UpState Terms of Service
This document contains very important information regarding your rights and obligations, as well as conditions, limitations, and exclusions that might apply to you. Please read it carefully.
1. Agreement. These terms (the "Terms") apply to the purchase, sale, and access to services as defined below through Code the Dream dba UpState North Carolina and its website, www.keepupstate.com and all its sub-domains, pages, or other directly descended website addresses and internet locales (the "Website"). By creating an account, you accept and are bound by these Terms, whether or not you physically sign or otherwise indicate affirmation of these Terms. You may not order or obtain services via this website if you: (a) do not agree to these Terms; (b) are not 18 years of age or older; or (c) are prohibited from accessing or using this website or any of this website's contents, goods, or services by applicable law.
2. Definitions. The word “Customer” wherever used herein, shall mean you. The party from whom Customer purchases and/or accesses the services defined below is referred to as “Company.”
3. Services Provided. Company shall provide state legislative tracking and screening for the North Carolina General Assembly (the “Services”). Company shall use all commercially reasonable efforts to provide Services to Customer. All services shall be provided on a subscription basis (the “Subscription Term”).
(a) For a Customer that selects to receive services on an unpaid trial or free basis, Customer understands and acknowledges that Customer will not receive the full Services available to Customers who selects to receive services on a Paid Subscription basis. Should Customer wish to receive the full Services, Customer will need to purchase an appropriate Paid Subscription for such Services.
4. SAAS Services. During the Subscription Term, Customer shall receive a nonexclusive, non-assignable, royalty-free, worldwide right to access and use the software solely for personal use subject to these Terms. Customer acknowledges that this is a service agreement and Company will not be delivering copies of the Software to Customer as part of the Services.
5. Customer Restrictions. Customer shall not, and shall not allow anyone else, to: (i) copy or republish the Services or Software, (ii) make the Services available to any person other than the Customer themselves (iii) use or access the Services to provide service bureau, time-sharing or other computer hosting services to third parties, (iv) modify or create derivative works based upon the Services or the Software, (v) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the Software used to provide the Services, (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the Services, except and only to the extent such activity is expressly permitted by applicable law, or (vii) access the Services or use the Software in order to build a similar product or competitive product. Subject to the limited licenses granted herein, Company shall own all right, title and interest in and to the Software, Services, and other deliverables provided under these Terms, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein. Customer agrees to assign all right, title and interest it may have in the foregoing to Company.
6. Customer Responsibilities, Confidentiality, and Proprietary Rights.
(a) Assistance. Customer shall provide commercially reasonable information and assistance to Company to enable Company to deliver the Services. Customer acknowledges that Company’s ability to deliver the Services in the manner provided in these Terms may depend upon the accuracy and timeliness of such information and assistance.
(b) Ownership. Customer retains ownership and intellectual property rights in and to Customer’s personal information. Company or its licensors retain all ownership and intellectual property rights to the Services, Software, and anything developed and delivered under these Terms. Third-party technology may be appropriate or necessary for use in relation to the Services or Software. Customer’s right to use such third-party technology is governed by the terms of the third-party technology license agreement specified by Company and not under these Terms.
(c) Legal Compliance. Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
(d) Unauthorized Use; False Information. Customer shall: (a) notify Company immediately of any unauthorized use of any password or user information or any other known or suspected breach of security, (b) promptly report to Company and employ reasonable efforts to stop any unauthorized use of the Services that is known or suspected by Customer, and (c) not provide false identity information to gain access to or use the Services.
(e) Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of the Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
(f) Data Collection. Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
7. Account Registration and Use. Customer must register for an account in order to purchase, access, and receive the Services. Account information must be accurate, current, and complete. Customer agrees to keep account information up-to-date so that Company may send invoices, statements, and other information by email or through Customer’s account. Customer must ensure that any account login information, passwords, and other access credentials for the Services are kept strictly confidential and not shared with any unauthorized person. Customer shall be responsible for any and all actions taken using its and its users’ accounts, passwords or access credentials.
8. Paid Subscriptions; Prices and Payment Terms.
(a) Paid Subscriptions. For a Customer that selects to receive services on a paid basis, Customer shall pay to Company the subscription fee (the “Subscription Fee”) in the amount and for the Subscription Term that Customer has selected and agreed to pursuant to these Terms. For monthly subscriptions, the Subscription Fee shall automatically renew under the same conditions unless either Customer or Company cancels their subscription.
(i) All prices posted on Seller’s website are subject to change without notice. The price charged for Services will be the price in effect at the time the order is placed and will be set out in Customer’s order confirmation email. Price increases will only apply to orders placed after such changes.
(ii) Terms of payment are within Company’s sole discretion and payment must be received by Company in order to trigger any of Company’s obligations to Customer under these Terms.
(iii) In the event that automatic billing shall fail to occur for any reason, Company shall issue an electronic invoice to Customer.
(iv)Full payment for any issued invoices must be received by Company within thirty (30) days from the date indicated on the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services.
