I. Introduction and Eligibility
The Terms constitute a binding agreement between you and The Upside Agency, LLC and its affiliates (“The Upside,” “The Upside Community,” “company,” “we,” “community,” or “us”) with respect to your use of this Sites and Services. If you do not agree to these Terms, please do not use or access the Sites or Services. Additional terms may apply in the case of certain specific Services we offer. Any such additional policies, terms, and conditions are incorporated into these Terms and will serve an amendment hereto. We reserve the right to cancel and/or terminate any user’s account for any violation of these Terms.
You must be at least 18 years of age to use our Services. If you are not 18 or older, you may not use the Services.
These Terms provide for the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and limit the remedies available to you. You can opt-out of this agreement to arbitrate by contacting firstname.lastname@example.org within 30 days of first accepting these Terms and stating that you (include your first and last name) decline this arbitration agreement.
You hereby give your consent for the collection, use, storage, and display of personal information entered into the application along with your other profile information. WE WILL ONLY USE YOUR PERSONAL INFORMATION WITHIN THE CONFINES OF OUR COMMUNITY AND WILL NEVER SHARE OR SELL YOUR INFORMATION TO ANY OUTSIDE COMPANY WHATSOEVER.
You can browse certain parts of the Sites as a visitor, but many features, offerings, and other elements of the Services are available only to those who join our membership by paying our monthly or annual membership fee (“Members”). By filling out the application on the Sites, you acknowledge and agree that the information input into the application may be included in a membership profile for our community to view. You agree not to include any links to social profiles you would not want to be visible to our community. You hereby give your consent for the collection, use, storage, and display of your personal information entered into the application along with your other profile information. WE WILL ONLY USE YOUR PERSONAL INFORMATION WITHIN THE CONFINES OF OUR COMMUNITY AND WILL NEVER SHARE OR SELL YOUR INFORMATION TO ANY OUTSIDE COMPANY WHATSOEVER.
Payments for membership are processed and secured by a third party payment processor (currently Stripe and Chargebee). By inputting and submitting your payment information, you represent and warrant that you (i) have all rights to make payments to use through that account and (ii) you agree to the terms and conditions presented by Stripe at www.stripe.com/legal/.
You agree that your membership fee payment is final and nonrefundable. Your membership will automatically renew each quarter with a charge of the then-current membership fee to your credit card on file unless you inform us otherwise prior to the end of your current subscription term by emailing email@example.com.
To update your account information, which you agree to do to make sure it is materially accurate and complete, you should email firstname.lastname@example.org
You agree we may contact you with updates about your account, with our regular newsletter, and in connection with Your Content (defined below). You may opt out of our emails using the unsubscribe link in its footer anytime.
You are solely responsible for Your Content and the consequences of posting or publishing Your Content. By posting or publishing Your Content, you affirm, represent, and warrant that:
(i) you are the creator and owner of Your Content, or have the necessary licenses, rights, consents, and permissions to authorize The Upside and other The Upside users of the Service to use and distribute Your Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by The Upside, the Service, and these Terms; and (ii) Your Content, and the use of your Your Content as contemplated by these Terms, does not and will not: (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (C) cause The Upside to violate any law or regulation.
Events. If you attend a company event, you also grant The Upside the right to use any photos or videos taken of you at the event for The Upside’s promotional and advertising purposes and otherwise on the Sites and Services without compensation to you, and waive any rights of privacy, publicity, or any other similar rights you may have in connection with such photos or videos.
Feedback. We always appreciate your feedback or other suggestions about our Services, but you understand that we may use your feedback or suggestions without any obligation to compensate you for them (just as you have no obligation to offer them).
IMPERMISSIBLE USE OF THE SITE AND SERVICE
You agree not to use the Sites and/or Services to:
● Copy, recreate, or otherwise misappropriate the content posted by Erin Halper, The Upside and other users of the Sites.
● Post unauthorized commercial communications (such as spam) on Facebook.
● Collect other users’ content or information using automated means (such as harvesting bots, robots, spiders, or scrapers) without our prior permission.
● Upload viruses or other malicious code.
● Solicit login information or access an account belonging to someone else.
● Post content that: is hate speech, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence.
● Do anything unlawful, misleading, malicious, or discriminatory.
● Do anything that could disable, overburden, or impair the proper working or appearance of the Services, such as a denial of service attack or interference with page rendering or other our functionality.
● Facilitate or encourage any violations of These terms.
● Post content or take any action on the Sites that infringes or violates someone else’s rights or otherwise violates the law.
● Infringe others’ intellectual property rights.
