Last Updated: June 8, 2017
Welcome to the terms of services (the “Terms”) of www.upspirity.com (the “Website”)! Please read these Terms carefully as they set forth the agreement between you, an individual user (“you” or “User”) and Intrepid Movement, LLC and/or its affiliates (“we”, “us” or “our”) regarding your use of the Website, any version of the streaming services, purchased downloads or any other services provided by us through our subscription service, including beta versions or services accessed through any of our affiliates (the “Services”). By registering and/or using the Services, you acknowledge that you have read and understand these Terms and agree to be bound by all of the terms and conditions, in addition to any additional terms and conditions and future modifications (collectively the “Terms”). You also acknowledge that you are over the age of eighteen (18) and that you have the power to enter into a binding contract under applicable law. If at any time you do not agree to these Terms or do not meet the eligibility requirements, please do not complete the registration process or immediately terminate your use of the Services.
2. ENROLLMENT IN THE SERVICES
In exchange for any applicable fees and subject to certain limitations as described herein, you will be granted the right to view, stream and/or download (when applicable) certain Content (as further defined below) that is available via the applicable Services.
For the purpose of these Terms, Content shall include all text, graphics, information, data, software, scripts, ebooks, audio recordings, music or sounds, music clips, audio-visual effects, photographs, all messages or items of information, slogans, domain names and any other elements which are part of the Services, individually or in combination, together with all related intellectual property rights, (collectively, the “Content”).
In order to access the Services, you must create an account (as further detailed in Section 3 below) by completing the registration process and must be connected to the Internet.
3.1 Creation of your Account
To create an Account, you must have an email address and provide true, accurate, current and complete information about yourself and your billing information. You must be authorized to use the Services for which you register, and in particular meet the age criteria. Certain Services may require the creation of a "Username". When selecting your Username, you must ensure that: i) the Username is not already being used by someone else; ii) it meets the requirements of these Terms or the ethical rules which apply on the Internet; and iii) is not insulting, vulgar, obscene, defamatory or in any other way in violation of the rights of others (in particular, without limitation, name rights and image rights). Except if specifically allowed within the Service, you acknowledge that you may not create multiple Accounts and that you will immediately close your additional Account upon our request.
3.2 Accuracy and Use of your Account Data
You agree to supply true, accurate, up-to-date and complete personal information and keep it up-to-date, in accordance with our request in the registration process. You acknowledge and accept that we may take action to check the accuracy of the information you provide.
In the event that you provide any information that is false, inaccurate, outdated or incomplete, or we have reasonable grounds to suspect that such information is false, inaccurate, outdated or incomplete, we have the right to suspend or terminate your Account and prohibit any and all current or future use of the Services (or any portion thereof) by you.
3.3 Stolen Account Information
You are solely responsible for maintaining the confidentiality and security of your Account and any User identifications and passwords. We reserve the right to suspend your access to the Services and change (or require you to change) your Password at any time. Any use of your Account with your Password, and in particular any purchase of Services, is deemed to be carried out by you.
You agree to inform us as quickly as possible of any unauthorized use of your Username, password or other information concerning your Account or of any other security violation concerning or involving the Services which comes to your attention.
4. USE OF SERVICES AND RULES OF CONDUCT
4.1 Use of Services
The Services are intended for your personal, non-commercial use only. Subject to these Terms, we hereby grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable, worldwide, personal license to access and use the Content made available via the Services for your personal, non-commercial purposes, and subject to any further usage restrictions we may indicate on the Services with respect to such Content.
You undertake to comply, at all times during use of the Services, with i) the national and international laws and regulations in force and ii) with these Terms. YOU GUARANTEE THAT YOU WILL NOT USE THE SERVICES FOR UNLAWFUL OR IMMORAL PURPOSES OR FOR PURPOSES CONTRARY TO THE USE OF THE SERVICE.
