Last updated: Feb 11, 2022
1. Basic Upside Administration Services.
1.1. Eligibility. To be eligible to use the Upside Administration Services, you must be at least 18 years old.
1.2. Upside Administration Services. Your Upside account ("Upside Account") encompasses the following basic Upside services: One or more Upside platform or bespoke administrative software applications ("Administrative Applications") that programmatically facilitate the administration of the distribution of awards ("Coin Award Transactions") of cryptographic assets (e.g., digital coins, collectibles, tokens or other assets) (collectively, "Coins") by project creators ("Project Creators") to project contributors ("Project Contributors," which, in this contract, are referred to collectively with "Project Creators" as "users" and "you") and the creation, dissemination, contribution to projects, and associated distribution, hosting and sharing of information and other materials relating to projects and the tracking and verification of performed tasks, and verification, monitoring and management of Coin Award Transactions (collectively the "Upside Administration Services").
1.3. Upside's Status as an Administrative Software Developer and Provider. You acknowledge and agree that Upside is and at all times will be functioning purely in the capacity as software developer of Administrative Applications and a software as a service provider of Administrative Applications and shall in no event be the seller, issuer, distributor, creator or vendor of Coins. You further acknowledge and agree that Upside is authorized and instructed to rely upon the information it receives from third parties, including Project Creators and Project Contributors, including information relating to legal and regulatory compliance. Projects Creators and Project Contributors hereby represent and warrant compliance with applicable law with respect to transactions in Coins. Upside shall have no responsibility to review, confirm or otherwise assume any duty with respect to regulatory or legal compliance with respect to the underlying transactions in Coins, the Coins themselves or the accuracy or completeness of any data supplied to it by or on behalf of any third parties. Both Project Creators and Project Contributors acknowledge the often negligible and highly speculative value of Coins and the substantial risk that Coins may never have any value or may subsequently suffer a total loss of all value.** In no event shall Upside have any liability for any losses or liabilities of any kind associated with or arising from awarding, obtaining or holding Coins. You should therefore carefully consider whether awarding, obtaining or holding Coins is suitable for you in light of your risk tolerance and financial condition.**
2. Creating an Upside Account, Projects and Organization.
2.1. Registration of Upside Account. In order to use certain of the Upside Administration Services, including the distribution, receipt or participation in Coin Award Transactions, you must register by providing your name, an e-mail address, password, and affirm your acceptance of this Agreement. Upside may, in our sole discretion, refuse to allow you to establish a Upside Account, or limit the number of Upside Accounts that a single user may establish and maintain at any time.
2.3 Project Creation. Project Creators may use the Upside Site to create projects and project pages ("Projects") on which they describe the project tasks, deliverables, services, and associated terms of completion ("Tasks") and propose Coin Award Transactions for administration through the Upside Administration Services. Upon creation, Projects and Tasks will be in a pending state while Upside reviews and analyzes the Projects and Tasks and completes any needed identity verification and determines any required technical specification or software development work that needs to be performed in connection with developing Administrative Applications suited for the Projects and the Coin that is sought to be awarded by Project Contributors in Coin Award Transactions and prepares the Order Form. During the pending state period, functionality of Upside Administration Services may be limited in Upside's sole discretion, and Coin Award Transactions will not be enabled. After Upside has reviewed the Projects and Tasks proposed for administration, Upside may, in its sole and absolute discretion: (i) accept the Projects and the Tasks, quote applicable fees to the Project Creator on the Order Form, and enable Upside Administration Services functionality following the Project Creator's acceptance of the Order Form; (ii) inform Project Creators of what revisions to the Projects or Tasks are required or of any additional information or work needs to be performed prior to enabling Upside Administration Services and preparing an Order Form; or (iii) inform Project Creators that their Projects and/or Tasks has not been approved for Upside Administration Services.
2.3 Project Contribution. Project Contributors may use the Upside Site to contribute to Projects by proposing their performance of Tasks pursuant to terms specified by Project Creators in exchange for specified Coin Award Transactions administered through the Upside Administration Services. Upon indication of the proposed performance of a Task by Project Contributors, the Tasks proposed to be performed will be in a pending state while the Project Creator reviews the proposed contribution and the Project Contributors who have proposed and offered to perform the Tasks, and, if necessary, Upside reviews and analyzes any needed identity verification or performs additional diligence. During the pending state period, functionality of Upside Administration Services may be limited and Coin Award Transactions will not be enabled. Project Contributors' offers to complete Tasks will be able accepted and Tasks created by Project Creators will be performable by Project Contributors in exchange for Coin Award Transactions (administered through Upside Administrative Services) after the Project Creator has reviewed and accepted the proposed Project Contributor's proposed offer to complete of a Task.
