Terms of Use Agreement

Welcome to upperhand.com, the online and mobile service of Upper Hand, Inc. (“Upper Hand,” “we,” or “us”). This page explains the terms by which you may use our online and/or mobile services, web sites (including without limitation team, league, or other pages or applications hosted on or provided by the Upper Hand platform), and software provided on or in connection with the service (collectively the “Service”). By accessing or using the Service, you signify that you have read, understood, and agree to be bound by this Terms of Use Agreement (“Agreement”) and to the collection and use of your information as set forth in the Upper Hand Privacy Policy, whether or not you are a registered user of our Service. Upper Hand reserves the right to make unilateral modifications to these terms and will provide notice of these changes as described below. This Agreement applies to all visitors, users, and others who access the Service (“Users”).

PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

Use of Our Service
Eligibility

You may use the Service only if you can form a binding contract with Upper Hand, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 13 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by Upper Hand.

Service License Grant

Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal, noncommercial use only (unless you are an Organization, as defined below) and as permitted by the features of the Service. Upper Hand reserves all rights not expressly granted herein in the Service and the Upper Hand Content (as defined below).

Upper Hand Accounts

Your Upper Hand account gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users, such as academies, facilities, gyms, franchises, teams, leagues, associations, other organizations or entities and their representatives (“Organization(s)”), players, parents, clients, customers, staff, employees or volunteers. If you open an Upper Hand account on behalf of a company, Organization, or other entity, then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement (and to any related agreements, such as order forms, which you agree to on its behalf), and that you agree to this Agreement on the entity’s behalf. By connecting to Upper Hand with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.

You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify Upper Hand immediately of any breach of security or unauthorized use of your account. You agree that Upper Hand will not be liable for any losses caused by any unauthorized use of your account or of any password you create for your account.

You may control your User profile and how you interact with the Service by changing the settings in your settings page. By providing Upper Hand with your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your settings page; provided that you may not opt-out of Service-related e-mails. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.

Service Rules

You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Upper Hand servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Upper Hand grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from upperhand.com for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.

Accessing any audiovisual content that may be available on the Service for any purpose or in any manner other than Streaming (as defined below) is expressly prohibited unless explicitly permitted by the functionality of the Service. “Streaming” means a contemporaneous digital transmission of an audiovisual work via the Internet from the Upper Hand Service to a User’s device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by the User.

We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service or to any features of the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.

You are solely responsible for your interactions with other Upper Hand Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Upper Hand shall have no liability for your interactions with other Users, or for any User’s action or inaction.

Security

Upper Hand cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.

Mobile Software

We may make available software to access the Service via a mobile device (“Mobile Software”). To use the Mobile Software you must have a mobile device that is compatible with the Mobile Software. Upper Hand does not warrant that the Mobile Software will be compatible with your mobile device. Upper Hand hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one Upper Hand account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (v) delete the copyright and other proprietary rights notices on the Mobile Software. You acknowledge that Upper Hand may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and Upper Hand or its third party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Upper Hand reserves all rights not expressly granted under this Agreement. If the Mobile Software is being acquired on behalf of the United States Government, then the following provision applies. Use, duplication, or disclosure of the Mobile Software by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. The Mobile Software originates in the United States, and is subject to United States export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and the Upper Hand Service.

Mobile Software from iTunes

The following applies to any Mobile Software you acquire from the iTunes Store (“iTunes-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and Upper Hand, not Apple, and that Apple has no responsibility for the iTunes-Sourced Software or content thereof. Your use of the iTunes-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes-Sourced Software. In the event of any failure of the iTunes-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Upper Hand as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the iTunes-Sourced Software or your possession and/or use of the iTunes-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Upper Hand as provider of the software. You acknowledge that, in the event of any third party claim that the iTunes-Sourced Software or your possession and use of that iTunes-Sourced Software infringes that third party’s intellectual property rights, Upper Hand, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Upper Hand acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as relates to your license of the iTunes-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the iTunes-Sourced Software against you as a third party beneficiary thereof.

Third-Party Material

The Service may contain links to third-party websites or information about third parties, such as advertisers, Organizations, or their respective services, special offers, or other events or activities that are not owned or controlled by Upper Hand. Upper Hand does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services, including without limitation those embedded within Organization pages hosted on the Service. Without limiting the generality of the foregoing, Upper Hand shall not be responsible for the completeness or accuracy of any information hosted or provided by any third party sites or for deleting any such information. If you access a third party website or content from the Service, you do so at your own risk, and you understand that this Agreement and Upper Hand’s Privacy Policy do not apply to your use of such sites or services. You expressly relieve Upper Hand from any and all liability arising from your use of any third-party website, service, or content, including without limitation User Content submitted by other Users. Additionally, your dealings with third parties such as advertisers or other Users found on the Service or participation in their promotions or activities, including without limitation payment and delivery of goods or services, and any other terms of those relationships (such as warranties or liability) are solely between you and such third parties. You agree that Upper Hand shall not be responsible for any harm, loss, or damage of any sort relating to your dealings with such third parties (including without limitation in relation to your participation in any activities of Organizations or the participation of any User in connection with such activities).

User Content
Some areas of the Service allow Users to post or submit content such as profile information, roster or biographical information, text, pictures, videos, comments, questions, and other content or information (any such materials a User submits, posts, displays, or otherwise makes available on the Service or to Upper Hand is “User Content”). We claim no ownership rights over User Content created by you. The User Content you create remains yours; however, by sharing User Content through the Service, you agree to allow others to view, edit, and/or share your User Content in accordance with your settings and this Agreement. Upper Hand has the right (but not the obligation) in its sole discretion to remove any User Content that is shared via the Service.

You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current or (ix) violates any team, league, or other applicable policy. You agree that, and represent and warrant that, any User Content that you post, and Upper Hand’s use thereof as contemplated by this Agreement and the Service, does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. To the extent that your User Content contains music, you hereby represent that you are the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted below. Upper Hand reserves the right, but is not obligated, to reject and/or remove any User Content that Upper Hand believes, in its sole discretion, violates these provisions. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.

For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

In connection with your User Content, you affirm, represent and warrant the following:
(i) You are solely responsible for obtaining all consents as may be required by law to collect or submit any User Content (including without limitation any personally identifiable information such as biographical information) relating to third parties;

(ii) If you are an Organization that uses Upper Hand to perform Services on your behalf, you agree that you shall post, and are solely responsible for posting, all applicable privacy policies or notifications on your site, including instances in which your site is hosted or maintained by Upper Hand, and for making all appropriate disclosures to visitors to the site, and to other end users whose information you collect, and for obtaining any necessary consent(s) from such individuals, with respect to your collection and use of personal information and including your disclosure of user personal information to service providers such as Upper Hand; and

(iii) If you are an Organization that uses Upper Hand to perform Services on your behalf and you collect personal information from individuals, you acknowledge and agree that you will not collect or cause to be collected and shared with Upper Hand or hosted on Upper Hand’s servers certain types of personal information that could trigger state breach notification laws in the event the information is accessed by an unauthorized person, including, but not limited to, Social Security Numbers, driver’s license numbers, bank account or credit card numbers, unless such information is provided to Upper Hand in a system specifically designed to protect and store such information.  If such information is shared with Upper Hand or hosted on Upper Hand’s servers in a manner that Upper Hand deems to be insecure, Upper Hand has the right, but not the obligation, in its sole discretion to delete and remove any personal information stored on its systems that it deems to be stored in an unsecure manner. In the event that an incident of unauthorized access or disclosure of such data triggers state breach notification laws because of your breach of this section, you agree that you will be wholly responsible for the timing, content, cost and method of any such notice and compliance with such laws.

(iv) Upper Hand may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.

Upper Hand takes no responsibility and assumes no liability for any User Content that you or any other User or third party submits, posts, or sends over the Service. You shall be solely responsible for your User Content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Upper Hand shall not be liable for any damages you allege to incur as a result of User Content. You understand that Organizations are solely responsible for their independent data practices and their use or distribution of User Content or any other information or data obtained via the Service.
User Content License Grant

By posting any User Content on the Service or otherwise submitting User Content to Upper Hand, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Upper Hand a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in accordance with your settings and this Agreement, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and Upper Hand’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Service a non-exclusive license to access your User Content through the Service (to the extent such User Content is made available to those Users via the features and functionality of the Service, including any applicable privacy settings), and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under this Agreement.

DMCA Notice

Since we respect artist and content owner rights, it is Upper Hand’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).

If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Upper Hand’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:

i. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
ii. Identification of the copyrighted work that you claim has been infringed;
iii. Identification of the material that is claimed to be infringing and where it is located on the Service;
iv. Information reasonably sufficient to permit Upper Hand to contact you, such as your address, telephone number, and, e-mail address;
v. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
vi. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.

The above information must be submitted to the following DMCA Agent:

Attn: DMCA Notice
Upper Hand, Inc.