4.2 Rules of Conduct
You agree not to use the Services for any purpose that is prohibited by these Terms, and that you are responsible for your activity in connection with the Services. Furthermore, you undertake not to directly or indirectly:
- use within the framework of the Services any element or content which would infringe on the intellectual and industrial property rights including patent, trademark or copyrights, right to privacy or publicity and/or image rights and/or any other rights of others;
- create, use, share and/or publish by any means within the framework of the Services any material or content which, we feel, is unlawful, harmful, abusive, harassing, threatening, malicious, defamatory, libelous, untruthful, pornographic, pedophilic, obscene, vulgar, racist, xenophobic, liable to incite hatred, sexually explicit, violent, contrary to morality; encourages criminal conduct or would give rise to civil liability, or otherwise violates any applicable local, state, national, or international law or is in any other way unacceptable;
- create, use, share and/or publish by any means within the framework of the Services any material or content which would constitute a breach of an obligation of confidentiality or which would incite the committing of an unlawful act (in particular, infringing others' intellectual property, piracy, hacking or circulation of counterfeit software);
- conduct activities aimed at accessing elements or functions of the Services whose use has not been authorized by us;
- access the Services by means other than those provided by us;
- maintain any link from another website to the Services without our prior written authorization;
- arrange, modify, translate, adapt, reproduce, index, copy and/or extract any information, software, product or other element or part of the Content by any means without our prior written authorization;
- modify, distort, block, abnormally burden, disrupt, slow down and/or hinder the normal functioning of all or part of the Services, or their accessibility to other users, or the functioning of the partner networks of the Services, or attempt to do any of the above;
- transmit or propagate any virus, Trojan, worm, bomb, corrupted file and/or similar destructive device or corrupted data within the framework of the Services, and/or organize, participate in or be involved in any way in an attack on our servers and/or the Services and/or those of its service providers and partners;
- create, use and/or circulate "auto" or "macro" computer programs or other cheat programs or software applications, and/or use the Services via a mirror site;
- "bot", "hack", ”mod”, “trainer”, or "crack", or otherwise attempt to circumvent any access control, copyright protection or license-enforcement mechanisms associated with or related to the Services;
- create or supply other means enabling use of the Services by other persons, for example server emulators;
- harass other users of the Services, send them unsolicited messages for commercial prospecting purposes, use the Services for purposes of surveys, competitions, pyramid selling or similar operations, or for sending mass emails, spam or any unsolicited advertising or promotional items, for commercial purposes or otherwise;
- use incorrect information, use another user's Account, assume another person's identity or present false credentials in order to disguise the origin of any content transmitted through the Services;
- use any means not expressly permitted by us to collect or intercept data exchanged by other users within the framework of the Services, or the names/usernames and/or passwords of any other user;
- attempt to obtain a password, information concerning an Account or other information of a private nature from any other user of the Services, and/or sell, rent out, share, lend and/or in any other way transfer to any outside party your Account and/or the means of accessing it and/or in any other way allow any outside party to benefit from your Account;
- make inappropriate use of the help service or send untruthful reports to members of our personnel;
- access, use, download from the Services or otherwise reproduce or supply to anyone (free of charge or in return for payment) any directory of users of the Services or any other information concerning users or use of the Services;
- refuse to obey the instructions of any of our representative or any requirements, procedures, policies, or regulations of networks connected to the Services; and
- impersonate any person or entity, including, but not limited to one of our representatives, or falsely state or otherwise misrepresent your affiliation with a person or entity.
You shall not (directly or indirectly): (i) decipher, arrange, modify, decompile, disassemble, reverse engineer, translate, adapt, reproduce, distribute, disseminate or transfer any information, any software, any product and in general any element of the Services or Content except as expressly permitted by these Terms. Re-posting or automated use or large-volume use of the Services or Content or transfer of any Services or Content to any other computer or mobile device are expressly prohibited except as expressly permitted by these Terms.
5. INTELLECTUAL PROPERTY RIGHTS
Only you may access the Services using your Username and password. The Content available through the Services and the Services are the property of us, our affiliates, and our licensors and are protected by copyright and other intellectual property laws and rights. You will not obtain any ownership interest in the Content or the Services through these Terms or otherwise. All rights to the Content not expressly granted in these Terms are reserved to their respective copyright owners. You agree not to i) copy, record, reproduce, redistribute, retransmit, republish, disseminate, sell, rent, lease, broadcast, publicly perform, display, sublicense or circulate the Content available through the Service to any third party; ii) exploit any such Content for commercial purposes without our prior written consent; or iii) share your password with any third party. You may not make any unauthorized copies of the Content obtained through the Services, and may only make such copies as are reasonably necessary for your personal, non-commercial use. You further agree to indemnify and hold us harmless for your failure to comply with this section.
We, our affiliates and our licensors retain exclusive ownership of the Content, the Services and all intellectual property rights associated therewith. Except as expressly provided herein, you are not granted any rights or license to patents, copyrights, trade secrets or trademarks with respect to the Services or the Content available through the Services. We, our affiliates and our licensors reserve all rights not expressly granted hereunder. You agree to promptly notify us in writing upon your discovery of any unauthorized use or infringement of the Services or the Content available through the Services, or any patent, copyright, trade secret, trademarks or other intellectual property rights of ours, our affiliates or our licensors.
