Updown Terms of Service
December 20, 2016
These Terms of Service (the 'Terms') are a binding legal agreement between you and Updown Technologies, Inc. ('Updown' or 'we'), regarding your use of services available at the website at Updowntech.com, mobile and tablet applications and all other related websites by Updown Technologies, Inc. (The website and services are collectively referred to as the 'Service').
These Terms May Change
We may periodically make changes to these Terms. By accessing or using the Service, you accept these Terms and any modifications that we may make to these Terms. It is your responsibility to review the most recent version of the Terms frequently and remain informed of any changes to it. If you continue to use the Service after we modify these Terms, you will be deemed to have consented to terms of the modified Agreement for your use of the Service as of the date of the modification. If you do not agree with any provision of these Terms, you must not use the Service.
Updown develops and provides software and applications designed to allow you to track activity and to inspire you to live an active lifestyle. Updown grants you a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the software and mobile applications provided by the Service. This license is provided solely for your personal use and enjoyment of the Updown Service as permitted in these Terms. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Updown Service or any portion thereof, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Updown or its licensors, except for the licenses and rights expressly granted in these Terms. UPDOWN DOES NOT PROVIDE MEDICAL EVALUATION, DIAGNOSIS, OR TREATMENT. The content provided on the Service is provided AS-IS, for informational and educational purposes only, and is not intended to be a substitute for professional medical advice, diagnosis or treatment. You should consult your physician or other qualified health provider if you have questions about a medical condition. If you think you have a medical emergency, call your doctor or 911 immediately. Reliance on any information provided on the Service is entirely at your own risk.
In order to use the service, you need to (1) be 18 or older, or be 13 or older and have your parent or guardian’s consent to the Agreements, (2) have the power to enter into a binding contract with us and not be barred from doing so under any applicable laws and (3) be resident in a country where the Service is available. Use of the Service is void where prohibited. You represent and warrant that any profile information you submit is true and accurate and that you are 13 years of age or older and are fully able and competent to enter into, and abide by these Terms. The Services are not intended for those under the age of 13.
You must register to use certain features of the Services. When you register, you agree to (a) provide accurate, current and complete information about you as may be prompted by registration forms on the Service ('Registration Data'); (b) maintain the security of any logins, passwords, or other credentials that you select or that are provided to you for use on the Service; and (c) maintain and promptly update the Registration Data, and any other information you provide to us, and to keep all such information accurate, current, and complete. You will notify us immediately of any unauthorized use of your account or any other breach of security by emailing us at email@example.com.
Premium Updown Service
All parts of the Service which can be accessed without payment are referred to as the ‘Free Service’. Additional terms and conditions apply to the Premium Updown membership, referred to as the ‘Premium Service’. The Premium Service requires payment to access. The Premium Service may not be available to all users. We will explain which services are available to you when you are signing up for the services. Note that the Premium Service may be discontinued in the future, in which case you will no longer be charged for the Premium Service.
5.1 Codes and other pre-paid offers
If you have purchased or received a code, gift card, pre-paid offer or other offer provided or sold by or on behalf of Updown for access to the Premium Service (“Code”), separate terms and conditions presented to you along with the Code may also apply to your access to the Service and you agree to comply with any such terms and conditions.
5.2 Discount Codes
If you have received a discount code provided on behalf of Updown by a gym, company, or other organization for a reduced payment for access to the Premium Service (“Discount Code), separate terms and conditions presented to you upon entering the Discount Code may also apply to your access to the Service and you agree to comply with any such terms and conditions.
You will not: (a) use the Service for any commercial purpose; (b) access, monitor, or copy any content or information on the Service using any robot, spider, scraper, or other automated means or any manual process for any purpose without our express written permission; (c) violate the restrictions in any robot exclusion headers on the Service or bypass or circumvent other measures employed to prevent or limit access to the Service; (d) take any action that imposes, or may impose, in our discretion, an unreasonable or disproportionately large load on our infrastructure; (e) "frame," "mirror," or otherwise incorporate any part of the Service into any other website without our prior written authorization; or (f) intentionally or unintentionally violate any applicable local, state, national, or international law or regulation; or (g) access the Service to engage in any form of fraud or misrepresentation. You understand and agree that Updown may, in its sole discretion, terminate your access to the Service at any time and without notice as may be necessary to enforce the foregoing use restrictions.