● Use our copyrights or trademarks or any confusingly similar marks without our prior written permission.
Other than Your Content (or the Content provided by other users that qualifies as “Your Content” for them – we’ll call it “Others’ Content”), we own any and all of the content, advice, and information on the Sites and Services, including all IP Content (“Our Content”).
We grant you, on a personal and individual basis, permission to access and use Our Content as necessary for you to enjoy the Services. You may not use Our Content for any other purpose, on behalf of any third party individual, or on behalf of any entity absent the separate written agreement of The Upside.
DISCLAIMER OF WARRANTIES
THE SITE AND SERVICES AND THE CONTENT PROVIDED ON OR THROUGH THE SITE AND SERVICES IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, AND THE UPSIDE HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT. NEITHER THE UPSIDE NOR ANY PERSON ASSOCIATED WITH THE UPSIDE MAKES ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SITES AND SERVICES, NOR THEIR CONTENT. WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR ANYONE ASSOCIATED WITH THE UPSIDE REPRESENTS OR WARRANTS THAT THE SITES, SERVICES OR THE CONTENT WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SITES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SITES AND SERVICES OR THEIR CONTENT WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
LIMITATION OF LIABILITY
IN NO EVENT WILL THE UPSIDE, ITS LICENSORS OR CONTENT PROVIDERS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SITES AND/OR SERVICES, OR ANY CONTENT, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. USE OF THE SITES, SERVICES AND/OR THEIR CONTENT IS AT YOUR SOLE RISK.
You agree to defend, indemnify and hold harmless The Upside and its officers, directors, employees, agents, licensors and content providers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) resulting from your violation of these Terms, or your use of Sites, or Services.
The trademarks and service marks displayed on the Sites and Services are the registered and unregistered trademarks, service marks and trade dress of The Upside and its licensors. The Upside’ trademarks, service marks and trade dress may not be used in connection with any product or service that is not The Upside, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits The Upside. All other trademarks not owned by The Upside that appear on the Sites or in any Service are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by The Upside.
Except for Your Content, all content included on or made available through any Services, such as text, graphics, logos, button icons, images, audio clips, digital downloads, and data compilations is the property of The Upside or its content suppliers and protected by United States and international copyright laws. The compilation of all content included in or made available through any Services is the exclusive property of The Upside and protected by U.S. and international copyright laws.
The Services may contain links to third-party websites. These links are provided for your convenience only. The Upside has no control over third-party websites and we are not responsible for the content of such websites or the privacy practices of those third-party websites. If you decide to access a third-party website linked from the Sites, you do so entirely at your own risk and your use of those sites is subject to those websites’ terms and conditions and privacy policies.
THIRD-PARTY PRODUCTS AND SERVICES
Any products and/or services offered by third parties you obtain as a Member or visitor (including without limitation through discounted goods/services, giveaways, or as Member perks) are offered and/or sold by their third party creator, performer and/or brand. THE UPSIDE SHALL HAVE NO LIABILITY WHATSOEVER IN CONNECTION WITH THESE PRODUCTS OR SERVICES.
READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND IMPACTS HOW CLAIMS YOU AND THE UPSIDE MAY HAVE AGAINST EACH OTHER ARE DETERMINED.
Agreement to Arbitrate
You and The Upside agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to this or previous versions of the Terms, your use of Sites or Services, or to any products sold or distributed by The Upside or through our Services will be resolved by binding arbitration, rather than in court, except that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) bring an action in a court pursuant to the California Private Attorneys General Act of 2004, California Labor Code § 2698 et seq.; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address an intellectual property infringement claim. The Federal Arbitration Act applies to this agreement.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow these Terms as a court would.
The arbitration hearing will be held in the country in which you reside or at another mutually agreed location. You or The Upside may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and The Upside subject to the arbitrator’s discretion to require an in-person hearing.
The arbitrator will decide all claims in accordance with applicable law. The arbitrator shall not be bound by rulings in prior arbitrations involving other The Upside users, but is bound by rulings in prior arbitrations involving the same company user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the arbitrator’s award may be entered in any court having jurisdiction.
Arbitration is not a mandatory condition of these Terms. If you do not want to be subject to this Agreement to Arbitrate provision, you may opt out of by notifying The Upside in writing of your decision by sending, within 30 days of the date you receive these Terms, an electronic message to email@example.com, stating clearly your full name and intent to opt out of the Agreement to Arbitrate. Should you choose not to opt out of this Agreement to Arbitrate within the 30-day period, you and The Upside will be bound by the terms of this Agreement to Arbitrate. You understand that you will not be subject to retaliation if you exercise your right to opt out of coverage under this Agreement to Arbitrate.