3. Administrative Applications.
3.1. In General. The Administrative Applications allow Project Creators to send their own Coin to Project Contributors and various other administrative functionality, including viewing, tabulating, reporting, requesting, and receiving supported Coins from third parties pursuant to instructions Project Creators and Project Contributors provide through the Upside Site (each such transaction is a "Coin Award Transaction"). Upside reserves the right, to the maximum extent technically possible, to limit and/or disable Administrative Applications or use of such Administrative Applications as required by law or in response to a subpoena, court order, or other binding government order or to enforce transaction limits, but Upside cannot reverse a Coin Award Transaction which has been effected on any Coin network's cryptographic blockchain. Upside is further limited in its ability to refuse to process transactions because it does not maintain custody or control of Coins awarded though its Administrative Applications (through the storage of private keys or otherwise), and Upside only enables the user-directed use of programmatic Administrative Applications. The Administrative Applications services are available only in connection with those Coins and projects that Upside, in its sole discretion, decides to support. The Coins that Upside supports may change from time to time and are the decision of whether to support the administration of certain Coins is made on the basis of a multi-factor tests, including an evaluation of the Project Creators, the proposed Coin and an evaluation of facts and circumstances relating to the expected distribution of the expected Coin Award Transactions. Under no circumstances should you attempt to use the Administrative Applications services to store, send, request, or receive Coins in any form that are not supported by Upside. Upside assumes no responsibility or liability in connection with any attempt to use Upside Administration Services for Coins or Coin Award Transactions that Upside does not support.
3.2. Coin Award Transactions. Upside Administrative Applications process supported Coin Award Transactions according to the instructions received from its users, and Upside does not guarantee the identity of any user, receiver, requestee or other party. You should verify all transaction information prior to submitting instructions to Upside Administrative Applications. Upside reserves the right to attempt to delay or disable any Coin Award Transaction if it perceives a risk of fraud or illegal activity.
3.3. Transmission Delays. Neither Upside nor Upside Administrative Applications store the private keys of Coins. As a result, it may be necessary for Upside to retrieve certain information from you or for you to supply additional information through the Administrative Applications in order to facilitate a Coin Award Transaction in accordance with your instructions, which may delay the initiation or crediting of such Coin Award Transaction. You acknowledge and agree that a Coin Award Transaction facilitated by Upside Administrative Applications may be delayed.
3.4. Third Party Contributions. Upside has no control over, or liability for, the delivery, quality, safety, legality or any other aspect of any goods or services that you may purchase or sell to or from a third party (including any service performed or deliverables delivered in connection with Tasks performed by Project Contributors and Projects and in connection with Tasks created by Project Creators other actions taken by users of Upside Administration Services). Upside is not responsible for ensuring that a service provider or buyer or a seller you may transact with will actually complete the transaction or is authorized to do so. If you experience a problem with any goods or services in connection with Coin Award Transaction administered using the Upside Administration Services, or if you have a dispute with such third party, you must resolve the dispute directly with that third party. If you believe a third party has behaved in a fraudulent, misleading, or inappropriate manner, or if you cannot adequately resolve a dispute with a third party, you may notify Upside Support support@Upside.com so that we may consider what action to take, if any.
3.5. Customized Upside Account Page; User Content. Upside may permit a user to establish a customizable Project Creator or Project Contributor page ("Account Page") which will allow others to easily view Projects, Tasks or administer Coin Award Transactions to and from your Upside Account. The Account Page may allow you to establish a user handle and associated Account Page URL, upload a photo, and provide a short description. In establishing your Account Page and uploading or adding any text, photo, or other material to any part of the Upside Site, you agree that you will not (i) post misleading materials or misappropriate the identity of another person or entity, (ii) post any copyrighted material which you are not authorized to post, or (iii) post any profane, defamatory, unlawful, or offensive materials. Upside, in its sole discretion, may disable your Account Page and take other action in accordance with this Agreement if we believe you are in violation of the foregoing or abusing this service. Upside may reclaim user handles associated with dormant Upside Accounts. Upside does not guarantee or endorse the purported identity, message, or other information posted by a user to the user's Account Page. While using the Site, users may post photos, videos, text, graphics, logos artwork and other audio or visual materials (collectively, "User Content"). Users grant Upside a perpetual, non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, publicly display, publicly perform, store, reproduce, modify, create derivative works, and distribute User Content of any user on or in connection with the Upside Administrative Services or any other services offered by the site and our related marketing and promotional activities. As between users and Upside, users continue to hold all ownership interest in their User Content. Users represents and warrants that its User Content and our use of such User Content will not infringe any third party's intellectual property rights, proprietary rights, privacy rights, confidentiality, rights of publicity or otherwise violate these this contract or applicable law.
