS DESCRIBED.
ALTHOUGH THOUGHTBOT HAS ATTEMPTED TO PROVIDE ACCURATE INFORMATION ON THE SITE, IT MAKES NO GUARANTEE OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE RELIABILITY, ACCURACY, TIMELINESS OR COMPLETENESS OF THAT INFORMATION AND ASSUMES NO RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS THEREIN.
USER ACCESSES THIS SITE AT HIS/HER/ITS OWN RISK. THE SITE IS PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND (BEYOND THE WARRANTIES SET FORTH IN SECTION 10), EXPRESSED, IMPLIED OR STATUTORY, AND ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS ARE SPECIFICALLY DISCLAIMED. THOUGHTBOT DOES NOT WARRANT ANY PARTICULAR RESULT FROM USE OF THE SOFTWARE OR SITE. THOUGHTBOT DOES NOT WARRANT THAT THE INFORMATION ON THE SITE IS ACCURATE, COMPLETE OR COMPLIES WITH ANY PARTICULAR LAW OR REGULATION, OR THAT THE OPERATION OF AND YOUR ACCESS TO THE SITE WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE OR COMPLETELY SECURE. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (TORT, CONTRACT OR OTHERWISE) SHALL THOUGHTBOT OR ANY OF ITS AFFILIATES, AGENTS, EMPLOYEES, SHAREHOLDERS, DIRECTORS, OFFICERS, THIRD PARTY CONTENT PROVIDERS, SUCCESSORS OR ASSIGNS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA, LOSS OF PRODUCTIVITY OR CONTRACT, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. YOUR USE OF THIS SITE IS AT YOUR SOLE RISK AND ANY CONTENT THAT YOU DOWNLOAD IS DOWNLOADED AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM IN EXCESS OF THE AMOUNT THOUGHTBOT RECEIVED FROM THE CUSTOMER FOR A SUBSCRIPTION TO ACCESS THE UPCASE CONTENT OR A ONE-TIME PURCHASE, AND FOR ANY LOSS OF DATA THAT RESULTS FROM THE DOWNLOADING OF ANY SUCH CONTENT, INCLUDING ANY DAMAGES RESULTING FROM COMPUTER VIRUSES. IN NO EVENT WILL THOUGHTBOT BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT THOUGHTBOT RECEIVED FROM THE CUSTOMER FOR A SUBSCRIPTION TO ACCESS THE UPCASE CONTENT OR A ONE-TIME PURCHASE, EVEN IF THOUGHTBOT SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN NO EVENT WILL WARRANTIES PROVIDED BY LAW, IF ANY, APPLY UNLESS THEY ARE REQUIRED TO APPLY BY STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. THIS DISCLAIMER IS APPLICABLE TO ANY DAMAGE OR INJURY RESULTING FROM THE NEGLIGENCE OR AN OMISSION OF THOUGHTBOT, COMPUTER VIRUS OR OTHER SIMILAR ITEM, TELECOMMUNICATIONS ERRORS, OR UNAUTHORIZED ACCESS TO OR USE OF USER INFORMATION THROUGH THEFT OR ANY OTHER MEANS. THOUGHTBOT IS NOT LIABLE FOR CRIMINAL, TORTIOUS, OR NEGLIGENT ACTIONS OR OMISSIONS OF THIRD PARTIES THAT AFFECT THIS SITE.
NO DEALER, AGENT, OR EMPLOYEE OF THOUGHTBOT IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSION, OR ADDITIONS TO THESE LIMITED WARRANTIES OR DISCLAIMERS.
THOUGHTBOT DISCLAIMS ALL WARRANTIES, AND SHALL HAVE NO LIABILITY FOR DAMAGES IN EXCESS OF THE AMOUNT THOUGHTBOT RECEIVED FROM THE CUSTOMER, ARISING FROM OR RELATED TO ANY SUPPORT SERVICES FOR YOUR USE OF THE SITE.
