Terms Of Use

Last Updated: October 11, 2017

These terms of use (the “Terms”) are entered into between you and UpStack, Inc. (“UpStack”) and represent a legal agreement between you and UpStack. These Terms, together with any documents they expressly incorporate by reference, including the Privacy Policy, govern your and your organization’s access to and use of all of the following (collectively, the ”Services”):

(1) the website [https://upstack.io] and the mobile application [https://marketplace.upstack.io] (the “Site“);

(2) any services or applications offered by UpStack (but not by third parties) in connection with the Site; and

(3) any information, data, software, interfaces, code, widgets, tools or other materials contained in or accessible by means of the Site (the “UpStack Information“).

By accessing or using any of the Services, you acknowledge that you have read, understood, and agree to be bound by and comply with these Terms without any modification or reservation whatsoever.  If you do not wish to be bound by these Terms, your only option is not to use or access the Site. If you are accessing these Services on behalf of a company, a vendor or other commercial enterprise (“Commercial Principal”), you are agreeing on behalf of the Commercial Principal that the Commercial Principal will be bound by these terms and are certifying that you have the authority to bind the Commercial Principal. If the Commercial Principal does not agree to all or any of these Terms, or if you do not have the authority to bind the Commercial Principal to these Terms, do not select the “Accept” box when prompted.

 If you are an employee of or are accessing the Services or the Site on behalf of a Commercial Principal, please note that UpStack may have entered into a separate service and/or subscription agreement with your Commercial Principal (“Service Agreement”). If UpStack has entered into a Service Agreement with your Commercial Principal, you may be subject to additional terms, conditions, obligations, representations and/or warranties made under the Service Agreement. Please refer to the Service Agreement entered between the Commercial Principal and UpStack to get an accurate understanding of your rights, obligations, and terms of use before using this Site and/or Services.

UpStack reserves the right, in its sole discretion, without any obligation and without any notice requirement, to modify or revise these Terms. You are responsible for checking these Terms from time to time. Your continued use of the Services constitutes your acceptance of the new Terms. These Terms control the relationship between UpStack and you. They do not create any third party beneficiary rights. UpStack also reserves the right to suspend and/or deny access to the Services for scheduled or unscheduled maintenance, upgrades, improvements, corrections or otherwise.

 

1. USE OF SERVICES

 You acknowledge that UpStack is not a colocation or network services provider and does not represent or speak on behalf of any colocation or network services provider. UpStack is a data aggregator, and the data provided is for informational purposes only. The Services are in no way a substitute for your own due diligence, and UpStack does not guarantee the accuracy or correctness of the information provided.

In order to access or use the Services, you may be required to provide current and accurate identification, a username, password and other information. When registering to access or use the Services, you warrant that you are an authorized representative of your organization, and have authority to make decisions and legally bind your organization to adhere to these Terms. You also agree to correctly and truthfully identify yourself and/or your organization (e.g. broker, consultant, buyer, vendor) when registering to use the Services.

You are responsible for maintaining the accuracy and completeness of this information and for maintaining the confidentiality of your login information required to use the Services. You will be fully responsible for all activities that occur under your account with UpStack, including activities of others to whom you have provided your username or password. Please notify UpStack immediately of any unauthorized use of your account or any other breach of security.

Certain Services are provided to you free-of-charge. Other Services require payment before you can access them. The type of Services available to you depends on the type of service plan that you or your Commercial Principal have selected. Therefore, certain functionalities of the Site and/or certain Services may not be accessible by or available to you. These additional functions and services may be available to you at an additional cost.

 

2. AGE AND JURISDICTION

 You must be at least 18 years of age to use the Services, with or without registering. This Site and Services are offered and available to users who are eighteen (18) years of age or older and reside in the United States or any of its territories or possessions only. By using this Site, you represent and warrant that you are of legal age to form a binding contract with UpStack and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Site.  If you are eighteen (18) years of age, but reside in a jurisdiction outside the United States and its territories and possessions, you acknowledge and agree that you use the Site at your own risk, and that you agree to be bound by these Terms, regardless of any conflicting provisions applicable in your country of residence.