3.6 Advanced Protocols; Forking. Unless specifically agreed otherwise, we do not support metacoins, colored coins, side chains, or other derivative, enhanced, or forked protocols, tokens, or coins which supplement or interact with a Coins and Coin Award Transactions supported by Upside (collectively, "Advanced Protocols"). Do not use your Upside Account or to receive, request, send, store, or engage in any other type of transaction involving an Advanced Protocol. The Upside platform is not configured to detect and/or secure Advanced Protocol transactions and Upside assumes absolutely no responsibility whatsoever in respect to Advanced Protocols.
3.7 Operation of Coin Protocols. Upside does not own or control the underlying software protocols which govern the operation of Coins supported by our Upside Administration Services. In many cases, the underlying protocols are open source and anyone can use, copy, modify, and distribute them. By using the Upside, you acknowledge and agree (i) that Upside is not responsible for operation of the underlying protocols and that Upside makes no guarantee of their functionality, security, or availability; and (ii) that the underlying protocols are subject to sudden changes in operating rules (a/k/a "forks"), and that such forks may materially affect the value, function, and/or even the name of the Coins and Coin Award Transactions you send or receive on the Upside platform. In the event of a fork, you agree that Upside may temporarily suspend Upside operations and Upside Administrative Services (with or without advance notice to you) and that Upside may, in its sole discretion, in consultation with Project Creators, decide whether or not to support (or cease supporting) either branch of the forked protocol entirely. You acknowledge and agree that Upside assumes absolutely no responsibility whatsoever in respect of an unsupported branch of a forked protocol.
4.1. Fees. You may be subject to a recurring monthly or annual fee for hosting services ("Hosting Services Fee") or for other services (a “Services Fee”) (each a “Fee” and together the “Fees”). Fees will be stated at the time of your purchase or sign-up, as applicable. Fees may be subject to tax, collected by Upside or a third party through which you transact, and are non-refundable. Upside only accepts credit cards for payment of Fees.
Upside may waive some portion or all of the Fees depending on the payment method selected and in its sole discretion. Upside reserves the right to adjust its Fees and issue any applicable waivers at any time. We will always notify you of the Fees which apply to you. Upside may increase or add new fees and charges for any existing Services you are using by giving you at least 30 days' prior notice and may elect to charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments. You can check your current Fees by contacting support@Upside.com.
4.2. Reversals; Cancellations. You cannot cancel, reverse, or change any transaction marked as complete or pending. If your payment is not successful or if your payment method has insufficient funds, you authorize Upside, in its sole discretion, either to cancel the transaction or to debit your other payment methods, including Upside balances or other potentially linked accounts, in any amount necessary to complete the transaction. You are responsible for maintaining an adequate balance and/or sufficient credit limits in order to avoid overdraft, NSF, or similar fees charged by your payment provider. Upside reserves the right to refuse to process, or to cancel or reverse, any Token Transaction in its sole discretion, even after funds have been debited from your account(s), if Upside suspects the transaction involves (or has a high risk of involvement in) money laundering, terrorist financing, fraud, or any other type of financial crime; in response to a subpoena, court order, or other government order; if Upside reasonably suspects that the Token Transactions is erroneous; or if Upside suspects the transaction relates to Prohibited Use or a Prohibited Business as set forth below. In such instances, Upside will reverse the transaction and we are under no obligation to allow you to reinstate Token Transaction on the same terms as the canceled transaction.
