Ownership of the Site and Protection of Our Intellectual Property Rights
The content of the Site is intended for the personal, noncommercial use of our users. The Site is a website of UPSTART MEDIA, Inc. (“UPSTART MEDIA”). All right, title and interest to the content displayed on the Site, including but not limited to the Site’s look and feel, data, information, text, graphics, images, sound or video materials, photographs, designs, trademarks, service marks, trade names, URLs and content provided by third parties, are the property of UPSTART MEDIA, or the respective third parties, and are protected by copyright, trademark, patent or other proprietary rights and laws.
Except as expressly authorized by UPSTART MEDIA, you agree not to copy, modify, rent, lease, loan, sell, assign, distribute, perform, display, license, reverse engineer or create derivative works based on the Site or any content (including without limitation any software) available through the Site.
Changes to This Agreement
Your use of the Site is also subject to the other policies, disclaimers and guidelines we post on the Site from time to time.
Your License to Access Content on the Site
You are hereby granted a personal, nonexclusive, nontransferable, revocable, limited license to view, reproduce, print, cache and store, for personal use only, content retrieved from the Site via a generally available consumer web browser, provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Upstart Services or remove or obscure the copyright notice or other notices displayed on the content. You may not reproduce, print, cache, store or distribute content retrieved from the Site in any way, for any commercial use without the prior written permission of UPSTART MEDIA or the copyright holder identified in the relevant copyright notice.
You agree not to modify the Upstart Services in any manner or form, or to use modified versions of the Upstart Services, including (without limitation) for the purpose of obtaining unauthorized access to the Upstart Services or portions of the Upstart Services. You agree not to access the Upstart Services by any means other than through the interface that is provided by UPSTART MEDIA for use in accessing the Upstart Services.
Except as expressly provided in this Agreement, nothing contained in this Agreement or on the Site shall be construed as conferring any other license or right, expressly, by implication, by estoppel or otherwise, with respect to any of UPSTART MEDIA’s content or under any third party’s content. Any rights not expressly granted herein are reserved.
If you choose to forward content from the Site via email through our Services, you agree that you will only forward such content to willing recipients known to you and that you will not use the Upstart Services for engaging in spam or other unauthorized conduct.
Except as otherwise provided herein, any and all comments, suggestions, ideas, graphics, videos, content, data and other information that you transmit to UPSTART MEDIA through the Upstart Services (each, a “Submission”) shall remain your sole and exclusive property, and you shall be solely responsible for your Submission and the consequences of posting or publishing it. By submitting your Submission, you hereby grant UPSTART MEDIA and its successors and assigns a worldwide, perpetual, non-exclusive, irrevocable, royalty-free, sublicenseable (through multiple tiers) and transferable license (with a right to create derivative works) to use, copy, transmit or otherwise distribute, perform, publicly perform and display your Submission for any legal purposes whatsoever now known or hereinafter becomes known. You also grant each user of the Upstart Services and the Site a non-exclusive license to access your Submission through the Site and to use, copy, transmit or otherwise distribute, perform, publicly perform, create derivative works of, and display your Submission to the extent expressly authorized by UPSTART MEDIA’s on the Site and/or in this Agreement.
By making a Submission, you waive the right to make any claim against UPSTART MEDIA or any of its respective parents, subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers or shareholders related to the Submission, including, but not limited to, unfair competition, invasion of privacy, negligence, breach of implied contract or breach of confidentiality, and you further waive all moral rights you may have in any materials uploaded or sent to us by you. You represent and warrant that your Submission: (a) shall be true, accurate, current, complete and not misleading, (b) shall not violate the rights of any third party, including, but not limited to, intellectual property and proprietary rights, (c) shall not be fraudulent or involve counterfeit or stolen information or items, (d) shall not violate any law, statute, ordinance or regulation, and (e) shall not create any liability for UPSTART MEDIA or any of its respective parents, subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers and shareholders. You also agree to maintain and promptly update your Submission by means of the Upstart Services in order to keep that information true, accurate, current and complete.
