Revised August 1, 2022
These Terms of Service (“Terms”) govern your access to and use of Upper Quadrant, Inc.’s (“UpperQuadrant”, “we” or “our”) services, including our various websites, SMS, APIs, email notifications, applications, buttons, groups, walls, widgets (the “Services”), and any information, text, graphics, photos or other materials uploaded, downloaded or appearing on the Services (collectively referred to as “Content”). "you"or “your” as the case may be, refers to any individual who uses the Services or, if the Service is being used on behalf of an entity, then "you" or “your”refers to such entity. Your access to and use of the Services are conditioned on your acceptance of and compliance with these Terms. By accessing or using the Services you agree to be bound by these Terms.
You are responsible for your use of the Services, for any Content you post to the Services, and for any consequences thereof. The Content you submit, post, or display will be able to be viewed by other users of the Services. You should only provide Content that you are comfortable sharing with others and that is acceptable within the parameters your company may set under theseTerms. You may use the Services only if you have a binding contract with Upper Quadrant and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. If you are accepting these Terms and using the Services on behalf of a company, organization, government, or other legal entity, you represent and warrant that you are authorized to do so. You may use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules, and regulations.
As a user of Upper Quadrant’s Services, you are solely responsible for securing other user’s data delivered to you by Upper Quadrant. You represent and warrant that any other user’s data, received from Upper Quadrant, will be protected pursuant to industry best practices. Examples of safeguards include password protection, multi-factor authentication, limited data access, encryption at rest, and IP Address restrictions. You may only use the other user’s data within the agreed upon data use parameters. Furthermore, you agree not to allow any unauthorized third-party access to the data. You are liable for any data breaches or unauthorized uses of other users’ data that you receive from Upper Quadrant. You shall notify Upper Quadrant immediately if you become aware of or suspect a data breach or any unauthorized access to another user’s data.
The Services that Upper Quadrant provides are always evolving and the form and nature of the Services that Upper Quadrant provides may change from time to time without prior notice to you. In addition, Upper Quadrant may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally and may not provide you with prior notice. We also retain the right to create limits on use and storage at our sole discretion at anytime without prior notice to you. Upper Quadrant may offer different versions of the Services that have varying features, functionalities, components, and specifications, may track and compare usage of each version, and has the sole discretion to determine which version is provided to you. The Services may include links to third party websites, which may be targeted to the Content or information on the Services, queries made through the Services, or other information. Upper Quadrant has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites or services. We do not warrant the offerings of any third-party websites or services.
You may provide, on behalf of a retailer(“Retailer”),Upper Quadrant with access to Retailer’s data for specific uses in predefined and preapproved initiatives. Automated access to the Retailer data will be managed within Upper Quadrant’s Cadence application.Retailer will be asked to approve in advance specific uses of its data as prescribed within theUpper Quadrant application. Retailer must authorize the use of its data within Cadence by indicating approval on a project-by-project basis. Retailer may at its sole discretion, at any time and for any reason discontinue sharing of its data for any or all projects.
Upper Quadrant acts as an intermediary in the aggregation of certain data from multiple retailers and other sources. Shared data will not include any Personal Identifiable Information (PII), customer and prospect records that the Retailer retains confidential. Both parties agree that transparency around data usage is paramount. Each party, within its respective control, agrees to the following conditions concerning data use:
You are responsible for safeguarding the password that you use to access the Services and for any activities or actions taken under your password. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account.Upper Quadrant cannot and will not be liable for any loss or damage arising from your failure to comply with the above. You agree to accept responsibility for any and all activities or actions that occur under your account and/or password. Sharing of an account password among multiple users is strictly forbidden and may result in immediate termination of your account.
All Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such Content. We may not monitor or control the Content posted via theServices and we cannot take responsibility for such Content. Any use or reliance on any Content or materials posted via the Services or obtained by you through the Services is at your own risk. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications posted via the Services or endorse any opinions expressed via the Services. You understand that by using the Services, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive. Under no circumstances will Upper Quadrant be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Services or broadcast elsewhere.
You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). You agree that this license includes the right for Upper Quadrant to provide, promote, and improve the Services. Such additional uses by Upper Quadrant, or other companies, organizations or individuals who partner with Upper Quadrant, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services. We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media. You are responsible for your use of the Services, for any Content you provide, and for any consequences thereof, including the use of your Content by other users and your third-party partners. Upper Quadrant will not be responsible or liable for any use of your Content by Upper Quadrant in accordance with these Terms. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any Content that you submit.
Upper Quadrant gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software that is provided to you by Upper Quadrant as part of the Services. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Upper Quadrant, in the manner permitted by these Terms.
All right, title, and interest in and to the Services (excluding Content provided by users) are and will remain the exclusive property of Upper Quadrant and its licensors. The Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. Nothing in the Terms gives you a right to use the Upper Quadrant name or any of the Upper Quadrant trademarks, logos, domain names, and other distinctive brand features. Any feedback, comments, or suggestions you may provide regarding Upper Quadrant, or the Services is entirely voluntary, and we will be free to use such feedback, comments or suggestions as we see fit and without any obligation to you.
We reserve the right at all times(but will not have an obligation) to remove or refuse to distribute any Content on the Services, to suspend or terminate users, and to reclaim usernames without liability to you. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce the Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Upper Quadrant, its users and the public.
You may not do any of the following: (i) access, tamper with, or use non-public areas of theServices, Upper Quadrant’s computer systems, or the technical delivery systems ofUpper Quadrant’ s providers; (ii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (iii) access or search or attempt to accessor search the Services by any means (automated or otherwise) other than through our currently available, published interfaces that are provided byUpper Quadrant (and only pursuant to those terms and conditions), unless you have been specifically allowed to do so in a separate agreement with Upper Quadrant (NOTE: crawling the Services is permissible if done in accordance with the provisions of the robots.txt file, however, scraping the Services without the prior consent of Upper Quadrant, is expressly prohibited); (iv) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Services to send altered, deceptive or false source-identifying information; or (v) interfere with, or disrupt (or attempt todo so) the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Services, or by scripting the creation ofContent in such a manner as to interfere with or create an undue burden on the Services.
In the event that you choose to use the email and/or the SMS features, you represent and warrant that you have a current relationship with each person to whom an email or text message is to be sent. You are solely responsible for ensuring that the email and/or SMS feature(s) are utilized in a manner that complies with local, state, and federal laws, rules and regulations. This includes, but is not limited to, compliance with applicable email and telemarketing laws such as the CAN-SPAMAct and Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, the EU ePrivacy Regulation, and comparable state laws. Moreover, you represent and warrant that each person to whom an email and/or text message is to be sent has specifically granted you permission to do so by whatever technology you choose; and opt-outs are provided pursuant to applicable law, rule or regulation. You are responsible for the content and will be identified as the sender of each email and/or text message sent on your behalf. You acknowledge that you are responsible for obtaining any and all permissions required to use the Software’s email and SMS features.
You agree to abide by this Agreement and all applicable laws and regulations, including but not limited to Title III of the Americans with Disabilities Act (“ADA”) and New York’s state and city levelHuman Rights Act, and California’s Unruh Civil Rights Act and Consumer Privacy Act. You agree not to transfer, use or export the services in violation of any laws or regulations of any government or governmental agency.