THE LAWS OF YOUR JURISDICTION MAY PROHIBIT OR MODIFY THE FOREGOING DISCLAIMERS AND LIMITATIONS ON DAMAGES, AND SUCH DISCLAIMERS OR LIMITATIONS ON DAMAGES MAY NOT APPLY TO YOU.
You acknowledge that thoughtbot does not pre-screen third party materials. thoughtbot is not the publisher or author of any information on the Site that is provided by third party content providers, and thoughtbot is not liable for any claims related to such information. Content provided by third parties is for informational purposes only, and thoughtbot’s use of the content constitutes neither an endorsement nor a recommendation by thoughtbot of the content. thoughtbot assumes no responsibility for third party products or services.
upcase.com may contain links and references to other third party websites and materials. thoughtbot does not assume any responsibility for these websites or materials and provides these links or materials solely for the convenience of Users. thoughtbot does not endorse or otherwise recommend any of these third party websites, references, or the products, services, or information there offered. thoughtbot may disable any hyperlink to the Site. thoughtbot has the right but not obligation to monitor third party websites and hyperlinks to the Site.
THOUGHTBOT MAKES NO WARRANTY, EITHER EXPRESSED OR IMPLIED, OF THE ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THE INFORMATION PROVIDED BY THIRD PARTIES. THIS INCLUDES, BUT IS NOT LIMITED TO, ANY INFORMATION FOUND ON A LINK LOCATED ON THIS SITE THAT ALLOWS USERS TO ACCESS INFORMATION FOUND ON ANOTHER SITE. ADDITIONALLY, THOUGHTBOT DOES NOT WARRANT THE EXISTENCE OR FUNCTIONALITY OF ANY WEBSITE WHICH CAN BE ACCESSED THROUGH A LINK LOCATED ON THIS SITE.
thoughtbot or its third party content providers shall retain all worldwide rights in the intellectual property in and on the Site, including, but not limited to, trademarks, service marks, trade dress, inventions, ideas, trade secrets, the source code, the HTML code, the "look and feel" of the Site, its color combinations, layout, and all other graphical elements, and the copyrights in and to its original content. You should assume that everything You read or see on the Site is copyrighted, trademarked, or otherwise protected and owned or licensed by thoughtbot. Except as expressly stated on the Site or in these Terms, nothing that You read or see on the Site or in the Upcase Content may be copied, reproduced, modified, distributed, transmitted, republished, displayed or performed for commercial use without the prior written consent of thoughtbot, except as provided in these Terms. Nothing in these Terms grants You an express or implied license to use any of thoughtbot’s intellectual property except as set forth in Section 4.
If You submit any unsolicited intellectual property, idea, copyrightable material, invention, discovery, improvement, trade secret or know-how to thoughtbot, You may forfeit Your intellectual property rights and moral rights contained in such communication or material.
User agrees to defend, indemnify and otherwise hold harmless thoughtbot and its officers, directors, agents, employees, shareholders, successors and assigns from and against any cause of action or claim, including court costs, expenses and attorney fees, related to or arising from User’s Prohibited Conduct or other improper or illegal use of the Site, or breach of these Terms.
Users are prohibited from violating or attempting to violate the security of the Site. thoughtbot has the right but not the obligation to investigate occurrences of possible violations and will cooperate with all applicable law enforcement authorities in prosecuting violators. thoughtbot may suspend Your Access while it conducts an investigation. Users are required to enter a user name and password to Access the Upcase Content. To protect against unauthorized Access to Your account, it is recommended that You close the browser when You have finished using the Site. You are responsible for maintaining the secrecy of Your user name and password.
You represent and warrant that You are the person on whose behalf You claim to accept these Terms, or, if You are entering into these Terms on behalf of a person or entity, You represent and warrant that You have the power and authority to enter into these Terms and bind the person or entity. You also represent and warrant that You are an adult who is legally able to enter into these Terms.
