Effective Date: September 1st, 2016
Please read these Terms of Service carefully. BY ACCESSING OR USING THE WEBSITES LOCATED AT www.getupcast.com (together, with all information, materials, applications, software, and other Content (as defined below) therein, the “Websites”), INCLUDING ANY PAID SERVICES, YOU SIGNIFY YOUR ASSENT AND AGREE TO BE BOUND BY BOTH THESE TERMS OF SERVICE (the “Terms of Service”) AND THE TERMS AND CONDITIONS OF UpCast Talent, Inc’s PRIVACY NOTICE, WHICH ARE PUBLISHED AT GETUPCAST.COM/PRIVACY, AND WHICH ARE INCORPORATED HEREIN BY REFERENCE, JUST AS IF YOU HAD SIGNED THEM, AS THEY MAY BE AMENDED BY UPCAST FROM TIME TO TIME IN ITS SOLE DISCRETION. IF YOU DO NOT AGREE TO ANY OF THESE TERMS, YOU MUST CEASE USING THE WEBSITE. YOU MAY AND SHOULD PRINT AND KEEP A COPY OF THESE TERMS OF SERVICE.
- Introduction and Acceptance of Terms
These Terms of Service set forth a binding agreement between you and UpCast Talent, Inc, a Delaware corporation with its principal place of business at 604 Arizona Ave, Santa Monica, CA 90403 (together with its owners, parents, subsidiaries, affiliates, directors, officers, managers, members, agents, and employees, “UpCast”) governing your access and use as a user (“User”) of the Websites. As used herein, the terms “use” and “using” when used in the context of the Websites mean “access or use” and “accessing or using”, respectively.
Any claim or dispute between you and UpCast that arises in whole or in part from the Websites shall to the greatest extent permitted under law be decided through final and binding arbitration in accordance with Section 17 of these Terms of Service.
UpCast reserves the right to change these Terms of Service at its sole discretion and at any time without personal notice to you. If UpCast makes a material change to these Terms of Service, UpCast will update this page and post a notice on the Websites’ homepages for a reasonable period of time, and will indicate the effective date of the changes at the top of both pages. UpCast will also notify registered Users by sending an e-mail to the e-mail address on file. It is your responsibility to review these Terms of Service for any changes, and your access or use of the Websites after UpCast has notified you of a change in these Terms of Service constitutes your acceptance of and agreement to be bound by all changes. If you do not agree to be bound by the changes, you must immediately stop using the Websites. Any amendments to these Terms of Service shall apply prospectively from the date on which it is made or added to the Terms of Service, and any amended dispute resolution procedures do not apply to any dispute of which the parties had actual notice on the date of the amendment.
You agree that UpCast is not an employer with respect to any employment opportunity advertised on UpCast, whether such employment opportunity is advertised through the Websites or otherwise. UpCast is not responsible for any employment, hiring, or salary decisions made by you or any other person, even if such person used the software to advertise the employment opportunity or communicate the employment, hiring or salary decision.
UpCast makes no representations, warranties or guarantees regarding the Websites, including as to: (i) the effectiveness of the Websites in meeting your employment needs or objectives; (ii) the ability of any user of the Websites to offer the employment opportunities or to fill any such employment opportunities such user is advertising through the Websites; (iii) any roles, jobs, resumes, data or other advertisements or information conveyed to you through the Websites; or (iv) the truthfulness, accuracy, legality, completeness, timeliness or reliability of any information transmitted through the Websites. UpCast does not guarantee pre-screen or approve in advance a user’s use of the Websites or other third-party content and does not investigate or monitor the quality, safety, or other legality of such uses of the Websites or other third party content. While UpCast reserves the right in its sole discretion to remove or modify any information available on the Websites, including information transmitted through the services, UpCast does not assume any obligation to do so and to the extent permitted by law, disclaims any liability for failing to take any such action.
- Description of the Websites and Paid Services
You agree that: (i) the Websites shall be deemed solely based in the State of Delaware; (ii) the Websites shall be deemed a passive website that does not give rise to personal jurisdiction over UpCast, either specific or general, in jurisdictions other than the State of Delaware; and (iii) all use of and benefits from the Websites shall be deemed to be received or enjoyed solely within the State of Delaware. UpCast controls and operates the Websites and makes no representation that the contents of the Websites are appropriate or available for use outside of the United States. If you use the Websites from a location outside the United States, you are responsible for compliance with applicable U.S. and local laws, including export and import laws. Registration as a User of or subscriber to the Websites results in your information being stored and processed in the United States, and you specifically consent to UpCast’s storing and processing the personal data you submit.