4.3. Recurring Transactions. If you initiate a recurring transaction for your Fees, you authorize Upside to initiate recurring electronic payments in accordance with your selected corresponding payment accounts or method, including but not limited to recurring automated clearing house (ACH) debit or credit entries from or to your linked bank account. Your recurring transactions will occur in identical, periodic installments, based on your period selection (e.g.monthly), until either you or Upside cancels the recurring order. If you select a U.S. Bank Account as your payment method for a recurring transaction, and such transaction falls on a weekend or holiday, or after bank business hours, the ACH credit or debit will be executed on the next business day. If your Bank is unable to process any electronic ACH debit entry, Upside will notify you of cancellation of the transaction and may avail itself of remedies set forth in this User Agreement to recover any amount owed to Upside. This authorization will remain in full force and effect until you change your recurring transaction settings on your account settings page or until you provide us written notification at support@Upside.com. You agree to notify Upside in writing of any changes in your linked bank account information prior to a recurring transaction. Upside may, at any time, terminate recurring transactions by providing notice to you.
If you select to use a credit card to pay a recurring payment of your Fees, unless you notify us before a charge that you want to cancel or do not want to automatically renew your membership or subscription, you understand it will automatically continue and you authorize us, or a third party through which you transact (without notice to you, unless required by applicable law) to collect the then-applicable fees and any taxes, using any credit card we have on record for you.
If all credit cards we have on file for you are declined for payment of your membership or subscription fees, we may cancel your Upside Account or subscription, as applicable, unless you provide us with a new credit card. If you provide us with a new credit card and are successfully charged before your Upside Account or subscription is canceled, your new Upside Account or subscription period will be based on the original renewal date and not the date of the successful charge.
4.4. Payment Services Partners. Upside may use a third party payment processor to process any payment between you and Upside, including but not limited to payments in relation to your deposits or withdrawals.
5. General Use, Prohibited Use, and Termination.
5.1. Limited License. We grant you a limited, nonexclusive, nontransferable license, subject to the terms of this Agreement, to access and use the Upside Site, and related content, materials, information (collectively, the "Content") solely for approved purposes as permitted by Upside from time to time. Any other use of the Upside Site or Content is expressly prohibited and all other right, title, and interest in the Upside Site or Content is exclusively the property of Upside and its licensors. You agree you will not copy, transmit, distribute, sell, license, reverse engineer, modify, publish, or participate in the transfer or sale of, create derivative works from, or in any other way exploit any of the Content, in whole or in part. "Upside.com", "Upside", and all logos related to the Upside Administration Services or displayed on the Upside Site are either trademarks or registered marks of Upside or its licensors. You may not copy, imitate or use them without Upside's prior written consent. Also, you may not use any of Upside's marks in connection with the creation, issuance, sale, offer for sale, trading, distribution, solicitation, marketing, or promotion of any investment products (e.g., coins, assets, securities, commodities, investment or trading products, derivatives, structured products, investment funds, investment portfolios, commodity pools, swaps, securitizations or synthetic products, etc.).
5.2. Website Accuracy. Although we intend to provide accurate and timely information on the Upside Site, the Upside Site (including, without limitation, the Content) may not always be entirely accurate, complete or current and may also include technical inaccuracies or typographical errors. In an effort to continue to provide you with as complete and accurate information as possible, information may be changed or updated from time to time without notice, including without limitation information regarding our policies, products and services. Accordingly, you should verify all information before relying on it, and all decisions based on information contained on the Upside Site are your sole responsibility and we shall have no liability for such decisions. Links to third-party materials (including without limitation websites) may be provided as a convenience but are not controlled by us. You acknowledge and agree that we are not responsible for any aspect of the information, content, or services contained in any third-party materials or on any third party sites accessible or linked to the Upside Site,
5.3. Third-Party Applications. If, to the extent permitted by Upside from time to time, you grant express permission to a third party to access or connect to your Upside Account, either through the third party's product or service or through the Upside Site, you acknowledge that granting permission to a third party to take specific actions on your behalf does not relieve you of any of your responsibilities under this Agreement. You are fully responsible for all acts or omissions of any third party with access to your Upside Account. Further, you acknowledge and agree that you will not hold Upside responsible for, and will indemnify Upside from, any liability arising out of or related to any act or omission of any third party with access to your Upside Account. You may change or remove permissions granted by you to third parties with respect to your Upside Account at any time through the Account Settings (Integrations) page on the Upside Site.