You further represent and warrant that (i) you own or have the necessary licenses, rights, consents and permissions to use and authorize UPSTART MEDIA to use all patent, trademark, trade secret, copyright or other proprietary rights in and to your Submission to enable inclusion and use of the Submission in the manner contemplated by this Agreement; and (ii) you have any necessary written or implied consent, release, and/or permission of each and every identifiable individual person in the Submission to use the name, picture and likeness of each and every such identifiable individual person to enable inclusion and use of the Submission in the manner contemplated by this Agreement.
UPSTART MEDIA does not and cannot review all submissions posted to or created by users accessing the Upstart Services, and is not in any manner responsible for the content of these communications or the activities of these users. You acknowledge that by providing you with the ability to view and distribute user-generated content through the Upstart Services, UPSTART MEDIA is merely acting as a passive conduit for the distribution of such information and is not undertaking any obligation or liability relating to the content or the users’ activities. UPSTART MEDIA and its respective parents, subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers and shareholders do not undertake or assume any duty to monitor the Site for inappropriate content. UPSTART MEDIA and its respective parents, subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers and shareholders assume no responsibility or liability which may arise from the content thereof, including, but not limited to, claims for defamation, libel, slander, infringement, invasion of privacy and publicity rights, obscenity, pornography, profanity, fraud, or misrepresentation. Notwithstanding the foregoing, UPSTART MEDIA reserves the right to block or remove communications, postings or materials that it determines to be (a) abusive, defamatory, or obscene, (b) fraudulent, deceptive, or misleading; (c) in violation of a copyright, trademark, patent, trade secret, intellectual property or other rights of another or (d) offensive or otherwise unacceptable to UPSTART MEDIA in its sole discretion.
You agree not to use the Site to:
- Post any Submission that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable;
- Harm or threaten to harm users in any way;
- “Stalk” or otherwise harass any other person or entity;
- Impersonate any person or entity (including a UPSTART MEDIA agent, enthusiast, or moderator), or falsely state or otherwise misrepresent your affiliation with a person or entity;
- Post any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation except in areas that are expressly designated by UPSTART MEDIA for such purpose;
- Disseminate or transmit any content that infringes or violates any party’s copyright, trademark, trade secret, patent or other proprietary right, including, but not limited to, using third party copyrighted materials, without appropriate permission, using third party trademarks without appropriate permission or attribution, or using or distributing third party information (whether or not protected as a trade secret) in violation of a duty of confidentiality;
- Disseminate or transmit any worms, viruses or other harmful, disruptive or destructive files, code or programs;
- Violate any law (whether local, state, national, or international), whether or not intentionally;
- Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Submission;
- Post any content that you do not have a right to under any law or under contractual or fiduciary relationship (which includes inside information, proprietary or confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- Interfere with or disrupt the Upstart Services, the Site, or servers or networks connected to the Site, or disobey any requirements, procedures, policies, or regulations of networks connected to the Site;
- Collect or store personal data about other users;
- Engage in any activities that would violate the personal privacy rights of others, including but not limited to, collecting and distributing information about Internet users without their permission, except as permitted by applicable law; or
- Post any material that contains 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.
Site with Registration
The Site may enable users to register to obtain certain of the Upstart Services. Registration is initially available to anyone of requisite age and citizenship and is limited to one registration per user. By registering for these services, you agree to: (a) provide true, accurate, current and complete information about yourself as requested by the UPSTART MEDIA registration form (the “Registration Information”) and (b) maintain and update the Registration Information to keep it true, accurate, current and complete. In addition to other grounds for suspension or termination of your use of the Upstart Services, if you provide any information that is untrue, inaccurate, not current or incomplete, or UPSTART MEDIA has reasonable grounds to suspect that information you have provided is untrue, inaccurate, not current or incomplete, UPSTART MEDIA has the right to suspend or terminate your access and refuse you any and all use of the Site.
Passwords and Security
Access to certain of the Upstart Services may require you to choose a user name (or nickname) and password. If you do so, you are responsible for maintaining the confidentiality of your password and account and for logging out of your account at the end of each session. In selecting a user name, you agree that you will not (i) select or use a screen name of another person with the intent to impersonate that person; (ii) use a name subject to the rights of any person without their authorization; or (iii) use a screen name that is offensive to people of ordinary sensitivities, illegal, or infringing. You are fully responsible for all activities that occur under your password or account. You agree (a) to notify UPSTART MEDIA immediately of any unauthorized use of your password or account or any other breach of security, and (b) to ensure that you exit from your account at the end of each session. UPSTART MEDIA cannot and will not be liable for any loss or damage arising from your failure to comply with this section.
Links to Other Web Sites
A central part of the Upstart Services includes links to other World Wide Web sites or resources. Because UPSTART MEDIA has no control over such sites and resources, you acknowledge and agree that UPSTART MEDIA is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that UPSTART MEDIA shall not be responsible or liable, directly or indirectly, for any damage or loss caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource. Finally, you acknowledge that such external sites usually have their own terms and conditions, including privacy policies, over which UPSTART MEDIA has no control and which will govern your rights and obligations with respect to the use of those Web sites.
Your Contact with Advertisers Or Third Party Vendors
Except as otherwise expressly agreed by UPSTART MEDIA, your dealings with advertisers and third party vendors found on or through the Upstart Services, including your participation in promotions, the purchase of goods, and any terms, conditions, warranties or representations associated with such activities, are solely between the third party and you. UPSTART MEDIA does not make any representations or warranties of any kind with respect to any content, goods, services, information, other materials or web sites that may be obtained from such third parties, and you agree that UPSTART MEDIA will have no liability for any loss or damage of any kind incurred as a result of any activities you undertake in connection with the use of or reliance on such content, goods, services, information, other materials or web sites available, or through such third parties, on the Site. You acknowledge that such external sites usually have their own terms and conditions, including privacy policies, over which UPSTART MEDIA has no control and which will govern your rights and obligations with respect to the use of those Web sites.
Compliance with Laws
You agree to comply with all applicable laws regarding your use of the Site, including, without limitation, all applicable laws (as well as associated licenses and approvals) regarding the transmission of technical data exported from the United States or the country in which you reside.
Modifications to the Upstart Services
UPSTART MEDIA reserves the right at any time and from time to time to modify, suspend, discontinue or terminate the Upstart Services (or any part thereof) with or without notice for any reason. You agree that UPSTART MEDIA will not be liable to you or to any third party for any modification, suspension, discontinuation or termination of the Upstart Services.
Termination of Your Access to the Upstart Services
You agree that UPSTART MEDIA, in its sole discretion, may terminate your access to any of the Upstart Services, and/or remove, discard or modify any Submission or content within the Upstart Services, for any reason, including, without limitation, for lack of use or if UPSTART MEDIA believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. You agree that any termination of your access to the Upstart Services may be effected without prior notice, and acknowledge and agree that UPSTART MEDIA may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Upstart Services. If you use the Site in violation of this Agreement, UPSTART MEDIA may, in its sole discretion, retain all data collected from your use of the Site. Further, you agree that UPSTART MEDIA shall not be liable to you or any third party for the discontinuation or termination of your access to the Upstart Services, or collection of information notwithstanding in the case of your violation of this Agreement, even if advised of a claim for damages.
Information Disclaimer and Disclaimer of Warranties
BY USING THE UPSTART SERVICES YOU UNDERSTAND AND AGREE THAT:
- NO CONTENT ON OUR SITES IS INTENDED TO CONSTITUTE PROFESSIONAL ADVICE, WHETHER MEDICAL, FINANCIAL, LEGAL OR OTHERWISE. UPSTART MEDIA AND THOSE POSTING OR OTHERWISE PROVIDING INFORMATION, SERVICES OR MATERIAL ON OUR SITES ARE NOT RESPONSIBLE OR LIABLE FOR ANY CONSEQUENCES RELATING DIRECTLY OR INDIRECTLY TO ANY ACTION OR INACTION YOU TAKE BASED ON THE INFORMATION, SERVICES OR OTHER MATERIAL ON OUR SITES.
- YOUR USE OF THE UPSTART SERVICES IS AT YOUR SOLE RISK. THE UPSTART SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. UPSTART MEDIA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT.
- UPSTART MEDIA MAKES NO REPRESENTATION OR WARRANTY THAT THE UPSTART SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE UPSTART SERVICES WILL BE UNINTERRUPTED, SECURE, CURRENT OR ERROR-FREE, THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE UPSTART SERVICES WILL BE ACCURATE, TIMELY, USEFUL OR RELIABLE, OR THAT THE QUALITY OF ANY POSTINGS, PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE UPSTART SERVICES WILL MEET YOUR NEEDS.