You may not use the account, user name or password of someone else at any time. You agree to notify thoughtbot immediately of any unauthorized use or loss of Your account, user name, password and/or credit card information. You also agree to notify thoughtbot immediately if You are aware of or suspect other unauthorized use of the Site and/or the Site content. thoughtbot will not be liable for any loss that You incur as a result of someone else using Your user name and password with or without Your knowledge. You may be held liable for any losses incurred by thoughtbot, its affiliates, officers, directors, employees, consultants, agents or representatives due to someone else’s use of Your account, user name or password.
thoughtbot will never ask You for Your password. If You need a new user name and/or password, thoughtbot will generate a new user name and password automatically through its computers and send it to Your e-mail or postal address.
In addition to thoughtbot’s other rights, it may terminate this Agreement at any time and at its sole and absolute discretion. thoughtbot may also terminate Access to the Upcase Content or cancel subscriptions to the Upcase Content without notice if it believes, in its sole judgment, that You have breached or may breach any term or condition of this Agreement, or engaged in conduct that thoughtbot deems inappropriate.
In the event of termination of this Agreement, the provisions in this Section and the provisions found in Sections 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17 shall survive in perpetuity. Each Subscriber’s obligation to pay outstanding subscription fees shall survive any termination of this Agreement.
These Terms constitute the entire agreement between thoughtbot and User regarding the subject matter hereof. Any previous agreement, whether oral or written, between thoughtbot and User dealing with the subject matter hereof is superseded. These Terms may only be modified or amended in writing. If any portion of these Terms is determined to be unenforceable for any reason, such portion will be deemed severed and the remaining terms and conditions shall continue in full force and effect. Upon User’s breach or threatened breach of these Terms, thoughtbot may pursue any legal or equitable remedy available, including but not limited to, direct, consequential and punitive damages and injunctive relief. thoughtbot’s remedies are cumulative and not exclusive. Failure of thoughtbot to exercise any remedy or enforce any portion of this Agreement at any time shall not operate as a waiver of any remedy or of the right to enforce any portion of the Agreement at any time thereafter. User agrees that regardless of any statute or law to the contrary, any claim or action arising out of or regarding this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. By Accessing the Site, User signs for and accepts this shortening of the statutes of limitations. thoughtbot makes no representation that the content of the Site is appropriate or available for use in all locations. thoughtbot operates this Site from the United States and makes no representation that the Site complies with any foreign or international laws. You agree to comply with all applicable local laws, including any international laws, in using this Site. You may not assign Your rights or delegate Your duties under these Terms. The parties agree that no third party is an intended beneficiary of these Terms. thoughtbot cannot provide notifications via post, only e-mail.
These Terms and any claim or action related to or arising from these Terms or content on the Site shall be governed by Massachusetts law, without regard to any provision that would make the laws of another jurisdiction applicable. All disputes between You and thoughtbot shall be finally resolved through binding arbitration in Boston, Massachusetts. The arbitration shall be conducted by one (1) arbitrator who is a retired judge. The parties shall conduct discovery as agreed upon or as permitted by the arbitrator. A party may file for an order on the arbitration decision exclusively in the Massachusetts Superior Court, County of Suffolk or the United States District Court for the Eastern District of Massachusetts. The parties shall share equally the costs of the arbitrator, arbitration body and arbitration facilities (if applicable). Each party may bring a claim or action for injunctive relief without submitting the claim to final and binding arbitration. Neither party shall have the obligation to post a bond or demonstrate actual harm before bringing a claim or action for injunctive relief. Each party consents to the exclusive jurisdiction and venue of the Massachusetts Superior Court, County of Suffolk or the United States District Court for the Eastern District of Massachusetts for any equitable claim or other action related to or arising from these Terms. Each party shall bear his/her/its own expenses and attorneys’ fees related to any arbitration, claim or action.
EFFECTIVE DATE: AUGUST 5, 2014