The Service may include interactive features and services, including social networking functionality, forums, message boards, ratings or review functionality, and similar services, in which you or third parties may send messages to Service users, and create, post, or store profile data, photographs, ratings or reviews, and other content on the Service ('Interactive Services'). You are solely responsible for your use of Interactive Services and use them at your own risk. By using any Interactive Services, you agree not to post, transmit, distribute, upload, or otherwise disseminate through the Service any of the following:
- Material that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent;
- Material that violates, or that causes us or our affiliates, subsidiaries, or partners to violate, any applicable law, regulation, or order of any governmental authority in any jurisdiction;
- Material that infringes or violates, or that may infringe or violate, any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party, or that you otherwise do not have the right to make available;
- Private or confidential information of any person or entity, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers, credit card numbers, and any trade secrets or information for which you have any obligation of confidentiality or material that impersonates any person or entity, or misrepresents your affiliation with the Service or with any other person or entity;
- Material that is or contains any advertising or solicitation, including, without limitation, links to commercial products or services or any political campaigning (except in portions of the Service that are expressly designated as portions in which such material is allowed);
- Comments that in any way refer to persons under 13 years of age;
- Viruses, corrupted data, or other harmful, disruptive, or destructive files; or
- Material that, in our sole judgment, is objectionable restricts or inhibits any person or entity from using or enjoying any Interactive Services or other portions of the Service, or which may expose us or our users to harm or liability of any nature.
We take no responsibility and assume no liability for any material posted, stored, or uploaded by you or any third party, or for any loss or damage to any of that material. Although we have no obligation to screen, edit, or monitor any material posted on or transmitted through the Service, we reserve the right, and have absolute discretion, to remove, screen, and edit any material posted, stored, or transmitted on or through the Service at any time and for any reason without notice. If you post material on or through the Service, then, unless we indicate otherwise, you (a) grant us and our subsidiaries and affiliates a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display such material throughout the world in any media; (b) grant us and our affiliates, subsidiaries, and sublicensees the right to use the name that you submit in connection with such material, if we choose; and (c) represent and warrant that you own and control all of the rights to the material that you post, or you otherwise have the right to post such material to the Service; and the use and posting of material you supply does not violate these Terms, will not violate any rights of or cause injury to any person or entity, and will not otherwise create any harm or liability of any type for us or for third parties.
Alerts and Notifications
As part of your use of the Updown Service, you may receive notifications, text messages, alerts, or emails. You agree to the receipt of these communications. You can control receipt of non-service related communications from your account settings. You are responsible for any messaging or data fees you may be charged by your wireless carrier.
Service Limitations and Modifications
Updown will make reasonable efforts to keep the Updown Service operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. To the extent permissible under applicable law, Updown reserves the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Updown Service, with or without notice, all without liability to you, except where prohibited by law, for any interruption, modification, or discontinuation of the Updown Service or any function or feature thereof. Notwithstanding the foregoing, if you have prepaid fees for the Premium Service that Updown permanently discontinues prior to the end of the Pre-Paid Period (defined in the Payments, cancellations, and cooling off section) Updown will refund you the prepaid fees for the Pre-Paid Period after such discontinuation. You understand, agree, and accept that Updown has no obligation to maintain, support, upgrade, or update the Service, or to provide all or any specific content through the Service. This section will be enforced to the extent permissible by applicable law.
Payments, cancellations, and cooling off
The Premium Service can be purchased either by (1) paying a monthly subscription fee; or (2) pre-payment giving you access to the Premium Service for a specific time period (‘Pre-Paid Period’). If you have purchased the Premium Service using a Code, your Premium Service will automatically terminate at the end of the Pre-Paid Period, or when there is an insufficient pre-paid balance to pay for the Premium Service.
When you register for the Premium Service, Trial, or Code online, you consent to get access to the Premium Service immediately. If you reside outside the United States and register for the Premium Service or Code online, you may change your mind for any or no reason and receive a full refund of all monies paid within fourteen (14) days (the ‘Cooling-off Period’). Refunds will not, however, be provided if you have accessed Updown at any time during the Cooling-off Period.
Unless your Premium Service has been purchased as a Pre-Paid Period, your payment to Updown (or to a third party through whom you purchased the Premium Service) will automatically renew at the end of the subscription period, unless you cancel your Premium Service through your Updown account subscription page before the end of the current subscription period. The cancellation will take effect the day after the last day of the current subscription period, and you will be downgraded to the Free Service. However, if you cancel your payment or Premium Service and/or terminate any of the Agreements (1) after you have accessed Updown during the Cooling-off Period, or (2) after the Cooling-off Period is over (where applicable), or (3) before the end of the current subscription period, we will not refund any subscription fees already paid to us.
If you wish to receive a full refund of all monies paid before the Cooling-off Period is over, you must contact support at firstname.lastname@example.org.
Updown may change the price for the Premium Service, Pre-Paid Period (for periods not yet paid for), or Codes from time to time, and will communicate any price changes to you in advance and, if applicable, how to accept those changes. Price changes for the Premium Service will take effect at the start of the next subscription period following the date of the price change. As permitted by local law, you accept the new price by continuing to use the Updown Premium Service after the price change takes effect. If you do not agree with the price changes, you have the right to reject the change by unsubscribing from the Updown Premium Service prior to the price change going into effect. Please therefore make sure you read any such notification of price changes carefully.
Term and Termination of the Service
Your account remains in effect unless you cancel it or unless Updown terminates your account as provided by these Terms. To terminate your account, please email Updown at email@example.com. Notwithstanding any provision of these Terms, we reserve the right, without notice and in our sole discretion, to terminate your account and to block, restrict, and prevent your future access to, and use of, the Service.
Any materials, including but not limited to comments, suggestions, ideas, or other information, provided by you in the form of email or other submissions to us (excluding material that you post on the Service in accordance with these Terms) (collectively 'Feedback'), are non-confidential and you hereby grant to us and our subsidiaries and affiliates a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use your Feedback for any purpose without compensation or attribution to you.
We respect the intellectual property rights of others, and ask you to do the same. It is our policy to terminate the access privileges of those who repeatedly infringe the copyright rights of others. If you believe that your work has been posted on the Service in a way that constitutes copyright infringement, please contact us at the address below and provide the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed, and identification of the time(s) and date(s) the material that you claim is infringing was displayed on the Service; (3) your address, telephone number, and email address; (4) a 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 (5) 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. If you believe that your user content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content in your user content, you may send a counter-notice containing the following information to the copyright agent: (1) Your physical or electronic signature; (2) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; (3) a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and (4) your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court in Madison, Wisconsin and a statement that you will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by the copyright agent, we may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion. Our designated agent for notice of copyright infringement can be reached at:
Updown Technologies, Inc.
344 State St., Unit 1
Madison, WI 53703
Updown, the Updown logo, and any other product or service name or slogan contained on the Service are trademarks or registered trademarks of Updown and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of the applicable trademark holder. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Service are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise, does not constitute or imply endorsement, sponsorship, or recommendation thereof by us, or vice versa.
We, our affiliates, and our suppliers and licensors own all right, title, and interest, including all intellectual property rights, in and to the Service. Except for those rights expressly granted in these Terms, no other rights are granted, either express or implied, to you.
The Service may contain links to Web pages and content of third parties ("Third-Party Content") as a service to those interested in this information. We do not monitor, endorse, or adopt, or have any control over, any Third-Party Content. We undertake no responsibility to update or review any Third Party Content and can make no guarantee as to its accuracy or completeness. Additionally, if you follow a link or otherwise navigate away from the Service, please be aware that these Terms will no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third-Party Content provider to which you navigate from the Service. You access and use Third-Party Content at your own risk. The Service may contain advertisements and promotions from third parties. Your business dealings or correspondence with, or participation in promotions of, advertisers other than us, and any terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party.