We make no representations that the Services, Materials or products described or offered on the Services are appropriate or available for use in jurisdictions outside the United States, or that these Terms comply with the laws of any other country. Visitors who use the Services and reside outside the United States do so on their own initiative and are responsible for compliance with all laws, if and to the extent local laws are applicable. You agree that you will not access the Services from any territory where its contents are illegal, and that you are responsible for compliance with applicable local laws.
6. COPYRIGHT INFRINGEMENT
We respect the intellectual property rights of copyright owners and as such, we adhere to the following notice and takedown policy. If you believe any of the Content accessible through our Services infringes your intellectual property rights, please submit a notification alleging such infringement containing the following information to the Designated Agent listed below:
- Provide evidence of the person authorized to act on behalf of the owner of the copyright;
- Provide sufficient contact information about the notifier including name, address, telephone number and email address, so that we may contact you;
- You must identify in sufficient detail the copyrighted work claimed to have been infringed, including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that we are capable of finding and verifying its existence;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you, made under penalty of perjury, that the provided information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf.
- A physical or electronic signature of that has been allegedly infringed.
Please send your infringement notice to our Designated Agent via email to the following email address: email@example.com.
Please allow up to a week for an email response. Note that emailing your complaint to other parties such as our Internet Service Provider will not expedite your request and may result in a delayed response due to the complaint not being filed properly.
Please be aware that you will be liable for damages (including costs and attorneys’ fees) if you misrepresent information listed on our website that is infringing on your copyrights.
7. PAYMENTS AND BILLING
For the Pay As You Go option and the Memberships (as further detailed below), the current fee amounts and any materially different terms from those described to you in these Terms will be disclosed to you at sign-up or in another communication made available to you. When you sign-up for a Membership or make a purchase under the Pay As You Go option (in both cases such purchase, a “Transaction”), we may ask you to provide additional information relevant to your Transaction, including, without limitation, your payment method information (e.g. your credit card number or other available method of payment information), expiration date of your payment method and your billing address (“Payment Information”). You hereby represent and warrant that you have the legal right to use all payment methods represented by such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so that we can charge your payment method for the type of Transaction that you have selected. Please note that you may need to provide additional information to verify your identity before completing your Transaction (such information shall be included in the definition of Payment Information).
Pay As You Go: if you elect the Pay As You Go option, your Payment Information will be charged the fees (ranging from $0.99 to $29.99) and any applicable taxes and service fees in connection with your use of your Account, when you make a purchase of Content from the library. With this option, you will not be charged recurring fees and your Payment Information will be kept on file for when you use your Account and make a purchase of Content from the library.
6 Month Membership: if you elect the 6 Month Membership, you agree that you will be charged $9.99 plus any applicable taxes and services fees, at the beginning of the paying portion of your membership and each month thereafter, for a period of six months. In such case, we will automatically charge you each month, on the calendar day corresponding to the commencement of the paying portion of your Membership, using the Payment Information you have provided, for a period of six months, unless your Membership is cancelled or otherwise revoked prior to the end of the six months.
3 Month Membership: if you elect the 3 Month Membership, you agree that you will be charged $14.99 plus any applicable taxes and services fees, at the beginning of the paying portion of your membership and each month thereafter, for a period of three months. In such case, we will automatically charge you each month, on the calendar day corresponding to the commencement of the paying portion of your Membership, using the Payment Information you have provided, for a period of three months, unless your Membership is cancelled or otherwise revoked prior to the end of the three months.
All-Access Unlimited Membership: if you elect the All-Access Unlimited Membership, you agree that you will be charged $39.99 plus any applicable taxes and services fees, at the beginning of the paying portion of your membership and each month thereafter. In such case, we will automatically charge you each month, on the calendar day corresponding to the commencement of the paying portion of your Membership, using the Payment Information you have provided, unless your Membership is cancelled or otherwise revoked.
By electing to purchase a monthly Membership, signing up for the Services and agreeing to these Terms, you acknowledge that your Membership is subject to recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Membership by you or by us. We may also periodically authorize your payment method in anticipation of applicable fees or related charges.
We reserve the right to change the pricing of the Memberships or of the Pay As You Go fees at any time. In the event of a price change that affects you, we will post the new pricing on the Website, update these Terms and attempt to notify you in advance by sending an email to the email address you have provided at the time of signing up. If you do not wish to accept a price change, you may cancel your Account. If there are any discrepancies in billing, you hereby waive your right to dispute such discrepancies if you do not notify the Company within 30 days after they first appear on an account statement. YOU ARE RESPONSIBLE FOR ALL INTERNET ACCESS CHARGES. PLEASE CHECK WITH YOUR INTERNET PROVIDER FOR INFORMATION ON POSSIBLE INTERNET DATA USAGE CHARGES.