Prohibition of Class, Representative, and Consolidated Actions
You and The Upside agree that each of us may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action. Unless both you and The Upside agree otherwise, the arbitrator may not join more than one party’s claims, and may not adjudicate or determine any form of a representative, class, or consolidated proceeding. The arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party bringing the claim, if such relief is warranted by the facts and law. Any relief awarded by the arbitrator will not affect other company users.
If for any reason a claim proceeds in court rather than in arbitration both you and The Upside each waive any right to a jury trial. You and The Upside also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
GOVERNING LAW AND JURISDICTION
Any dispute or claim relating in any way to these Terms or previous versions of these Terms, your use of any Services, or any products sold or distributed by The Upside or through the Services, shall be governed by and construed in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provision or rule.
Unless you and The Upside agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, any legal suit, action or proceeding arising out of or related to these Terms or previous versions of these Terms, your use of any Services, or any products sold or distributed by The Upside or through The Upside Services shall be instituted exclusively in the federal or state courts located in New Jersey. You agree to waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
WAIVER AND SEVERABILITY
No waiver of these Terms by The Upside shall be deemed a further or continuing waiver of such Terms or any other term or condition, and any failure of The Upside to assert a right or provision under these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is held by a court 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 these Terms will continue in full force and effect.
UNITED STATES ONLY
Unless otherwise specified, the Services are presented solely for the purpose of promoting products and services available in the United States. The Upside makes no representation that the The Upside Services are appropriate or available for use in other locations. If you access The Upside Services from locations outside the United States, you do so at your own risk and you are responsible for compliance with any applicable local laws.
The Upside reserves the right to make changes to these Terms, including the terms that apply to purchases or returns, at any time. If The Upside makes a material modification to these Terms, we will attempt to notify you by displaying an announcement within the Services or by sending you an email, and that will be deemed sufficient notification of such changes.
If you have questions or comments about these Terms or the Services, please write, phone or email us via the contact information below:
The Upside Agency, LLC
46 Woodmere Drive
Summit, NJ 07901
Last updated: April 21, 2020.
©2020 The Upside Agency, LLC. All Rights Reserved.
When you visit the Sites, we log and store your IP Address and technical information about your visit like your browser type and how you progressed through the Sites, where you abandoned it, etc.
When you join The Upside’s membership by completing the application form available on the Sites, we will collect each item of information on that application (collectively, “Application Info”), including the personal information (“PII”) and social media profile information you choose to input there (“Social Info”).
If you supply or upload photos, logos, images, text, or any other content in connection with your account or our Facebook Community page, including PII, we refer to that as “Community Data” in this Policy.
Cookies, Web Beacons, and Similar Mechanisms
We may place a small piece of software referred to as a “cookie” on your computer to help us collect this information, and you can remove this and other cookies through your browser preferences menu, though the exact method varies depending on the type of browser you use. If you visit from a mobile device, we may reference your device identifier or other information about where your visit originated. This helps us, among other things, recognize you when you come back to the Sites and pick up where we left off.
We also collect data from Google Analytics, and we may use this anonymous aggregate data to remarket to users via cookies. We use Facebook remarketing cookies on our site.
You can clear these and other cookies by emptying your browser’s cache through the browser preferences and/or setting.
Small graphic images (also known as “pixel tags” or “clear GIFs”) may be included on our Services or in our emails. Web beacons typically work in conjunction with cookies to help The Upside understand our users and their behavior. Web beacons do not collect or track Personal Information.
We may use metadata or the data collected through cookies, log files, device identifiers, location data and clear GIF information (collectively, “Usage Data”) to: (a) remember information so that you will not have to re-enter it during your visit or the next time you visit the Sites; (b) provide custom, personalized content and information, including advertising; (c) provide and monitor the effectiveness of our Sites and Services; (d) understand how you use the Sites and Services (e.g., the pages you view, the links you click, how frequently you access the Sites and Services, and other actions you take on the Sites and Services); (e) monitor aggregate metrics such as total number of visitors, traffic, usage, and demographic patterns on our Sites and our Service; (f) diagnose or fix technology problems; and (g) otherwise to plan for and enhance our Sites and Services. We may associate Usage Data we automatically collect with your Application Info if you become a member.