Address:
129 E. Market Street
Suite 400
Indianapolis, IN 46204
Email: [email protected]

UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.

Please note that this procedure is exclusively for notifying Upper Hand and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Upper Hand’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.

In accordance with the DMCA and other applicable law, Upper Hand has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Upper Hand may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

Privacy

We care about the privacy of our Users. You understand that by using the Services you consent to the collection, use and disclosure of your personally identifiable information and aggregate data as set forth in our Privacy Policy, and to have your personally identifiable information collected, used, transferred to and processed in the United States. In addition, if you are, or represent, an Organization, to the extent you or your Organization shares with any third party data that is collected by or stored on the Service, you represent and warrant that you have all required consents to collect and share such data with such third parties.

Children’s Data Privacy

The Children’s Online Privacy and Protection Act (“COPPA”) requires that online service providers obtain clear and verifiable parental consent before receiving personal information from children under 13. Upper Hand Service is not directed to children under 13. If you are a Organization, parent, or other User, you certify you will not permit or request that children under 13 submit information to the Upper Hand Service directly. We recommend that Organizations provide a copy of our Privacy Policy to parents and guardians of any children whose information the Organization may submit to the Upper Hand Service.

Our Rights
Upper Hand Content

Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “Upper Hand Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Upper Hand and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Upper Hand Content. Use of the Upper Hand Content for any purpose not expressly permitted by this Agreement is strictly prohibited.

You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products, and requests for improvements to the Service may be contained in an order form, statement of work, or otherwise (collectively, “Idea(s)”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Upper Hand under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. Any improvements made to the Service as a result of any Idea will be solely owned by Upper Hand. You further acknowledge that, by acceptance of your submission, Upper Hand does not waive any rights to use similar or related ideas previously known to Upper Hand, or developed by its employees, or obtained from sources other than you.

Upper Hand Data

Certain aspects of the Service may allow you to obtain, view or access certain facility, training, league, game, team, or player statistics or records, fictional property representing real-world or virtual achievements, or to access other data or information which has been provided by other User(s) or developed by Upper Hand (“Upper Hand Data”). You understand and agree that regardless of terminology used, Upper Hand Data represents a limited license right governed solely by the terms of this Agreement and available for distribution at Upper Hand’s sole discretion. Upper Hand Data is not redeemable for any sum of money or monetary value from Upper Hand at any time. You acknowledge that you do not own the account you use to access the Service, nor do you possess any rights of access or rights to data stored by or on behalf of Upper Hand on Upper Hand servers, including without limitation any data representing or embodying any or all of your Upper Hand Data. You agree that Upper Hand has the absolute right to manage, regulate, control, modify and/or eliminate Upper Hand Data as it sees fit in its sole discretion, in any general or specific case, and that Upper Hand will have no liability to you based on its exercise of such right. All data on Upper Hand’s servers are subject to deletion, alteration or transfer. NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH DATA BY YOU OR ANY THIRD PARTY, YOU UNDERSTAND AND AGREE THAT ANY DATA, ACCOUNT HISTORY AND ACCOUNT CONTENT RESIDING ON Upper Hand’S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN Upper Hand’S SOLE DISCRETION, INCLUDING AT THE REQUEST OF ANOTHER USER OR OTHER THIRD PARTY, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND. Upper Hand DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON Upper Hand’S SERVERS.

Paid Services

Certain aspects of the Service may be provided for a fee or other charge. If you elect to use paid aspects of the Service, your use of such aspects of the Service shall be subject to this Agreement and the Subscriber Terms and Conditions. You also agree to be bound by the specific terms included in any order form, statement of work, or the like (if applicable) to which you indicate your acceptance (for instance, by signing the form or via online click-through acceptance, or by making related payments to Upper Hand). If there is any conflict between the Subscriber Terms and Conditions and this Agreement with respect to your use of the paid aspects of the Service, the Subscriber Terms and Conditions shall prevail. If you make a registration payment or other payment to an Organization via the Service, you agree that the transaction is solely between you and that Organization and any refund requests, including without limitation in the case of incorrect charges or unfulfilled orders, must be made directly to that Organization.

Payment Processing Services

If you are or you represent an Organization that signs up for any aspect of the Service by which Upper Hand will facilitate the processing of payments Users make to such Organization by credit card, debit card, or other payment method, you acknowledge that Upper Hand may contract with various third parties, such as banks and payment processors, to facilitate such payment processing. You must enter into a Sub-Merchant Agreement (the “Sub-Merchant Agreement”) with us and such third parties as we may select from time to time prior to Upper Hand providing any services to facilitate the processing of payments Users make to such Organization.