The Websites contain content including but not limited to text, graphics, photographs, images, news reports, articles, editorial and other writings, audio and video recordings, data, listings, and directory information (collectively, “Content”) that is accessible by Users. The Websites may also offer forums, bulletin boards, wikis, chat rooms, blogs or other interactive areas for Users to communicate with each other. The creation of a user account may be required for the use of certain portions of the Websites. In addition, certain contents and services of the Websites may only be accessed through purchase or paid subscription. We refer to the paid services available on or through the Website, including the Talent subscription services, collectively as the “Paid Services”. Content that is available to Users only through purchase or paid subscription is referred to collectively as the “Paid Services Content”. Content may include facts, views, opinions and recommendations of individuals and organizations not affiliated with UpCast. UpCast does not guarantee the accuracy, completeness or timeliness of, or otherwise endorse, these facts, views, opinions or recommendations.
- Proprietary Rights
UpCast owns, operates, licenses, controls, and provides access to the Websites. You acknowledge and agree that UpCast, and its licensors, retain all right, title and interest in and to all past, present and future Content, excluding User Provided Content (as defined below), applications, software, content and materials provided on or through the Websites (including, without limitation, the audiovisual works, text, images, photographs, videos, graphics, page headers, editorial and contextual information, the selection and arrangement of elements displayed on or through the Websites, the compilation of all content and materials on the Websites, and the business process, procedures, methods and techniques used in the Websites) and all associated patent rights, copyright rights, trademark rights, trade secret rights and other intellectual property and proprietary rights recognized anywhere in the world.
UpCast and the UpCast logo are the registered or common law or trademarks of UpCast Talent, Inc, and all other proprietary trademarks, service marks, trade names, trade dress, slogans, logos, and other indicia of origin that appear on or in connection with the Websites are the property of UpCast Talent, Inc unless otherwise noted and are protected by applicable copyright, trademark, intellectual property and other laws. UpCast’s intellectual property, including, without limitation, its trademarks and trade dress, may not be used in any manner that is likely to cause confusion among users, or in any manner that disparages UpCast. All rights are expressly reserved.
All third party trademarks, logos, photographs, images, audio and audio-visual content, programming, and other intellectual property contained on or within the Websites are the property of the respective third parties, including the respective content owners, and may be protected by applicable copyright, trademark or other intellectual property laws and treaties. Each such third party expressly reserves all rights into such intellectual property. Use of third party software or services is subject to the terms and conditions of the applicable third party license agreements, and you agree to look solely to the applicable third party and not to UpCast to enforce any of your rights in relation thereto. Except as expressly set forth in these Terms of Service or otherwise expressly granted to you in writing by UpCast, no rights (either by implication, estoppel or otherwise) in or to the Websites or their contents are granted to you.
- User Provided Content
Portions of the Websites may allow you and other Users to upload or transmit data, information, text, images, software, audio, photographs, graphics, video, messages, tags, or other materials to or through the Websites (“User Provided Content”). For example, the Websites may offer forums, bulletin boards, wikis, chat rooms, blogs or other interactive areas. For User Provided Content, UpCast is merely hosting and providing access.
The decision to submit User Provided Content to the Websites is your responsibility and you should only submit content that belongs to you or that will not violate the rights of others. Be aware that content belongs to the creator of that content and you should not reproduce or submit anything without the permission of the owner. By submitting User Provided Content, you represent, acknowledge, and warrant (a) that you have the right to do so or that you have obtained any necessary third-party consents (e.g., under privacy or intellectual property laws), (b) that the User Provided Content does not infringe on the copyrights, trademarks, moral rights, rights of privacy or publicity, or the intellectual property rights of any person or entity, and (c) that no other party has any right, title, claim, or interest in the User Provided Content that would be infringed upon as a result of uploading the User Provided Content. If you submit User Provided Content to the Websites on behalf of a group, organization or business entity, you represent that you have the right to do so and that you have obtained any consents from the group, organization or business. Upon the request of UpCast, you agree to furnish UpCast with any documentation, substantiation, and releases necessary and reasonably required to verify and substantiate your compliance with this provision. You agree not to accept payment for User Provided Content from any third party, including, without limitation, accepting payment for the inclusion of a logo, brand advertising or other commercial content, in User Provided Content.
UpCast does not vouch for the validity, accuracy or credibility of any User Provided Content on the Websites, and does not take any responsibility or assume any liability for any actions Users may take as a result of viewing, reading or listening to User Provided Content on the Websites. Through your use of the Websites, you may be exposed to content that you may find offensive, objectionable, harmful, inaccurate or deceptive. There may also be risks of dealing with underage persons, people acting under false pretenses, international trade issues and foreign nationals. UpCast does not endorse any User Provided Content or any opinion, recommendation, or advice expressed therein. By using the Websites, you assume all associated risks, and UpCast expressly disclaims any and all liability in connection with User Provided Content.