5.4. Prohibited Use. In connection with your use of the Upside Administration Services, and your interactions with other users, and third parties you agree and represent you will not engage in any Prohibited Business or Prohibited Use defined herein. We reserve the right at all times to monitor, review, retain and/or disclose any information as necessary to satisfy any applicable law, regulation, sanctions programs, legal process or governmental request. We reserve the right to cancel and/or suspend your Upside Account and/or block transactions or freeze funds immediately and without notice if we determine, in our sole discretion, that your Account is associated with a Prohibited Use and/or a Prohibited Business.
5.5. Transactions Limits. The use of all Upside Administration Services may be subject to a limit on the amount of volume, you may transact or transfer in a given period. Your transaction limits may vary depending on the Coin in which you're transacting, verification steps you have completed, and other factors. Upside reserves the right to change applicable limits as we deem necessary in our sole discretion. We may require you to submit additional information about yourself or your business, provide records, and arrange for meetings with Upside staff (such process, "Enhanced Due Diligence"). Upside reserves the right to charge you costs and fees associated with Enhanced Due Diligence, provided that we notify you in advance of any such charges accruing. In our sole discretion, we may refuse to raise your limits or we may lower your limits at a subsequent time even if you have completed Enhanced Due Diligence.
5.6. Suspension, Termination, and Cancellation. Upside may: (a) suspend, restrict, or terminate your access to any or all of the Upside Administration Services, and/or (b) deactivate or cancel your Upside Account if:
- We are so required by a facially valid subpoena, court order, or binding order of a government authority; or
- We reasonably suspect you of using your Upside Account in connection with a Prohibited Use or Business; or
- Use of your Upside Account is subject to any pending litigation, investigation, or government proceeding and/or we perceive a heightened risk of legal or regulatory non-compliance associated with your Account activity; or
- Our service partners are unable to support your use; or
- You take any action that Upside deems as circumventing Upside's controls, including, but not limited to, opening multiple Upside Accounts or abusing promotions which Upside may offer from time to time.
- You breach our Behavior Policy
If Upside suspends or closes your account, or terminates your use of Upside Administration Services for any reason, we will provide you with notice of our actions unless a court order or other legal process prohibits Upside from providing you with such notice. You acknowledge that Upside's decision to take certain actions, including limiting access to, suspending, or closing your account, may be based on confidential criteria that are essential to Upside's risk management and security protocols. You agree that Upside is under no obligation to disclose the details of its risk management and security procedures to you.
You may cancel your Upside Account at any time by contacting support@Upside.com. You will not be charged for canceling your Upside Account or for the Platform Monthly Fee following the effective date of cancellation, although you will be required to pay the full Project Creation Fee any outstanding amounts owed to Upside. You authorize us to disable any Administrative Applications at the time of cancellation.
5.7. Relationship of the Parties. Upside is an independent contractor for all purposes. Nothing in this Agreement shall be deemed or is intended to be deemed, nor shall it cause, you and Upside to be treated as partners, joint ventures, or otherwise as joint associates for profit, or either you or Upside to be treated as the agent of the other.
5.8. Privacy of Others; Marketing. If you receive information about another user through the Upside Administration Services, you must keep the information confidential and only use it in connection with the Upside Administration Services. You may not disclose or distribute a user's information to a third party or use the information except as reasonably necessary to effectuate a transaction and other functions reasonably incidental thereto such as support, reconciliation and accounting unless you receive the user's express consent to do so. You may not send unsolicited email to a user through the Upside Administration Services.
5.9. Password Security; Contact Information. You are responsible for maintaining adequate security and control of any and all IDs, passwords, hints, personal identification numbers (PINs), API keys or any other codes that you use to access the Upside Administration Services. Any loss or compromise of the foregoing information and/or your personal information may result in unauthorized access to your Upside Account by third-parties and the loss or theft of any Coin and/or funds held in your Upside Account and any associated accounts, including your linked bank account(s) and credit card(s). You are responsible for keeping your email address and telephone number up to date in your Account Profile in order to receive any notices or alerts that we may send you. We assume no responsibility for any loss that you may sustain due to compromise of account login credentials due to no fault of Upside and/or failure to follow or act on any notices or alerts that we may send to you. In the event you believe your Upside Account information has been compromised, contact Upside Support immediately at support@Upside.com.
5.10. Taxes. It is your sole responsibility to determine whether, and to what extent, any taxes apply to any transactions you conduct through the Upside Administration Services, and to withhold, collect, report and remit the correct amounts of taxes to the appropriate tax authorities. Your transaction history is available through your Upside Account.