 

3. THIRD PARTY SERVICES

The Services may provide you with an opportunity to engage with third party services, provide you with information pertaining to third party services or provide you with links to third party services (“Third Party Services”) offered or made available by third party suppliers (“Third Party Organizations”).  Such Third Party Organizations are not related to, associated with or affiliated with UpStack, and UpStack has no involvement in providing the Third Party Services to you.  UpStack merely acts as a conduit to allow you to identify such third party suppliers and service providers.

UpStack is neither responsible nor liable for any activities you engage in with or any communications you have with such Third Party Organizations, even if you identify such Third Party Organizations on or through the use of the Services or communicate with them through the use of the Services.  These Terms do not apply to any Third Party Services and these Terms do not govern the practices of such Third Party Organization. When utilizing Third Party Services, you should read the relevant terms of use regarding use of such Third Party Organization websites or services including any applicable end user license agreements.

No selections you make on the Site (e.g., colocation capacity or location, network build services) are binding on any Third Party Organization unless you enter into a separate agreement with the Third Party Organization for your desired Third Party Services.  Your use of Third Party Services is subject to an independent agreement with the applicable Third Party Organization providing such Third Party Services and is not governed by these Terms.  Please read carefully all agreements, order forms and commitments you enter into with Third Party Organization for Third Party Services, and you agree that all such agreements, order forms and commitments are your sole responsibility.

Please be aware that Third Party Organizations provide their information to UpStack voluntarily.  Certain Third Party Organizations who are colocation or network service providers may upload documents and information dealing with their pricing and service levels. UpStack has no control over such information and resources provided and UpStack is not responsible for or provide any guarantee, warranty or recommendation to such Third Party Services and/or Third Party Organization. UpStack does not verify whether any such information provided on the Site about the Third Party Organization or Third Party Services is correct or up to date.  You acknowledge that the Site may contain out of date or incorrect information about the Third Party Organization or the Third Party Services.  It is your sole responsibility to obtain updated, complete and accurate information, including information about service levels, final pricing and quotes, about the Third Party Organization and the Third Party Services before you engage any such Third Party Organization or enter into any contract with them.  UpStack will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, information, events, goods or services available by or through such Third Party Organization.

 

4. LICENSE

If you are eligible to use the Services, UpStack grants you a non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Services solely under the terms and conditions provided hereunder. Any use of the Services other than as authorized by these Terms is strictly prohibited and will terminate the license granted herein. The technology and software underlying the Services is the property of UpStack and/or its licensors (the “Software”). UpStack reserves all right, title and interest in and to the Software, except for the limited rights expressly granted in these Terms.

 

5. PROPRIETARY RIGHTS

UpStack and/or its licensors own the Site and the Services, including all software and other technology provided or employed by UpStack in connection with the Services, and the contents, design, layout, functions, appearance and other intellectual property comprising the Services, including all copyrights, trademarks, service marks, trade secrets, patents and other intellectual property rights inherent therein or appurtenant thereto. UpStack does not grant any licenses to any copyrights, patents, trademarks, trade secrets or other intellectual property rights other than the limited rights to use the Services, as set forth herein and subject to these Terms.

The Site may contain also contain intellectual property of Third Party Organizations, including service marks and trademarks. Your use of this Site or the Services does not give you any right or license to use such intellectual property, without the prior written permission of the corresponding intellectual property owner.

All rights not expressly granted herein are reserved by UpStack. Your use of this Site does not grant you ownership rights of any kind in the Site or Services.

 

6. USER CONDUCT

In using the Services, you agree (i) not to send to UpStack or upload onto or through the Site any information unless you have consent to do so; and (ii) that you will not:

  • violate any applicable international, country, province, federal or state laws, regulations or rules (collectively, “Laws“) as a result of your use of the Site;
  • make any information available to UpStack if doing so would violate any applicable Laws, industry or professional codes or standards, contractual or fiduciary obligations, confidentiality obligations, or employer policies or other requirements to which you are bound;
  • transmit any information, data, images, or other materials or post any content on the Site that contain vulgar, profane, abusive or hateful language, epithets or slurs, text or illustrations in poor taste, inflammatory attacks of a personal, racial or religious nature, or expressions of bigotry, racism, discrimination or hate, or are unlawful, harmful, threatening, harassing, libelous, defamatory, vulgar, obscene or otherwise objectionable or that may invade another’s right of privacy or infringe any intellectual property right, including patent, trademark, service mark, trade secret, copyright or other proprietary rights of any third party;
  • provide any false personal information on UpStack, or create an account for anyone other than yourself without permission;
  • impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
  • violate or attempt to violate the security of any of the Services, including by: logging or attempting to log in to a server or account that you are not authorized to access; testing, scanning, probing or hacking the vulnerability of the Site or any network used by the Site or to breach security, encryption or other authentication measures or attempting to any of the foregoing; or interfering with the Site by overloading, flooding, pinging, mail bombing or crashing it or attempting to do any of the foregoing;
  • share your password, permit, authorize or enable anyone else to access your account, or do anything else that could reasonably be expected to jeopardize the security of your account;
  • reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, algorithms or any other aspect or element of any portion of the Services;
  • “scrape” UpStack Information from the Services, or use or attempt to use any engine, software, tool, agent or other device or mechanism (including browsers, spiders, bots or robots, avatars or intelligent agents) to navigate or search any portion of the Site, other than through use of the search engine and search agents available from UpStack on the Site and generally available to third party web browsers (e.g., Mozilla Firefox, Google Chrome, Apple Safari and Microsoft Internet Explorer); or
  • harvest or collect UpStack Information, email addresses or other contact information of other users from the Site or any Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications.

 

7. ADDITIONAL RESTRICTIONS/OBLIGATIONS 

  • You may not collect, develop or derive for commercial sale any data in any form that incorporates or uses any UpStack Information.
  • You may not modify, copy, distribute, download for storage on a hard drive or any other storage media, display, use, publish, license, create derivative works from, transfer or sell any UpStack Information.
  • You shall: (i) provide true, accurate, current and complete information about yourself when entering your information on the Site and when communicating with Third Party Organizations; and (ii) maintain and update this information to keep it true, accurate, current, and complete.
  • You shall abide by all copyright notices or restrictions contained in any content accessed through the Site.
  • You may not under any circumstances publish, copy, distribute, share with third parties or make public in any form any information regarding the Third Party Services or Third Party Organizations, including pricing information, location of the third party supplier or its facilities, availability of Third Party Services or service levels, no matter how obtained (whether through the Services or directly from the Third Party Organizations).
  • You agree to hold any Confidential Information (as defined below) you obtain as a result of using this Site in confidence and, unless required by law, not to make the Confidential Information available to any third party or to use the Confidential Information for any purpose other than the business activities for which you were given access to the Confidential Information. You agree to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by you, your employees, your employer or agents in violation of these Terms. For purposes of these Terms, “Confidential Information” means any and all proprietary information labeled as “confidential” or which a reasonable person would know constitutes proprietary or sensitive information, including but not limited to, communications between you and another user, pricing information, business plans, financial reports, customer lists and other customer information, descriptions of colocation centers, and marketing plans.
  • You agree that aspects of this Site, including the specific information regarding business needs of a customer and pricing information of a vendor constitute trade secrets of the person providing such information, and shall implement reasonable security measures to protect such trade secrets

 

8. SUBMISSIONS 

All remarks, suggestions, ideas, graphics, or other information (“Submissions”) communicated to UpStack through this Site will forever be the property of UpStack. You are solely responsible for the content of any Submission you make you make on this Site or to any Third Party Organization through the Site. Unless otherwise specified in writing, all Submissions made through or on the Site will be presumed to be public and UpStack will not be required to treat the information as confidential. The content of Submissions is not pre-screened. Accordingly, users who access Submissions publically available do so at their own risk, especially with respect to offensive, incorrect, and otherwise unacceptable material. Notwithstanding the foregoing, UpStack reserves the right, but does not assume any obligation, to delete Submissions that UpStack, in its sole discretion, deems abusive, defamatory, obscene, in violation of any Laws, or otherwise unacceptable.