In addition, you grant to UpCast, without any credit or compensation to you, a royalty-free, non-exclusive, worldwide, perpetual, unrestricted, irrevocable, and fully transferable, assignable and sub-licensable license to host, use, modify, display, copy, reproduce, disclose, sell, translate, create derivative works of, distribute, and export any User Provided Content, in whole or in part, or to incorporate it in other works in any form, media, software or technology of any kind now known or hereafter developed or discovered for any purposes whatsoever. You agree that UpCast may publish or otherwise disclose your name in connection with your User Provided Content.
You acknowledge, consent and agree that UpCast may access, preserve and disclose account information and User Provided Content that you provide if UpCast is required to do so by law or if it believes in good faith that such access, preservation or disclosure is reasonably necessary to (i) comply with legal process, (ii) enforce these Terms of Service, (iii) respond to claims that any User Provided Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of UpCast, its employees, partners and agents or members of the public.
UpCast undertakes no obligation to pre-screen User Provided Content but reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Websites. You acknowledge, consent and agree that UpCast, at its sole discretion and without notice to you, may review, censor, delete, move, edit, block access to or prohibit the transmission or receipt of any User Provided Content or other information, in whole or in part, that UpCast deems obscene, defamatory or libelous in nature, that invades the right of privacy or infringes any right of any person or entity, is unlawful, is offensive or otherwise inappropriate, or that UpCast believes to be in violation of these Terms of Service.
You are solely responsible for all User Provided Content that you make available via the Websites. Under no circumstances will UpCast be liable to you in any way for any User Provided Content that you upload, post, or otherwise make available via the Websites including, but not limited to, any errors or omissions in User Provided Content, or for any loss or damage of any kind incurred as a result of User Uploaded Information. In addition, you hereby release UpCast from any and all claims, liens, demands, actions or suits in connection with the User Provided Content, including, without limitation, any and all liability for any use or nonuse of your User Provided Content, claims for defamation, invasion of privacy, right of publicity, emotional distress or economic loss. Except for the rights granted in these Terms of Service, UpCast acquires no title or ownership rights in or to any User Provided Content you submit and nothing in these Terms of Service conveys any ownership rights in the User Provided Content you submit to UpCast.
- Third Party Content and Linked Sites
Third parties provide some of the Content of the Websites. UpCast makes no representations or warranties as to the completeness, accuracy, adequacy, currency or reliability of any content supplied by third parties and will not be liable for any lack of the foregoing or for any errors or omissions in any content supplied by third parties. In addition, third parties may offer goods, services, and other materials to you on the Websites. Such dealings are solely between you and the third party. UpCast will not be responsible for any loss or damage of any sort incurred as the result of any such dealings. UpCast makes no warranty concerning, is not responsible for and does not endorse any third party provided goods or services, and you agree that any recourse for dissatisfaction or problems with those goods or services will be sought from the third party provider and not from UpCast.
Under certain circumstances, UpCast may permit third-party users to upload content, in which event you, at your own risk, may be exposed to offensive, indecent or objectionable content. Descriptions of, or references to products, services or publications within the Websites do not imply endorsement by UpCast of that product, service or publication. The Websites may include links to other sites that are not maintained by UpCast. Websites of those third parties are subject to terms and conditions different from those found here and it is your responsibility to ensure that you have read and understood them. UpCast is not responsible for the content of those sites, does not endorse those sites, and makes no representations whatsoever concerning the content or accuracy of such other sites. If you decide to access any third party site linked to the Websites, you do so entirely at your own risk, and you may be exposed to offensive, indecent or objectionable content. UpCast shall have no liability for any loss or damage arising from your use of any such site.
- Limited License
Subject to your compliance with these Terms of Service, UpCast grants you a limited, personal, non-exclusive, non-commercial, revocable, non-assignable and non-transferable license to:
- View and listen to the Content contained on the Websites;
- Create profile pages on the Websites for non-commercial and private use;
- Participate in the Websites’ community areas and communicate with other Users; and
- Download the Content contained on the Websites onto a computer or other personal electronic device for your personal, non-commercial home or archival use only, provided you do not delete or change any copyright, trademark, or other proprietary notices contained therein.
In addition to the foregoing, by subscribing to the Paid Services, UpCast grants you a personal, limited non-exclusive, non-transferable and non-assignable license to access and use the Paid Services Content. You may not use the Paid Services Content for the development of data-related products or services, the creation of any database product, or for data provision services. Unless separately and specifically licensed to do so in writing by UpCast, you agree not to retransmit, disclose or distribute any Paid Services Content to any other person, organization or entity. You expressly agree that the Paid Services and Paid Services Content shall be used solely for your own benefit and that the Paid Services Content shall not be redistributed or republished by you. You understand and agree that the features of the Paid Services are subject to change without notice to you.
You may not take any action to jeopardize, limit or interfere with UpCast’s ownership of and rights with respect to the Websites or any Content. The use, copying, sale, leasing, renting, lending, distribution, modification, downloading, creating of derivative works, posting or publication by you, directly or indirectly, of any Content, or any other use of such Content, except pursuant to the foregoing express limited grant of rights, is strictly prohibited. Bots, crawlers, spiders, data miners, scraping and any other automatic access tool are expressly prohibited. You acknowledge that any unauthorized copying or unauthorized use of the Websites or of any Content is a violation of these Terms of Service and is strictly prohibited. Violation of this limited use license may result in immediate termination of your access and use of the Websites and may result in legal action against you.
- Restrictions on Use
The Websites is provided for lawful purposes only. By accessing or using the Websites, you agree and warrant that in connection with your use of the Websites you will not:
* alter any trademark, copyright and other proprietary or legal notices contained in the Websites; or
* manipulate the Websites in any way not intended and directed by UpCast; or
* copy or seek to copy or “rip” any audio, video or audiovisual content from the Websites; or
* exploit any part of the Websites for commercial gain or undertake any commercial activity utilizing the contents of the Websites without the prior written consent of UpCast, including, for example, inserting your own or a third party’s advertising, branding or promotional content into the Website’s contents, materials or services; or
* upload, post, e-mail, transmit, display, copy, distribute, promote, or otherwise communicate to the public:
– any material that is false, unlawful, threatening, tortious, disparaging, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, racist, sexually explicit, ethnically or culturally offensive, indecent, harassing, or that promotes violence, racial hatred, terrorism, or illegal acts, or anything that in UpCast’s sole discretion is otherwise objectionable; or
– information, software, content or other material that violates, plagiarizes, misappropriates or infringes the rights of third parties including, without limitation, copyright, trademark, patent, trade secret, rights of privacy or publicity, confidential information or any other proprietary right; or
– material of any kind that restricts or inhibits any other user’s uninhibited use and enjoyment of the Websites or interferes with, overburdens, impairs or disrupts the Websites, including material that contains a virus, Trojan horse, time bomb, worm, spyware, adware, malware, bot, any automated system, such as scripts, or any other harmful component; or
– any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, requests for money, petitions for signature, or any other form of solicitation; or
– use or attempt to use another person’s information, account, password, service or system except as expressly permitted; or
* impersonate another person or entity; or
* engage in any conduct that in UpCast’s sole discretion restricts the ability of any other person to enjoy the use of the Websites; or
* solicit or collect personal data including telephone numbers, addresses, last names, email addresses, or any other kind of information about users.
- Copyright, Trademark, and Celebrity Material Infringement
UpCast responds to complaints that user-provided content infringes upon copyrights, trademarks, and other intellectual property rights. Please be aware that celebrities, and sometimes others, may have a “right of publicity,” which means that they may have a right to control commercial uses of their name, image, likeness, and other aspects of their identity. Although you may be a fan, you risk infringing celebrity rights if you use a celebrity name or likeness on the Websites and you don’t have the celebrity’s permission.
In operating the Websites, we may act as a “services provider” (as defined by the Digital Millennium Copyright Act (“DMCA”)) and offer services as online provider of materials and links to third-party websites. As a result, third-party materials that we do not own or control may be transmitted, stored, accessed or otherwise made available using the Websites.
UpCast has adopted a policy that provides for the immediate removal of any content or the suspension of any user that is found to have infringed on the rights of UpCast or a third party, or that has otherwise violated any intellectual property laws or regulations, or any of these Terms of Service. UpCast reserves the right to remove any content contained in or posted to the Websites that UpCast determines in its sole discretion does or may allegedly infringe another person’s copyright, trademark, celebrity material or other rights.
Notices to UpCast regarding any alleged infringement on the Websites should be directed to UpCast at email@example.com.