You will defend, indemnify and hold harmless Updown, its subsidiaries, affiliates, partners and third-party advertisers and their respective directors, officers, agents, employees, licensors, and suppliers from and against any costs, damages, expenses, and liabilities (including, but not limited to, reasonable attorneys' fees) arising out of or related to your use of the Service, your violation of these Terms, or your violation of any rights of a third party.
Disclaimer of Warranties
YOUR USE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, YOUR USE OF ANY CONTENT ACCESSIBLE THROUGH THE SERVICE AND YOUR INTERACTIONS AND DEALINGS WITH ANY SERVICE USERS, IS AT YOUR SOLE RISK. THE SERVICE, AND ALL CONTENT AVAILABLE ON AND THROUGH THE SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. UPDOWN AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. UPDOWN DOES NOT WARRANT UNINTERRUPTED USE OR OPERATION OF THE SERVICE OR YOUR ACCESS TO ANY CONTENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE WILL CREATE ANY WARRANTY REGARDING UPDOWN THAT IS NOT EXPRESSLY STATED IN THESE TERMS. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. WITHOUT LIMITING THIS SECTION, UPDOWN MAKES NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, COMPLETENESS, TIMELINESS, OR USEFULNESS OF ANY INFORMATION CONTAINED OR REFERENCED IN THE SERVICE. HEALTH-RELATED INFORMATION CHANGES FREQUENTLY AND THEREFORE INFORMATION CONTAINED ON THE SERVICE MAY BE OUTDATED, INCOMPLETE OR INCORRECT. UPDOWN DOES NOT ASSUME ANY RISK WHATSOEVER FOR YOUR USE OF THE SERVICE OR THE INFORMATION CONTAINED ON THE SERVICE.
Limitation of Liability
NEITHER UPDOWN, ITS SUPPLIERS OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE, WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF UPDOWN OR ANY SUPPLIER OR LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY CONTENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE MAXIMUM TOTAL LIABILITY OF UPDOWN AND ITS SUPPLIERS AND LICENSORS TO YOU FOR ALL CLAIMS UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS $100. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
General Legal Notices
Our failure to act in a particular circumstance does not waive our ability to act with respect to that circumstance or similar circumstances. Any provision of these Terms that is found to be invalid, unlawful, or unenforceable will be severed from these Terms, and the remaining provisions of these Terms will continue to be in full force and effect. The section headings and titles in these Terms are for convenience only and have no legal or contractual effect. Any provision in these Terms that by its nature should survive the termination of your license to access the Service or any termination of these Terms (including, without limitation, provisions governing indemnification, limitations on liability, disclaimers of warranty, and ownership of intellectual property) will continue to remain in full force and effect after any such termination. These Terms are governed by the laws of the State of Wisconsin, excluding conflict of laws principles. Any controversy or claim arising out of or relating to the Service or these Terms must be commenced within one year after the claim arose and will be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim will be arbitrated on an individual basis, and will not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration will be conducted in Dane County, Wisconsin and judgment on the arbitration award may be entered into any court of competent jurisdiction. The award of the arbitrator will be final and binding upon the parties without appeal or review except as permitted by Wisconsin law. Either party may seek any interim or preliminary injunctive relief from any court of competent jurisdiction, as necessary to protect the party's rights or property pending the completion of arbitration. These Terms and any additional terms and conditions accepted by you when registering for a specific Service constitute the entire agreement between you and Updown concerning the Service. These Terms supersede all prior agreements or communications between you and Updown regarding the subject matter of these Terms.
Questions & Contact Information
If you have any questions or concerns about the Service, or these Terms, you may contact Updown via email at firstname.lastname@example.org or write us at:
Updown Technologies, Inc.
344 State St., Unit 1
Madison, WI 53703