5.11. Unclaimed Property. If Upside is deemed to be holding Coins or other property in your account, and Upside is unable to contact you and has no record of your use of the Services for several years, applicable law may require Upside to report these funds as unclaimed property to the applicable jurisdiction. If this occurs, Upside will try to locate you at the address shown in our records, but if Upside is unable to locate you, it may be required to deliver any such funds to the applicable state or jurisdiction as unclaimed property. Upside reserves the right to deduct a dormancy fee or other administrative charges from such unclaimed funds, as permitted by applicable law.
6. Customer Feedback, Queries, Complaints, and Dispute Resolution
6.1. Contact Upside. If you have any feedback, questions, or complaints, contact us via our Customer Support email at support@Upside.com. When you contact us please provide us with your name, address, and any other information we may need to identify you, your Upside Account, and the transaction on which you have feedback, questions, or complaints. If you believe your account has been compromised, you may also report your claim by contacting support@Upside.com.
6.2. Arbitration; Waiver of Class Action. If you have a dispute with Upside, we will attempt to resolve any such disputes through our support team. If we cannot resolve the dispute through our support team, you and we agree that any dispute arising under this Agreement shall be finally settled in binding arbitration, on an individual basis, in accordance with the JAMS's rules for arbitration of consumer-related disputes and you and Upside hereby expressly waive trial by jury and right to participate in a class action lawsuit or class-wide arbitration. The arbitration will be conducted by a single, neutral arbitrator and shall take place in the county of Upside's place of business or another mutually agreeable location, in the English language. The arbitrator may award any relief that a court of competent jurisdiction could award, including attorneys' fees when authorized by law, and the arbitral decision may be enforced in any court. At your request, hearings may be conducted in person or by telephone and the arbitrator may provide for submitting and determining motions on briefs, without oral hearings. The prevailing party in any action or proceeding to enforce this agreement shall be entitled to costs and attorneys' fees.
If the arbitrator(s) or arbitration administrator would impose filing fees or other administrative costs on you, we will reimburse you, upon request, to the extent such fees or costs would exceed those that you would otherwise have to pay if you were proceeding instead in a court. We will also pay additional fees or costs if required to do so by the arbitration administrator's rules or applicable law. Apart from the foregoing, each Party will be responsible for any other fees or costs, such as attorney fees that the Party may incur. If a court decides that any provision of this section 6.2 is invalid or unenforceable, that provision shall be severed and the other parts of this section 6.2 shall still apply. In any case, the remainder of this User Agreement, will continue to apply.
7. General Provisions.
7.1. Computer Viruses. We shall not bear any liability, whatsoever, for any damage or interruptions caused by any computer viruses, spyware, scareware, Trojan horses, worms or other malware that may affect your computer or other equipment, or any phishing, spoofing or other attack. We advise the regular use of a reputable and readily available virus screening and prevention software. You should also be aware that SMS and email services are vulnerable to spoofing and phishing attacks and should use care in reviewing messages purporting to originate from Upside. Always log into your Upside Account through the Upside Site to review any transactions or required actions if you have any uncertainty regarding the authenticity of any communication or notice.
7.2. Release of Upside; Indemnification. If you have a dispute with one or more users of the Upside services, you release Upside, its affiliates and service providers, and each of their respective officers, directors, agents, joint venturers, employees and representatives from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes. You agree to indemnify and hold Upside, its affiliates and Service Providers, and each of its or their respective officers, directors, agents, joint venturers, employees and representatives, harmless from any claim or demand (including attorneys' fees and any fines, fees or penalties imposed by any regulatory authority) arising out of or related to your breach of this Agreement or your violation of any law, rule or regulation, or the rights of any third party.
7.3. Limitation of Liability; No Warranty. IN NO EVENT SHALL Upside, ITS AFFILIATES AND SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES OR REPRESENTATIVES, BE LIABLE (A) FOR ANY AMOUNT GREATER THAN THE MONTHLY PLATFORM FEE, IF ANY, PAID BY A USER; (B) FOR ANY LOST PROFITS OR ANY SPECIAL, INCIDENTAL, INDIRECT, INTANGIBLE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH AUTHORIZED OR UNAUTHORIZED USE OF THE Upside SITE, THE ADMINISTRATIVE APPLICATIONS OR THE Upside SERVICES, OR THIS AGREEMENT, EVEN IF AN AUTHORIZED REPRESENTATIVE OF Upside HAS BEEN ADVISED OF OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; (C) FOR ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; OR (D) FOR ANY CONTENT OBTAINED FROM THE Upside SITE. THIS MEANS, BY WAY OF EXAMPLE ONLY (AND WITHOUT LIMITING THE SCOPE OF THE PRECEDING SENTENCE), THAT IF YOU CLAIM THAT Upside OR AN ADMINISTRATIVE APPLICATIONS FAILED TO PROCESS A COIN AWARD TRANSACTION PROPERLY, YOUR DAMAGES ARE LIMITED TO NO MORE THAN THE VALUE OF THE MONTHLY PLATFORM FEE, IF ANY, YOU PAID IN CONNECTION WITH THE TRANSACTION, AND THAT YOU MAY NOT RECOVER FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES, OR OTHER TYPES OF SPECIAL, INCIDENTAL, INDIRECT, INTANGIBLE, OR CONSEQUENTIAL DAMAGES IN EXCESS OF THE VALUE OF THE SUPPORTED COIN AND COIN AWARD TRANSACTION AT ISSUE IN THE TRANSACTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
THE Upside ADMINISTRATION SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Upside SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT. Upside DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT ACCESS TO THE SITE, ANY PART OF THE Upside SERVICES, THE ADMINISTRATIVE APPLICATIONS, OR ANY OF THE MATERIALS CONTAINED THEREIN, WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, OR ERROR-FREE.
Upside makes no representations about the accuracy or completeness of any historical price data that may be available on the Site. Upside will make reasonable efforts to ensure that requests for electronic debits and credits involving bank accounts, credit cards, and check issuances are processed in a timely manner but Upside makes no representations or warranties regarding the amount of time needed to complete processing which is dependent upon many factors outside of our control.
7.5. Amendments. We may amend or modify this Agreement by posting on the Upside Site or emailing to you the revised Agreement, and the revised Agreement shall be effective at such time. If you do not agree with any such modification, your sole and exclusive remedy is to terminate your use of the Services and close your account. You agree that we shall not be liable to you or any third party for any modification or termination of the Upside Administration Services, or suspension or termination of your access to the Upside Administration Services, except to the extent otherwise expressly set forth herein. If the revised Agreement includes a material change, we will endeavor to provide you advanced notice via our website and/or email before the material change becomes effective.
7.6. Assignment. You may not assign any rights and/or licenses granted under this Agreement. We reserve the right to assign our rights without restriction, including without limitation to any Upside affiliates or subsidiaries, or to any successor in interest of any business associated with the Upside Administration Services. Any attempted transfer or assignment in violation hereof shall be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
7.7. Severability. If any provision of this Agreement shall be determined to be invalid or unenforceable under any rule, law or regulation or any governmental agency, local, state, or federal, such provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under any applicable law and the validity or enforceability of any other provision of this Agreement shall not be affected.
7.8. Change of Control. In the event that Upside is acquired by or merged with a third party entity, we reserve the right, in any of these circumstances, to transfer or assign the information we have collected from you as part of such merger, acquisition, sale, or other change of control.
7.9. Survival. All provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement, including, without limitation, sections pertaining to suspension or termination, Upside Account cancellation, debts owed to Upside, general use of the Upside Site, disputes with Upside, and general provisions, shall survive the termination or expiration of this Agreement.
7.10. Governing Law. You agree that the laws of the State of California, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and Upside, except to the extent governed by federal law.
7.11. Force Majeure. We shall not be liable for delays, failure in performance or interruption of service which result directly or indirectly from any cause or condition beyond our reasonable control, including but not limited to, any delay or failure due to any act of God, act of civil or military authorities, act of terrorists, civil disturbance, war, strike or other labor dispute, fire, interruption in telecommunications or Internet services or network provider services, failure of equipment and/or software, other catastrophe or any other occurrence which is beyond our reasonable control and shall not affect the validity and enforceability of any remaining provisions.
7.12. English Language Controls. Notwithstanding any other provision of this Agreement, any translation of this Agreement is provided for your convenience. The meanings of terms, conditions and representations herein are subject to definitions and interpretations in the English language. Any translation provided may not accurately represent the information in the original English.
7.13. Non-Waiver of Rights. This agreement shall not be construed to waive rights that cannot be waived under applicable state laws in the state where you are located.