7.3 No Refunds
All fees paid and charges made prior to cancellation or termination of your Account are non-refundable. If you have a recurring monthly Membership, all Membership Fees previously paid, including the amount paid for the month in which the cancellation occurs, are non-refundable. Even if you cancel your Membership during a monthly Membership period, you will not receive a refund for any portion of the fees for the remainder of that month.
You can cancel your membership at any time by contacting us by telephone at 1-855-487-6892 and following the steps over the phone or speaking to one of our customer service representatives directly, or by logging into your Account and clicking “Cancel Account”. If you cancel your Membership, the cancellation will go into effect at the end of the then-current month. You will have continued access to your Account for the remainder of your paid monthly Membership period, but YOU WILL NOT RECEIVE A REFUND OF ANY FEES PAID. You must cancel your Membership before it renews for the next month to avoid paying the recurring Membership Fees for the next month. After cancellation of your Membership, you will continue to owe any accrued amounts due under these Terms and not yet paid. You acknowledge and agree that cancellation of your Membership is your sole recourse if you have any dissatisfaction, issue or concern related to the Website, its Content, software, the Services or these Terms, including fees, applicable taxes, or billing methods.
If, at any time, we feel that you have violated these Terms, we may suspend or terminate your access to the Services effective immediately, which may result in the loss and destruction of all information associated with your Account. All fees paid hereunder are non-refundable.
7.6 Late Payments
Your Account may be deactivated without notice to you if payment is past due, regardless of the dollar amount. You agree to pay any outstanding balance in full within thirty (30) days of cancellation or termination of your Membership.
8. TECHNOLOGICAL LIMITATIONS AND MODIFICATIONS TO THE SERVICES
We will make reasonable efforts to keep your Account and the Services operational. However, certain technical difficulties or maintenance may, from time to time, result in the temporary interruptions to the Services. We will make reasonable efforts to notify you of any anticipated downtime to the Services.
The quality of the display of the Content may vary from device to device, and may be affected by a variety of factors, including your location and the speed of your Internet connection. The time it takes to begin viewing Content will also vary based on a number of factors, including your location, available bandwidth at the time and the configuration of your device.
We reserve the right to modify or discontinue, temporarily or permanently, certain functions or features of the Services, with or without notice. We also reserve the right to change or remove Content at any time.
We shall not be liable to you or any third party for any of the direct or indirect consequences of any modification, malfunction, suspension, discontinuance of or interruption to or of any of the Services.
9. THIRD PARTY WEBSITES, PRODUCTS AND SERVICES
We may highlight certain third party products and/or services by inserting promotional links, advertising banners or any other advertising and promotional element, and may also carry out cross-marketing operations with any partner of our choice. Links on the Services to third party websites and applications are provided only as a convenience to you. If you use these links, you will leave the Website and our Services. Your dealings with third parties through links to such third party websites or applications are solely between you and such third parties. We do not control or endorse any such third party websites. You agree that we will not be responsible or liable for any content, goods, or services provided on or through these outside websites or applications or for your use or inability to use such websites or applications.
10. DISCLAIMER OF WARRANTY
THE SERVICES ARE PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS. WE, OUR PARENT, SUBSIDIARIES, OTHER AFFILIATED COMPANIES AND OUR LICENSORS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND OTHER REPRESENTATIVES WORLDWIDE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES AND NON-INFRINGEMENT.
WE DO NOT GUARANTEE AND MAKE NO COMMITMENT OR WARRANTY CONCERNING THE USE OF THE SERVICES OR THE RESULTS OF THE USE OF THE SERVICES IN TERMS OF CONFORMITY, ACCURACY, COMPLETENESS, RELIABILITY, SECURITY, AVAILABILITY ETC. WITHIN THE LIMITS AUTHORIZED BY APPLICABLE LAW, WE DO NOT OFFER ANY GUARANTEE CONCERNING THE MARKET VALUE OF THE SERVICES, YOUR SATISFACTION OR THE SUITABILITY OF THE SERVICES FOR A PARTICULAR USE. IN ADDITION, WE OFFER NO GUARANTEE THAT THE SERVICES, INCLUDING THE SERVERS AND SOFTWARE NECESSARY FOR THEIR OPERATION WILL BE SECURE, FREE OF INTERRUPTION OR ERRORS, BUGS, VIRUSES OR HARMFUL ELEMENTS, OR THAT ERRORS, BUGS, VIRUSES OR HARMFUL ELEMENTS WILL BE CORRECTED.