 

9. YOUR INDEMNITY OBLIGATIONS 

You hereby indemnify, and agree to defend and hold UpStack and each Third Party Organization with whom you engage on, through or as a result of your use of the Services, and each of their respective affiliates, as well as each such party’s respective officers, directors, shareholders, employees and representatives harmless from and against any claims, losses, costs, expenses or damages, including reasonable legal fees, arising out of or relating to the Services, your use of and access to the Site or the Services, your violation of any rights of another, or resulting from your breach of these Terms or arising out of a breach of your obligations, representation and warranties under these Terms.

 

10. TERMINATION

You agree that UpStack, in its sole discretion, may suspend or terminate your account (or any part thereof), your access to the Site or use of the Services and remove and discard any content within the Services, for any reason. If UpStack suspects fraudulent, abusive or illegal activity, UpStack may refer content or accounts to law enforcement authorities. UpStack will not be liable to you or any third-party for any termination of your access to the Services.

 

11. DISCLAIMER OF WARRANTIES

YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES, INCLUDING ALL THE MATERIALS, INFORMATION, FACILITIES AND OTHER CONTENT AVAILABLE ON THIS SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE SITE OR SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UPSTACK EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE AND SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

UPSTACK DOES NOT WARRANT THAT THE SITE OR SERVICE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SITE WILL BE AVAILABLE CONTINUOUSLY, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVERS THAT MAKE THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. UPSTACK DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIAL, INFORMATION, SOFTWARE, FACILITIES, SERVICES OR OTHER CONTENT ON OR MADE AVAILABLE THROUGH THE SITE OR ANY WEBSITES LINKED TO THIS SITE IN TERMS OF THEIR QUALITY, CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. UPSTACK MAKES NO WARRANTIES THAT YOUR USE OF THE MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICES OR OTHER CONTENT ON THE SITE OR ANY OTHER WEBSITE WILL NOT INFRINGE THE RIGHTS OF OTHERS. UPSTACK ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICES OR OTHER CONTENT ON THIS SITE OR ANY OTHER WEBSITE. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.

 

12. LIMITATION OF LIABILITY

UPSTACK’S LIABILITY TO YOU IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW AND MAY NOT EXCEED THE FEES YOU HAVE PAID UPSTACK FOR USE OF THE SERVICE.  IN NO EVENT SHALL UPSTACK, ITS AFFILIATES, OR EITHER’S RESPECTIVE DIRECTORS, EMPLOYEES, SHAREHOLDERS, MEMBERS, AGENTS OR REPRESENTATIVES BE LIABLE TO YOU FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE OR SERVICE OR ANY OTHER MATERIALS OR SERVICES PROVIDED TO YOU BY UPSTACK. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION.

 

13. PRIVACY

Your use of the Services is subject to UpStack’s Privacy Policy at https://upstack.io/privacy, the provisions of which are incorporated herein by this reference. By using the Services, you acknowledge and consent to be bound by the terms of UpStack’s Privacy Policy, including UpStack’s collection, use and disclosure of your personal information.

 

14. GOOGLE MAPS AND GOOGLE GEOLOCATION

This Site uses Google Maps and Google Maps Geolocation APIs under license from Google Inc. By using Google Maps and Google Maps Geolocation while accessing the Services, you agree to be bound by Google’s Terms of Service available at https://www.google.com/intl/en/policies/terms/.

 

15. CHANGE IN CONTROL

In the event of a change of control of UpStack or the sale of substantially all of UpStack assets or other corporate event, all rights of UpStack hereunder shall be transferable without notice to you.

 

16. GOVERNING LAW & JURISDICTION

These Terms shall be governed by, construed and enforced in accordance with the laws of the United States of America and the laws of the State of New York. You hereby consent and submit to the exclusive jurisdiction of the courts of the County of New York, State of New York for any action however so arising out of these Terms.

The Terms constitute the entire agreement between you and UpStack and govern your use of the Services, superseding any prior agreements between you and UpStack with respect to the Services. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software. To the extent that there is any irreconcilable conflict between the Service Agreement entered into between UpStack and your Commercial Principal and these Terms, the Service Agreement shall prevail.

In the event that any provision of these Terms is held to be invalid or unenforceable, then that provision will be limited to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect.