UpStream Networks – Terms of Service
Posted/Revised: August 25, 2010
READ THIS AGREEMENT CAREFULLY BEFORE USING ANY UPSTREAM NETWORKS SERVICE. THIS IS A LEGALLY BINDING AGREEMENT BETWEEN UPSTREAM NETWORKS AND YOU, INCLUDING ANY UPSTREAM NETWORKS CUSTOMER, USER, OR WEBSITE VISITOR, (collectively referred to herein as "Customer").
These Terms of Service form part of an agreement (this/the "Agreement") between ServePath, LLC, a Delaware limited liability company, doing business under the name UpStream Networks ("UpStream Networks") and Customer. This Agreement governs provision of UpStream Networks' services (the "Service") and is effective as of the moment Customer indicates agreement at the UpStream Networks website, as of the moment the two parties sign a paper version, or as of the moment Customer uses any UpStream Networks website or element of the Service (whichever comes first).
1. The Service.
- UpStream Networks will provide the Service pursuant to this Agreement.
- Customer agrees that the Service is for business use and not for consumers. Customer hereby affirms:
- that it will use the Service for business purposes and not for personal, family, or household purposes; and
- that it is not an individual less than 18 years old.
- If agreed between the parties, the Service may include professional services, including services provided with the support or assistance of an UpStream Networks contractor ("In-House Consulting"). UpStream Networks may also refer Customer to a third party professional services provider ("Third Party Consulting").
- In-House Consulting is subject to the same terms and conditions as other elements of the Service, including without limitation the disclaimers and limitations of liability in Section 8 below. In-House Consulting is also subject to the terms and conditions of any statement of work executed by authorized representatives of both parties. Fees for In-House Consulting are in addition to Service fees required pursuant to Subsection 2(a) below. Customer will pay for In-House Consulting at UpStream Networks' then-standard rates, unless the relevant statement of work specifically provides for a different payment structure.
- Third Party Consulting is not part of the Service, and UpStream Networks will have no responsibility or liability for Third Party Consulting, even if UpStream Networks recommends the Third Party Consulting provider and/or the Third Party Consulting is related to the Service or to Customer's ability to receive or exploit the Service. In the event that UpStream Networks is held responsible or liable for Third Party Consulting, despite the provisions of this Subsection 1(c)(ii), such responsibility or liability will be subject to the disclaimers and limitations of liability in Section 8 below.
- Customer will pay UpStream Networks' standard fees for the Service, including fees required pursuant to one of the following plans, as reflected in any UpStream Networks quote accepted by Customer and any other ordering records maintained by UpStream Networks (collectively, Customer's "Signup").
- Monthly Payment Plan: Customer pays monthly.
- Prepayment Plan: Customer pays annually or on such other periodic basis, longer than one month, as is defined in Customer's Signup (Customer's "Prepayment Period"). Customer may switch to a monthly payment plan or change the duration of its Prepayment Period by giving UpStream Networks written notice of such intent 30 or more days before the end of the current Prepayment Period. Absent such notice, Customer's Prepayment Period will renew automatically for a period of the same duration, and UpStream Networks may charge Customer for the new Prepayment Period upon completion of the old one. Subject to the requirements of any Commitment Period (as defined in Subsection 2(b) below), in the event that Customer terminates this Agreement before the end of its Prepayment Period, Customer will receive a refund for the remainder of the Prepayment Period, minus an adjustment equal to: (A) the difference between the amount Customer has paid and the amount it would have paid pursuant to a Monthly Plan, plus (B) any set-up fees Customer would have paid pursuant to a Monthly Plan. (For purposes of such calculations, Monthly Plan prices are set at UpStream Networks' then-standard prices.)
- If Customer's Signup designates an annual or other commitment period (a "Commitment Period"), termination of this Agreement will not relieve Customer of its obligation to pay all fees due for such Commitment Period, and no such fees will be refundable pursuant to Subsection 2(a)(ii) above. All fees for a Commitment Period will fall due 5 business days after termination of this Agreement for any reason. A completed Commitment Period may be renewed by written agreement of by both parties.
- Customer will pay for the Service in advance. Customer will pay overage fees in the event that it exceeds the data transfer limit listed in its Signup (its "Transfer Package") during any month, as calculated by UpStream Networks pursuant to its standard policies. Customer may increase ("Upgrade") or decrease ("Downgrade") its monthly Transfer Package through the UpStream Networks customer portal, www.my.upstreamnetworks.com (the "Customer Portal"). Additional charges will go into effect upon Upgrade, and UpStream Networks may charge a prorated increase in Service fees for the month during which the Upgrade occurred. For a Downgrade, UpStream Networks will issue Customer a credit against its next monthly charge, equivalent to a prorated decrease in Service fees for the month during which the Downgrade occurred.
- Customer will pay any set-up or other fees required pursuant to Upstream Networks' standard policies. Customer will make all payments in U.S. dollars. Upstream Networks is not required to issue refunds or credits except as specified in this Agreement, and no credit will entitle Customer to a refund.
- Customer will notify UpStream Networks of any billing dispute, providing details regarding the nature of the dispute and the amount, within 15 days of the date on the invoice in question, or waive such dispute. Any payment not received when due will, at UpStream Networks' option, bear interest at a rate of 1.5% per month from the date due until paid, to compensate Upstream Networks for the time-value of the unpaid fees. In addition, UpStream Networks may charge a late fee of $19.99 per week, as liquidated damages, starting on the first day after any payment is due. Such liquidated damages compensate UpStream Networks for administrative expenses related to unpaid fees.
- Overage fees apply regardless of the cause of the Service usage or overage, even if caused by hacker activity or other third party actions. UpStream Networks is not required to issue or provide a roll-over of any Transfer Package to a future month, a credit, or any other refund in the event that Customer under-utilizes its Transfer Package or any other element of the Service.
- Customer will maintain a valid credit card on file at all times. UpStream Networks may charge such card for Service fees or other fees on the first business day prior to any payment due-date. Customer will update credit card information as necessary in the Customer Portal. If any charge attempt is denied, UpStream Networks may interrupt Service without advanced notice but will make reasonable efforts to provide such notice.
- This Agreement will continue until terminated by either party pursuant to the procedures set forth in this Section 3.
- Customer may terminate this Agreement on 30 days' advanced written notice: (i) for convenience, unless Customer is subject to a Commitment Period pursuant to Subsection 2(b) above; or (ii) for material breach, provided the notice of termination specifies the nature of the breach and provided termination will not be effective if UpStream Networks cures the breach during the 30-day notice period. Customer will provide notice of termination through the online cancellation form in the Customer Portal. If Customer is terminating pursuant to the SLA (as authorized in Part I.B thereof): (1) such notice will state: "termination per SLA"; and (2) notwithstanding the foregoing, such notice need not be given in advance or provide opportunity to cure. UpStream Networks is not required to refund any payments in the event of termination by Customer except as specifically stated in Subsection 2(a)(ii) above.
- UpStream Networks may terminate this Agreement for convenience as of the end of Customer's Commitment Period, or at any time in the absence of a Commitment Period. UpStream Networks will provide 30 days' advanced written notice of any termination for convenience. Upon such termination, UpStream Networks will refund any amounts paid pursuant to a Prepayment Plan for Service not yet provided.
- In the event of any material breach of this Agreement, including without limitation any breach of the provisions of the AUP or of the payment obligations set forth in Section 2, UpStream Networks may terminate the Service, any portion thereof, or this Agreement, without advanced notice. UpStream Networks is not required to refund any fees paid or prepaid after such termination.
- Customer represents that it has read the AUP, and Customer will adhere to its requirements.
- Without limiting the generality of the foregoing, Customer will not allow the Service or UpStream Networks equipment to be used for activities prohibited by the AUP. Third party violations of the AUP using Customer's Service, including any IP addresses, points of access to the Internet, systems, software, or equipment assigned to Customer, will be considered violations by Customer.
- Notwithstanding any provision to the contrary in this Agreement, and without limiting any of UpStream Networks' rights or remedies, UpStream Networks may suspend Service in whole or in part in the event that UpStream Networks reasonably suspects an AUP violation. Reasonable suspicion pursuant to the preceding sentence includes, without limitation, a third party notice or claim that Customer's use of the Service infringes on third party rights. UpStream Networks will make reasonable efforts to notify Customer before any such suspension, unless the AUP violation calls for immediate action to prevent injury or liability, in UpStream Networks' opinion and at its sole discretion. Suspension pursuant to this Subsection 4(a)(ii) may continue so long as UpStream Networks reasonably suspects an AUP violation. UpStream Networks is not liable for any Service suspension authorized by this Subsection 4(a)(ii), or for any related loss, even if the suspected AUP violation did not occur.
- UpStream Networks has no obligation to monitor the Service for AUP violations or for other illegal or improper conduct but may do so and may disclose information regarding use of the Service for any reason, including: to satisfy laws, regulations, or governmental, legal, or law-enforcement requests; to operate the Service properly; and to protect itself and its customers. UpStream Networks may grant law enforcement agencies access to its equipment, including equipment used to provide the Service to Customer.
- UpStream Networks will not be liable for Service interruptions or any other Service failures except as specifically set forth in the SLA and in this Section 5. In the event that Customer is dissatisfied with the Service, Customer's sole remedies are those listed in the SLA and in this Section 5, or termination of this Agreement if authorized pursuant to Section 3 above. Remedies listed in the SLA do not apply to any Service interruption authorized pursuant to Section 6 or any other provision of this Agreement, and UpStream Networks will not be liable for any such interruption.
- The SLA does not apply to any feature of the Service not specifically identified in the SLA, or to any feature UpStream Networks identifies as "beta." All Service features, whether or not addressed in the SLA, are provided pursuant to the provisions of Section 8 below and the other terms and conditions of this Agreement.
- UpStream Networks may interrupt Service to perform maintenance on UpStream Networks equipment or to address and/or mitigate the effects of security breaches, virus attacks, denial of service attacks, and other intentional interferences by third parties. UpStream Networks will exercise reasonable efforts to inform Customer before interrupting Service and to repair the Service promptly.
- Customer is responsible for maintaining security, for maintaining patches and disaster recovery systems, and for maintaining backups, except to the extent UpStream Networks specifically accepts such responsibility by listing such service features in Customer's Signup (subject to the limitations of liability in Section 8 and elsewhere in this Agreement). Customer will promptly report any Service failure to UpStream Networks via the online ticketing system in the Customer Portal. UpStream Networks is not responsible for providing physical access to or copies of software, data, or content stored on UpStream Networks' equipment under any circumstances and is not required to provide network access (i) after any termination or suspension of Customer's Service or (ii) in the event of hardware failure, abuse by hackers or other third parties, improper administration by Customer, or other interruption of network access.
- UpStream Networks is not required to reimburse any expenses Customer incurs for technology diagnosis or repair, including without limitation expenses for outside consultants.
- Customer will employ reasonable security precautions in its use of the Service, including without limitation encryption of social security numbers, medical records, and information of similar sensitivity belonging to Customer or to its customers or users.
- Customer will not use Confidential Information (as defined below) for any purpose other than to facilitate the Service. Except as specifically authorized in writing in advance by UpStream Networks, Customer will not disclose Confidential Information to any third party, and will prevent any such disclosure of Confidential Information in Customer's possession or control. Without limiting the generality of the foregoing, Customer will take reasonable precautions to protect Confidential Information and will not disclose Confidential Information to any of its employees or contractors who do not need to know. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority; provided Customer gives UpStream Networks advanced notice reasonably sufficient to allow UpStream Networks to seek a protective order or otherwise to contest such required disclosure, and reasonably cooperates in such effort. Customer will promptly notify UpStream Networks in writing of any misuse or misappropriation of Confidential Information that comes to Customer"s attention and will cooperate with UpStream Networks in investigating any such misappropriation and in mitigating any damages caused. Upon termination of this Agreement or upon UpStream Networks' written request, Customer will return all Confidential Information to UpStream Networks and certify, in writing, the destruction of any copies thereof.
- "Confidential Information" refers to any information UpStream Networks provides to Customer in any form and marks "Confidential," and any information UpStream Networks discloses orally and identifies as "Confidential" on or before disclosure. However, Confidential Information does not include information that: (A) is in Customer's possession at the time of original disclosure by UpStream Networks; (B) is independently developed by Customer without use of or reference to information provided by UpStream Networks; or (C) becomes known publicly, before or after disclosure, other than as a result of Customer's improper action or inaction.
- Customer agrees that breach of the provisions of this Subsection 7(c) might cause UpStream Networks irreparable injury for which monetary relief would not provide adequate compensation, and that in addition to any other remedies available, UpStream Networks will be entitled to preliminary, temporary, and/or permanent injunctive relief against such breach or threatened breach, without the necessity of proving actual damages.
- UPSTREAM NETWORKS MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. UpStream Networks does not warrant that the Service will be uninterrupted, error-free, or free from viruses or other harmful components. The Service is provided with no warranties regarding security, reliability, protection from attacks, or data integrity. Except to the extent specifically provided in the SLA, THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. No communication between Customer and UpStream Networks will create a warranty or in any way alter or restrict any disclaimer of warranty or limitation of liability set forth in this Section 8 or elsewhere in this Agreement. As used in the previous sentence, "communications" include, without limitation, marketing materials and representations of salespeople, advice provided by UpStream Networks or any of its representatives, quotes, Customer's Signup, and any work order or other ordering document.
- UPSTREAM NETWORKS WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR MULTIPLE DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. UPSTREAM NETWORKS' MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER DURING THE 12 MONTHS PRECEDING THE INJURY GIVING RISE TO THE CLAIM.
- Except to the extent specifically provided in Section 5 above, and except to the extent that applicable law specifically forbids such limitation of liability, UPSTREAM NETWORKS WILL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM ANY OF THE FOLLOWING OR FROM ANY UPSTREAM NETWORKS EFFORTS TO ADDRESS OR MITIGATE ANY OF THE FOLLOWING: (i) SECURITY BREACHES, INCLUDING WITHOUT LIMITATION EAVESDROPPING, THIRD PARTY ACCESS TO CUSTOMER DATA OR TO ASSIGNED COMPUTERS, THIRD PARTY ACCESS TO OR MISUSE OF PASSWORDS PROVIDED TO UPSTREAM NETWORKS, AND INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (ii) RELEASE OR EXPOSURE, FOR ANY OTHER REASON, OF PERSONALLY IDENTIFIABLE INFORMATION OR OTHER PRIVATE DATA, INCLUDING DATA BELONGING TO CUSTOMER"S OWN CUSTOMERS AND OTHER USERS; (iii) DENIAL OF SERVICE ATTACKS, VIRUSES, WORMS, AND OTHER INTENTIONAL INTERFERENCE BY THIRD PARTIES, INCLUDING WITHOUT LIMITATION BY OTHER UPSTREAM NETWORKS CUSTOMERS; (iv) LOSS OF DATA OR LOSS OF ACCESS TO DATA; (v) ACTIONS OF THIRD PARTIES, INCLUDING WITHOUT LIMITATION OTHER UPSTREAM NETWORKS CUSTOMERS AND THIRD PARTY CONSULTING PROVIDERS; (vi) ACTIONS OF UPSTREAM NETWORKS EMPLOYEES, AGENTS, OR CONTRACTORS ACTING OUTSIDE THE SCOPE OF THEIR DUTIES; (vii) MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR OTHER FAILURES OF PERFORMANCE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ACCIDENTAL DISCONNECTION AND TERMINATION OF SERVICE; AND (viii) THE ACCURACY, COMPLETENESS, AND USEFULNESS OF THE SERVICE. THE PROVISIONS OF THIS SUBSECTION 8(c) APPLY, WITHOUT LIMITATION, EVEN IF CUSTOMER PURCHASES SERVICE FEATURES ADDRESSING SECURITY, DATA INTEGRITY, DATA BACKUP, ATTACK PROTECTION, VIRUSES, SPAM, MONITORING, OR SYSTEM INTEGRITY. UpStream Networks does not control and has not thoroughly reviewed all the websites run by UpStream Networks' customers or linked to UpStream Networks' website. With the exception of its own website, UpStream Networks is not responsible or liable for the content or practices of any website, including without limitation websites linked to UpStream Networks' website and websites hosted by UpStream Networks but run by its customers.
- THE LIABILITIES LIMITED BY THIS SECTION 8 INCLUDE, WITHOUT LIMITATION, LIABILITY FOR NEGLIGENCE. UpStream Networks' limitations and exclusions of liability and disclaimers of warranty, set forth in this Section 8 and elsewhere in this Agreement, (collectively, the "Limitations") apply equally to UpStream Networks' officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies. Customer acknowledges and agrees that UpStream Networks has set its prices and entered into this Agreement in reliance upon the Limitations, and that the Limitations form an essential basis of the bargain between UpStream Networks and Customer. The Limitations survive and apply even if Customer's remedies provided in this Agreement are found to have failed of their essential purpose.
- Title and intellectual property rights to the Service and all components thereof are owned by UpStream Networks and its licensors and suppliers. All hardware and Internet protocol addresses provided by UpStream Networks are licensed to Customer temporarily and remain UpStream Networks' sole and exclusive property. This Agreement does not grant Customer a license to any software used to provide the Service or associated with the Service (collectively, "Software"), or to any other software, by implication, by estoppel, or otherwise. Without limiting the generality of the foregoing, Customer will not reproduce, reverse engineer, decompile, or disassemble the Software. The logos, service marks, and trademarks (collectively, "Trademarks") displayed on UpStream Networks' website and through the Service, whether or not registered, belong to UpStream Networks and its licensors and suppliers. Neither this Agreement nor any UpStream Networks website grants a license to any Trademark, by implication, by estoppel, or otherwise. Nothing in this Agreement transfers to UpStream Networks any copyright in, trademark on, or other ownership interest in any data or content of Customer. However, UpStream Networks may include Customer's name in any list of customers used for marketing or other purposes.
- Customer is responsible for maintaining the confidentiality of its usernames and passwords, and Customer will not transfer or sell to any third party such usernames or passwords, or Customer's access to the Service.
- UpStream Networks is not obligated to sell Customer any Service feature not listed in Customer's Signup, or to provide more Service than required by such Signup.
- During the term of this Agreement and for 180 days thereafter, Customer will not encourage or solicit any UpStream Networks employee or independent contractor to leave UpStream Networks' employ, or otherwise interfere with UpStream Networks' employment relationships.
- The parties agree that the fees listed as liquidated damages in Subsection 2(e) and elsewhere in this Agreement do not constitute penalties and are reasonable in light of the harm that will be caused by breach, the difficulties of proof of loss, and the inconvenience and infeasibility of otherwise obtaining an adequate remedy. No remedy of UpStream Networks provided in this Agreement for late payment, declined credit card charges, or other breaches will limit any other right or remedy of UpStream Networks at law or in equity.
- All written communications to Customer will be deemed delivered if sent to the contact points provided to UpStream Networks at the time of order, or to such other contact points as Customer provides in writing. Customer will include a valid e-mail address with such contact points. All written communications to UpStream Networks and all fees will be mailed to 360 Spear St., Suite 200, San Francisco, CA 94105, unless UpStream Networks notifies Customer in writing of alternate contact information, except to the extent that this Agreement provides that such communication will be made through the Customer Portal.
- This Agreement is to be construed in accordance with and governed by the internal laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any other jurisdiction other than the internal laws of the State of California to the rights and duties of the parties. The parties hereby consent to the personal and exclusive jurisdiction and venue of the federal and state courts of San Francisco, California.
- Pursuant to 47 U.S.C. Section 230(d), UpStream Networks hereby notifies Customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors, and information regarding providers of such protections may be found on the Internet by searching "parental control protection" or similar terms. If Customer is a consumer (despite the prohibition in Subsection 1(b) above), UpStream Networks hereby provides Customer with the following notice, pursuant to California Civil Code Section 1789.3: (i) to resolve any complaint regarding the Service or receive any further information regarding the Service, Customer should contact UpStream Networks at the contact points provided on UpStream Networks' website under "Contact Us"; and (ii) California consumers may be entitled to pursue complaints regarding the Service by contacting the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs at 1625 North Market Blvd., Suite N-112, Sacramento, CA 95834, or by phone at 800-952-5210.
- Customer will not use the Service in any way that violates applicable laws or regulations, including without limitation U.S. Export Administration Regulations. Customer represents and warrants that it is not on the United States Treasury Department's list of Specially Designated National and Blocked Persons and is not otherwise a person or entity subject to a legal rule that would prohibit UpStream Networks from providing the Service.
- No delay, failure, or waiver of either party's exercise or partial exercise of any right or remedy under this Agreement will operate to limit, impair, preclude, cancel, waive, or otherwise affect such right or remedy. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
- In the event of any conflict between these Terms of Service and any other element of this Agreement, or any ordering document or statement of work, these Terms of Service will govern.
- Customer may not assign this Agreement or any of its rights or obligations hereunder without UpStream Networks' express written consent. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
- If any provision of this Agreement is held invalid, illegal, or unenforceable, including without limitation as a result of unconscionability or inconsistency with public policy, such provision will be construed so as to come as close as possible to its intended meaning, and the validity, legality, or enforceability of the remaining provisions will in no way be impaired.
- This Agreement, including those documents incorporated by reference, embodies the final, full, and exclusive statement of the agreement between the parties, and supersedes all prior agreements, negotiations, representations, and proposals, written or oral, relating to its subject-matter.
2. Payment Plans & Terms.
3. Term and Termination.
4. Acceptable Use.
5. Service Levels & Remedies.
6. Maintenance & Security.
7. Private and Confidential Information.
8. Warranties, Disclaimers, & Limitations of Liability.
Customer will defend and indemnify UpStream Networks (including its officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies) from a claim by any of Customer"s customers or users, or any other third party, arising out of or related to Customer's use of, misuse of, or failure to use the Service, including without limitation: (a) alleged Customer conduct that would breach this Agreement, including alleged infringement of intellectual property or privacy rights and other AUP violations; (b) security breaches or other alleged faults in the Service, including without limitation faults listed in the SLA and faults leading to the release or exposure of personally identifiable information or other private data (whether such data belongs to Customer, to one of Customer's customers, or to other third parties); and (c) any action taken by UpStream Networks as part of an investigation into a suspected violation of this Agreement or as a result of its conclusion that a violation has occurred. Such Customer obligation includes payment of losses, expenses, damages, and costs, including without limitation attorneys' fees.