11.LIMITATION OF LIABILITY
THE ENTIRE RISK ARISING OUT OF THE USE AND/OR PERFORMANCE OF THE SERVICES REMAINS WITH YOU. IN NO EVENT SHALL WE, OUR PARENTS, MEMBERS, LICENSORS, SUBSIDIARIES, PARTNERS, AFFILIATES, SERVICE PROVIDERS, INVESTORS, DISTRIBUTORS OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES (COLLECTIVELY THE “PROTECTED PARTIES”) BE LIABLE FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR, INDIRECT, SPECIAL, PUNITIVE, ACCIDENTAL, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES OF ANY KIND, FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION) OR FOR ANY DIRECT DAMAGES IN EXCESS OF THE GREATER OF I) THE AMOUNT PAID FOR THE SERVICES DURING THE IMMEDIATELY PREVIOUS THREE (3) MONTHS PERIOD OR II) $300.00. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU, BUT THEY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
You agree to defend, indemnify and hold harmless us, our parent company, members, licensors, subsidiaries, partners, affiliates, service providers, investors, distributors or any of their officers, directors, employees, agents or affiliates, from and against all liabilities, claims, damages, costs and expenses, including reasonable attorneys’ fees, that arise from or relate to your use or misuse of, or access to, the Services, Content, or otherwise from your Account, violation of these Terms, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting available defenses.
13. MODIFICATION TO THESE TERMS
We reserve the right, in our sole discretion, to modify, add or delete any of the clauses of these Terms by posting a notice on the website or by sending you notice through the Services. If you do not agree to the changes made to these Terms, you may cancel your Account. You undertake to check any modifications regularly and to comply with them fully. Any use of the Services subsequent to updates and/or modifications implies acceptance of the Terms thus updated and modified.
15. APPLICABLE LAW; JURISDICTION; DISPUTE RESOLUTION
15.1 Application Law and Jurisdiction
These Terms and all claims arising from or related to your use of the Services are governed by and construed in accordance with the laws of the State of California, except California's conflict of law rules. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, if applicable.
With respect to any disputes or claims not subject to arbitration (as set forth below), you agree to exclusive jurisdiction in the state and federal courts in San Francisco, California. Notwithstanding any other provision of these Terms, the Company may seek injunctive or other equitable relief from any court of competent jurisdiction.
15.2 Dispute Resolution
Before initiating any arbitration or proceeding, we may, together, agree to first attempt to negotiate any dispute, controversy or claim arising from these Terms or related to the Services (“Claim”) informally for at least thirty (30) days. If the Claim is not resolved we each agree to resolve such disputes through an individual binding arbitration or an individual action in small claims court. Class arbitrations and class actions are not permitted, and your Claim may not be consolidated with any other person’s claim. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that we are each waiving the right to a trial by jury or to participate in a class action. This provision shall survive termination of these Terms, your Account or your access to the Services.
Before you commence an arbitration or file a small claims court action with respect to your Claim, you must first send us a written notice of your claim (“Notice”). The Notice must (1) be sent by certified mail; (2) be addressed to: Legal Department; (3) describe the nature of your Claim; and (4) specify the damages or other relief you seek. If we together do not then resolve the Claim within 30 days after we receive your Notice, either you or we may commence an arbitration or file a small claims court action to resolve the Claim.
Any such arbitration shall be administered by the American Arbitration Association and be conducted in accordance with its Commercial Arbitration Rules, including the Consumer-Related Disputes Supplementary Procedures, if applicable (the “Rules”). Contact information for the American Arbitration Association, as well as copies of the Rules and applicable forms, are available at http://www.adr.org. In circumstances in which the Rules provide for an in-person hearing, such hearing will, at your request, take place in the U.S. county (or parish) of your residence, or otherwise in San Francisco, California.
16.1 Titles and Headings
The headings of the clauses are intended solely to facilitate reading and understanding of these Terms and may in no case allow any assumption to be made as to the content of the clauses and the way in which they may be interpreted.
If any provision of these Terms is, for any reason, held to be invalid or unenforceable, that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
16.3 No Waiver
Our failure to exercise or enforce any right or provision contained in these Terms, will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by us.
16.4 Entire Agreement
16.5 Force Majeure
Subject to applicable law, we may not be held liable for circumstances beyond our reasonable control.
We make no representation that the Content contained on the Services is appropriate or available for use in jurisdictions outside the United States, or that these Terms comply with the laws of any country outside the U.S. Visitors who use the Services and reside outside of the U.S. do so on their own initiative and are responsible for compliance with all laws, if and to the extent local laws are applicable. You agree that you will not access the Services from any territory where its contents are illegal, and that you and not us, are responsible for compliance with applicable local laws.