(v) Customer warrants and represents that: (i) the credit card information Customer supplies to Company is true, correct, and complete; (ii) Customer is duly authorized to use such credit card for the purchase; (iii) charges incurred by Customer will be honored by Customer’s credit card company; (iv) Customer will pay charges incurred, including all applicable taxes (if any); and (e) Customer will not seek to have the credit card company or other financing entity “reverse” the charges associated with Customer’s order without first providing Notice to Company.
(vi) The Company reserves the right to change the Subscription Fee or applicable charges and to institute new charges and Subscription Fee at the end of the Initial Service Term (or the current renewal term for monthly subscriptions), upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that UpState has billed Customer incorrectly, Customer must contact UpState no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to UpState’s customer support department.
9. Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, such party is prevented from performing any obligation or Services, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.
10. Warranties and Representations by Company. In addition to any other warranties provided by law or otherwise, Company represents and warrants that it will provide the Services in a professional manner consistent with general industry standards.
COMPANY WARRANTS THAT THE SERVICES WILL PERFORM IN ALL MATERIAL RESPECTS IN ACCORDANCE WITH THESE TERMS. COMPANY DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT COMPANY WILL CORRECT ALL ERRORS. CUSTOMER ACKNOWLEDGES THAT COMPANY DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY COMPANY (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS. NEITHER COMPANY NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THE OPERATION OF THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, NOR SHALL COMPANY ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S DATA, FILES, OR PROGRAMS.
11. Limitation of Liability. NEITHER PARTY (NOR ANY LICENSOR OR OTHER SUPPLIER OF COMPANY) SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THESE TERMS REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THESE TERMS, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THESE TERMS DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE.
12. Term and Termination.
(a) Term. These Terms are effective until all Subscriptions for the Services have expired or are terminated. For monthly subscriptions, services shall be automatically renewed under these same Terms unless either party requests termination at least ten (10) days prior to the end of the then-current term.
(b) Suspension of Services. Company may suspend Customer’s access to the Services in the event that: (i) Customer’s account is overdue; or (ii) Customer has breached any Sections of these Terms; or (iii) suspension is necessary to prevent harm or liability to other customers or third parties, or to preserve the security, stability, availability or integrity of the Services. However, unless Customer’s Subscription has been terminated, Company will cooperate with Customer to promptly restore access to the Services upon verification that Customer has resolved any and all conditions requiring suspension.
(c) Termination for Cause. Either party may terminate the Subscription, if the other party: (i) fails to cure any material breach of these Terms (including a failure to pay undisputed fees) within thirty (30) days after written notice detailing the breach; (ii) for repeated violations of these Terms.
(d) Effect of Termination. Upon any expiration or termination of the Subscription: (i) all Services shall terminate; (ii) Customer’s right to access the Services will cease. If Company terminates Customer’s Subscription for cause, any payments for the remaining portion of the Subscription will become due and must be paid immediately by Customer. Except where these Terms specify an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
13. Indemnification. Each Party shall, at all times, defend, indemnify, and hold harmless the other Party, its officers, employees, and agents from and against all losses, costs, damages and expenses (including legal fees and costs), claims, suits, proceedings, demands and liabilities of any kind or nature to the extent arising out of or resulting from acts or omissions of the other Party or its employees, officers, agents or subcontractors, in the performance of the other Party’s obligations under these Terms.
14. Governing Law; Dispute Resolution.
(a) All matters relating to the Terms and the Services, and any dispute or claim arising therefrom or related thereto (in each instance, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of North Carolina without giving effect to any choice or conflict of law provision or rule.
(b) Any dispute between Company and Customer must first be attempted to be resolved by way of informal negotiations. Company and Customer both represent and warrant that it will engage in such informal negotiations in good faith.
(c) Any controversy or claim arising out of or relating to these Terms, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The number of arbitrators shall be one. The place of arbitration shall be Durham, North Carolina, and North Carolina law shall apply. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
15. Non-Exclusive Service. Customer acknowledges that Services provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Company’s ability to provide the Services or other technology.
16. Assignment. Neither Party shall assign any of its rights or delegate any of its obligations under these Terms without the other Party’s prior written consent. Any purported assignment or delegation in violation of these Terms is null and void. No assignment or delegation relieves either Party of any of its obligations under these Terms.
17. No Waiver. No waiver shall be effective unless it is in writing and signed by the waiving Party. The waiver by either Party of any breach of these Terms shall not constitute a waiver of any other or subsequent breach.
18. Severability. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.
19. No Third-Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person other than the Parties.
20. Entire Agreement. Any order confirmation, these Terms, and our website Terms and Conditions will be deemed the final and integrated agreement between you and us on the issues covered in those collective items.
21. Notices. Except as otherwise permitted in these Terms, notices shall be in writing and shall be deemed to have been given (a) five (5) business days after mailing if sent by registered or certified U.S. mail, (b) when transmitted if sent by facsimile, provided that a copy of the notice is promptly sent by another means specified in this section, or (c) when delivered if delivered personally or sent by electronic mail.
BY CREATING AN ACCOUNT, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTANDS THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. CUSTOMER FURTHER CERTIFIES CUSTOMER’S UNDERSTANDING AND ACCEPTANCE OF THESE TERMS AND THAT CUSTOMER IS KNOWINGLY ENTERING INTO THIS LEGALLY BINDING CONTRACT.
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