- ANY MATERIAL OBTAINED THROUGH THE USE OF THE UPSTART SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO COMPUTER SYSTEMS OR FOR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OUR SITE OR THROUGH OR FROM THE UPSTART SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THEIR TERMS.
- YOUR USE OF THE UPSTART SERVICES ARE ALSO SUBJECT TO THE FINANCIAL DISCLAIMERS.
Limitation of Liability
YOU UNDERSTAND AND AGREE THAT UPSTART MEDIA IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWSOEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE RESULTING FROM: (1) THE USE OF, OR THE INABILITY TO USE, THE UPSTART SERVICES, (2) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, GOODS OR AND WEB SITES, (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, (4) THE STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OUR SITES, (5) RELIANCE ON CONTENT OR POSTINGS ON OUR SITES, OR (6) ANY OTHER MATTER RELATING TO OUR SITES OR THE UPSTART SERVICES. THESE LIMITATIONS WILL APPLY WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. EXCEPT AS REQUIRED BY THE INDEMNITY PROVISIONS HEREIN, IN NO EVENT WILL UPSTART MEDIA’S DIRECT LIABILITY HEREUNDER EXCEED $100.00.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Indemnification of UPSTART MEDIA
You agree to defend, indemnify and hold UPSTART MEDIA, its subsidiaries and affiliates, and its and their officers, directors, employees and agents harmless from and against any and all liability, losses, claims, demands, disputes, damages or costs of any kind, including, without limitation, reasonable attorneys’ fees and costs of litigation, resulting from or in any way connected with (a) Submission or other content you submit or that is submitted from your account, (b) your use of or reliance on The Upstart Services, (c) your connection to the Site, (d) your violation of this Agreement, or (e) your violation of any rights of another party.
Copyright and Trademark Notices
You acknowledge and agree to the copyright and trademark notices.
No Other Agreements Between Us
Law Applicable to Interpretations and Disputes
This Agreement and the legal relations thus created between UPSTART MEDIA and you (including, without limitation, any dispute between UPSTART MEDIA and you arising out of or related to this Agreement) shall be governed by and construed under and in accordance with the internal laws of the State of New York without reference to its principles of conflicts of laws. Any such dispute will be heard and determined at UPSTART MEDIA’s discretion in the appropriate federal court located in the State of New York in the County of New York or the appropriate New York state court located in the County of New York, and you submit yourself and your property to the non-exclusive jurisdiction of the foregoing courts with respect to such disputes. You acknowledge that IAC/InterActiveCorp, UPSTART MEDIA’s parent company, is headquartered in New York City and for that and other reasons this Agreement and the undertakings of the parties hereunder bear a reasonable relation to the State of New York. You (i) waive to the fullest extent permitted by law any objection which you may now or hereafter have to the courts referred to above on the grounds of inconvenient forum or otherwise as regards any dispute between UPSTART MEDIA and you arising out of or related to this Agreement, (ii) waive to the fullest extent permitted by law any objection which you may now or hereafter have to the laying of venue in the courts referred to above as regards any dispute between UPSTART MEDIA and you arising out of or related to this Agreement and (iii) agree that a judgment or order of any court referred to above in connection with any dispute between UPSTART MEDIA and you arising out of or related to this Agreement is conclusive and binding on you and may be enforced against you in the courts of any other jurisdiction
Severability of This Agreement
If any provision of this Agreement is found by a court or other binding authority to be invalid, you agree that every attempt shall be made to give effect to the parties’ intentions as reflected in that provision, and the remaining provisions contained in this Agreement shall continue in full force and effect.
Limitation of Actions Brought Against UPSTART MEDIA
You agree that any claim or cause of action arising out of your use of the Site or this Agreement must be filed within one year after such claim or cause of action arose or it shall forever be barred, notwithstanding any statute of limitations or other law to the contrary. Within this period, any failure by UPSTART MEDIA to enforce or exercise any provision of this Agreement or related right shall not constitute a waiver of that right or provision.
Effective date: January 15, 2010.