Upper Quadrant respects the intellectual property rights of others and expects users of the Services to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If you believe that your Content has been copied in a way that constitutes copyright infringement, please provide us with the following information: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii)identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) your contact information, including your address, telephone number, and an email address; (v) a statement by you 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 the law; and (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
We reserve the right to remove Content alleged to be infringing without prior notice, at our sole discretion, and without liability to you. Our designated copyright agent for notice of alleged copyright infringement appearing on the Services is:
Fullsteam Operations LLC
540 Devall Drive, Suite 301
Auburn, AL 36832
Upper Quadrant may provide core or ancillary parts of the Services to you free of charge. Other core or ancillary parts of the Services may require payment before you can access them. Upper Quadrant may permit you to use the Services to collect funds from other users. To purchase any parts of the Services, to use Upper Quadrant to collect funds, or to engage in any transactions requiring the use of a credit or debit card, you agree that you will be bound by these Commerce Terms, the Terms of Service, and all applicable laws and regulations as of the date of the transaction. If you are an individual representing an entity, you acknowledge that you have the appropriate authority to accept these terms on behalf of that entity.
B. Upper Quadrant as Platform
Upper Quadrant does not create the content integrated with the Services by third parties. We are not responsible or liable for any content provided by a third party and do not warrant it is accurate, complete, error-free, or reliable. Upper Quadrant, has the right, but no obligation, to monitor, edit, or remove any content posted in the Services. Upper Quadrant, does not endorse, sponsor, recommend, or make any guarantees about third parties or their posted content, nor does any reference to products, services, processes, or other information, by trade name, trademark, manufacturer, supplier, or otherwise constitute or imply Upper Quadrant’s endorsement, sponsorship, or recommendation thereof.
Upper Quadrant may develop and maintain websites for you as one of our Services. Upper Quadrant does not represent that the websites we develop and maintain from a creative and operational aspect meet the guidelines of Title III of the Americans with Disabilities Act (“ADA”) or other such laws and regulations. Upon launch of your websites, you are responsible for compliance. We accept no liability for compliance.
You are solely responsible for compliance with applicable PCI-DSS requirements; Upper Quadrant has no obligation to assist with PCI-DSS requirements in any way. Any assistance provided by Upper Quadrant, or by UpperQuadrant’s employees, contractors, agents, representatives or other related persons, at your request, is provided without warranty or liability.
UPPER QUADRANT EXPRESSLY DISCLAIMS ANY WARRANTY. THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. UPPER QUADRANT FURTHER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATED TO ANY CONFIGURATION, REPAIR, UPDATE, INSTALLATION OR OTHER WORK DONE ON YOUR PREMISES BY AN EMPLOYEE, CONTRACTOR, AGENT, OR OTHER THIRD PARTY OF OR UNDER CONTRACT WITH UPPER QUADRANT. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICES IS AND REMAINS WITH YOU.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,UPPER QUADRANT SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXAMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFIT SOR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE,GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY CONDUCT OR CONTENT OFANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY,OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICES; OR (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OFYOUR TRANSMISSIONS OR CONTENT. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF UPPER QUADRANT EXCEED THE GREATER OF ONE HUNDRED U.S.DOLLARS(U.S. $100.00) OR THE AMOUNT, IF ANY, YOU PAID UPPER QUADRANT, IN THE PRIOR SIX MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS,EXCLUSIONS, AND DISCLAIMERS SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT UPPER QUADRANT HAS BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE. THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SOAS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
A. Waiver and Severability
The failure ofUpper Quadrant to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. In the event that any provision of these Terms is held to be invalid or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect.
B. Controlling Law, Jurisdiction, and Venue
The validity, terms, performance and enforcement of these Terms will be governed and construed by its provisions and in accordance with the laws of the State of Delaware and the United States ofAmerica (without regard to conflicts of laws principles). You here by irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the state and federal courts located in the State of Delaware for any action, suit or proceeding arising out of or relating to these Terms and the transactions contemplated hereby. Each party irrevocably waives any objection, including any objection based upon the grounds of forum non-conveniens, which it may now or hereafter have to the bringing of any action or proceeding in such jurisdiction in respect of these Terms. THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, SUIT OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THE TERMS, OBLIGATIONS AND/OR PERFORMANCE OF THESE TERMS.