We may use the information we collect (including Application Info, Usage Data, and Community Data) to:
● process and complete your transactions including, as applicable, order confirmation, billing, enrollment in our membership or other programs, and delivering products;
● connect you with and otherwise allow you with access to member perks;
● log you into and out of your account and otherwise authenticate your access;
● customize the content and/or layout of our Sites for each individual member, including providing you with personally tailored special offers, programs, and promotional information;
● contact members regarding their orders or accounts;
● register members to receive emails or other information or materials they request;
● respond to questions and comments and provide customer support;
● communicate with members about our promotions and other services, and provide information to you about programs, products, or services that we believe may be of interest to you, or share with you special offers from specially selected business partners of ours;
● operate, evaluate, and improve our business and the products and services we offer;
● enforce our Terms of Service and other agreements; and
● comply with applicable legal requirements or obligations and industry standards.
We may enable you to sign into the Sites via social networks or access social networks through the Sites. If you do so, your use of the social network is governed by such social network’s terms and conditions and privacy policies. If you sign into the Sites via a social network or access a social network through the Sites, or if you provide Social Profile Info through your application, you agree to grant us access to certain information from your social network profile, and agree that we may use it on your profile and otherwise as a part of Application Info. We may use this information to help you personalize your experience with the Sites, to suggest new features and content that may be relevant to you, or for statistical or other business purposes.
We also may use the information we obtain about you in other ways for which we provide specific notice at the time of collection.
We may share Usage Data with our third party service providers in the course of our operations, affiliates of our business, or in connection with the display of first or third party advertising specific to your geographic location. We may also engage third parties to help us improve our business, such as analytics providers, and such parties may have access to aggregate or individual Usage Data.
Third Party Sharing. In the ordinary course of our business we may share Application Info as follows:
● with our affiliates (meaning entities controlled by, controlling or under common control with us). You are consenting to this sharing. We may also combine information internally across different Services;
● to carry out your instructions (for example, to process a perk request) or where we have your specific consent;
● to administer and track usage of member benefits;
● with our third party vendors (such as a cloud hosting provider or security service) where such sharing is necessary for us to optimize, secure, or deliver the Services to you;
● to conduct research and development for the improvement of our Services.
We care about the security of your information and use commercially reasonable physical, administrative, and technological safeguards to preserve the integrity and security of all information we collect and, in some cases, share with our service providers. Because of the nature of our Sites, WE DO NOT CURRENTLY ENCRYPT ANY TRANSMISSIONS TO OR FROM THE WEBSITE IN ANY MANNER. IF YOU ARE UNCOMFORTABLE WITH THE UNENCRYPTED TRANSMISSION OF THE INFORMATION DESCRIBED HEREIN, PLEASE DO NOT SUBMIT INFORMATION TO US THROUGH THE SITE. While we take reasonable precautions against possible security breaches, no website or internet transmission is completely secure and we cannot guarantee that unauthorized access, hacking, data loss or other breach will never occur. In the event that any information under our control is compromised as a result of a breach of security, we will take reasonable steps to investigate the situation and where appropriate, notify those individuals whose information may have been compromised and take other steps, in accordance with any applicable laws and regulations.
Your activity on the Sites does not allow us to recognize or acknowledge Do Not Track signals, though our registration process and services are secured according to specific contractual promises. Do not transmit any sensitive or personal information using the Sites other than as directed to become a member.
The Sites may, from time to time, contain links to and from third party websites of our partner networks, advertisers, partner merchants, suppliers, retailers and affiliates. If you follow a link to any of these websites, please note that these websites have their own privacy policies and that we do not accept any responsibility or liability for their policies. Please check the individual policies before you submit any information to those websites.
California Civil Code Section 1798.83, known as the “Shine The Light” law, permits our customers who are California residents to request and obtain from us a list of what personal information (if any) we disclosed to third parties for direct marketing purposes in the preceding calendar year and the names and addresses of those third parties. Requests may be made only once a year and are free of charge. Under Section 1798.83, we currently do not share any PII directly with third parties for their direct marketing purposes.
Minors under 18 are not permitted to use our Sites and we do not intentionally collect information from minors under 13. If you believe we have collected any personal information from a child younger than 13 years of age, please notify us immediately at firstname.lastname@example.org and we will do anything reasonably possible to remove that information from our systems.
If you have any questions about our privacy practices, or if you wish to remove any of your Personal Information from our records please contact us at either:
The Upside Agency, LLC
46 Woodmere Drive
Summit, NJ 07901
Note that we do not have identifying information on file for most users, only members. We can only remove PII actually in our possession, and maintaining your member profile information is necessary for the continued use of our Sites and Services.
Please note: Information you have shared with others on our Community page, or that others have copied, may also remain visible after you have closed your account or deleted the information from your own profile.