Background Screening Services

If you use the Service to conduct background screening of third parties, you acknowledge, certify, and/or agree that: (i) the background screening services are provided by a third party supplier under contract with Upper Hand; (ii) the coverage and accuracy of criminal record research is limited by the corresponding jurisdictions, which regulate the data, and that this data may contain errors and omissions that cannot be controlled by Upper Hand or its suppliers; (iii) Upper Hand and its suppliers provide background checks only after (a) you have provided the applicant with a clear and conspicuous disclosure, in writing, that complies with the Fair Credit Reporting Act (“FCRA”) that a background check on the applicant may be obtained for employment purposes, and (b) you have received a signed authorization from the applicant to obtain background checks; (iv) you have provided such disclosure and obtained such authorization before submitting your request for a background check; (v) you will use the background reports solely for employment purposes as defined in the FCRA; (vi) within twenty-four (24) hours of a request by Upper Hand, you will provide a hardcopy of these authorizations; and (vii) before taking any adverse action against any applicant, based in whole or in part on the background report, you will provide the applicant with a pre-adverse action notice, a copy of the background report, and “A Summary of Your Rights Under the Fair Credit Reporting Act,” issued by the Consumer Finance Protection Bureau.

Mobile Charges

You may use mobile data in connection with Upper Hand’s mobile software applications and/or opt-in to receive certain notifications or information via text messaging. You may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges.

Indemnity
You agree to defend, indemnify, and hold harmless Upper Hand and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above, such as your failure to obtain any necessary consents for submission of User Content or other information to the Service or to Upper Hand; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) any of your User Content or any that is submitted via your account; (vi) any other party’s access and use of the Service with your unique username, password or other appropriate security code; (vii) your involvement with or participation in any Organizations’ activities (if applicable); (viii) in the case of an Organization, any other User’s involvement with you or participation in your activities (if applicable); (ix) your use of background screening services, inaccuracies in the screening results, or the reliance on those background screenings by any third parties; and/or (x) in the case of an Organization, your violation of any term of the Sub-Merchant Agreement, if applicable. Your obligations under this Section 6 will survive termination of this Terms of Use Agreement.

No Warranty
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Upper Hand OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, Upper Hand, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT (INCLUDING WITHOUT LIMITATION ANY INFORMATION PROVIDED IN CONNECTION WITH BACKGROUND SCREENING) IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE. Upper Hand does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the background screening materials provided to you if you choose to use the background screening tool.

Upper Hand DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE Upper Hand SERVICE OR ANY HYPERLINKED OR EMBEDDED WEBSITE OR SERVICE (INCLUDING WITHOUT LIMITATION THOSE OFFERED BY OTHER USERS, SUCH AS ORGANIZATIONS), AND Upper Hand WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW EXCLUSIONS AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL Upper Hand, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL Upper Hand BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Upper Hand ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL Upper Hand, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING $25.00.

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF Upper Hand HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

The Service is controlled and operated from facilities in the United States. Upper Hand makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.

Governing Law, Arbitration, and Class Action/Jury Trial Waiver
Governing Law

You agree that: (i) the Service shall be deemed solely based in Indiana; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Indiana. This Agreement shall be governed by the internal substantive laws of the State of Indiana, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Marion County, Indiana for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Marion County, Indiana is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.

Arbitration

READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM Upper Hand. For any dispute with Upper Hand, you agree to first contact us at [email protected] and attempt to resolve the dispute with us informally. In the unlikely event that Upper Hand has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, Inc. (“JAMS”), under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Marion County, Indiana, unless you and Upper Hand agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Upper Hand from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.

Class Action/Jury Trial Waiver

WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND Upper Hand ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.

General
Assignment

This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Upper Hand without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.

Notification Procedures and Changes to the Agreement

Upper Hand may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Upper Hand in our sole discretion. Upper Hand reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Upper Hand is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Upper Hand may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the bottom of this page. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Use. If you do not agree to any of these terms or any future Terms of Use, do not use or access (or continue to access) the Service.

Entire Agreement/Severability

This Agreement, together with any amendments and any additional agreements you may enter into with Upper Hand in connection with the Service (such as Subscriber Terms and Conditions, order forms, or statements of work), shall constitute the entire agreement between you and Upper Hand concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.

No Waiver

No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Upper Hand’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.

Contact

Please contact us at [email protected] with any questions regarding this Agreement.

This Agreement was last modified on January, 5 2019.