To submit an infringement notification, you must be the copyright or trademark owner or celebrity or an authorized agent of the copyright or trademark owner or celebrity, and must provide UpCast’s General Counsel’s Office with the following information:
- Identification of the copyrighted work, trademark or other intellectual property that you claim has been infringed (e.g., a link to your original work or clear description of the materials allegedly being infringed upon);
- Identification of the infringing material and information reasonably sufficient to permit UpCast to locate the material on the Websites;
- For notifications of trademark or trade dress infringement,
- a copy of the relevant trademark or trade dress registration(s) from the U.S. Patent and Trademark Office; and
- description of confusion (e.g., passing off as your company, including specific descriptions of content or behavior).
- Your address, telephone number, and email address;
- 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 above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf; and
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest.
UpCast should be contacted via email at firstname.lastname@example.org or in writing at the following address:
UpCast Talent, Inc
604 Arizona Ave
Santa Monica, CA 90401
With respect to claims of copyright infringement, we will respond expeditiously investigate the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content. Please be aware that under section 512(f) of the DMCA, 17 U.S.C. 512(f), you may be liable for any damages, including costs and attorneys’ fees incurred by us or our users, if you knowingly materially misrepresent that material or activity is infringing. If you are unsure whether the material you are reporting is, in fact, infringing, you may wish to contact an attorney before filing a notification with UpCast.
UpCast’s response to notices of alleged infringement may include the removal or restriction of access to the allegedly infringing material. If we remove or restrict access to user content in response to a notice of alleged infringement, UpCast will make a good faith effort to contact the affected account holder with information concerning the removal or restriction of access, along with instructions for filing a counter-notification (as applicable).
- User Accounts
You understand that you may not (i) select or use a name of another person with the intent to impersonate that person; (ii) use the rights of any person without authorization; or (iii) use a name that UpCast, in its sole discretion, deems inappropriate. You agree that any information that you provide to the Websites, including but not limited to User Information, shall be true and accurate and current, and you are responsible for updating such information to keep it true, accurate and current. If you create a user account with the Websites, you accept responsibility for all activities that occur under your account or password and you agree you will not sell, transfer or assign your user account. You are responsible for maintaining the confidentiality of your password if any, and for restricting access to your computer so that others may not access any password-protected portion of the Websites (including the Paid Services) using your name, username or password in whole or in part.
Each user name permits one person to access the password-protected portion of the Websites (including the Paid Services), and you shall not share the username and password with any third party. You shall be solely responsible for any and all use of the Websites, including without limitation, any and all charges incurred by a third party, under or using your username and password. If at any time you should learn or suspect that your password has been compromised, you shall promptly notify Customer Service at 1-310-765-1933 and confirm such notice in writing. Upon receiving such telephonic and written notice, UpCast will assign a new password to you without charge.
You agree that any unauthorized use of the Websites (or any Content derived therefrom) by you or by anyone using your username or password may result in immediate suspension or termination of your user account by UpCast, in its sole and absolute discretion, without refund of any pre-paid fees. You represent and warrant that the information provided during the subscription process is true and accurate and agrees to update the information thereafter in the event of any changes. UpCast reserves the right to terminate your access to and use of the Websites in the event that you provide any false information to UpCast as part of the subscription process, without refund of any pre-paid fees. In the event of such termination, you will continue to be liable for applicable fees for the period prior to termination, together with such other remedies as to which, UpCast may be entitled.
- Subscription Terms, Fees, and Payments; Automatic Renewal and Cancellation
UpCast offers month-to-month subscriptions on www.getupcast.com to all Paid Services.
All subscriptions are automatically renewing. This means that once you become a subscriber, your subscription will be automatically renewed and your credit or debit card will be charged based on the subscription program (annually, semi-annually, or monthly) you have chosen unless you opt out or cancel by following the instructions in these Terms of Service. By subscribing to the Paid Services, you authorize UpCast to charge the applicable recurring subscription fees to your credit or debit card. In some cases, when you subscribe to a free trial of the Paid Services, you will be asked to authorize, and by accepting these Terms of Service you hereby expressly authorize, UpCast to charge the applicable recurring subscription fees to your credit or debit card upon the expiration of the free trial.
When you initially subscribe to the Paid Services, your credit or debit card will be charged immediately for the initial term of the subscription at the then-current fee for the applicable subscription period. When you initially subscribe to a free trial of the Paid Services, you will be not charged for the initial term of the free trial. Unless you notify UpCast of your decision to terminate your subscription or, as applicable, your free trial, your subscription will automatically renew at the end of each subscription term or free trial (if applicable) at the then-current fee.
You will be charged in advance for the renewal term of the subscription service (or initial term, in the case of a renewal following the expiration of an applicable free trial) on your applicable billing date (the “Billing Date”), which will be the corresponding monthly, semi-annual or annual anniversary of the activation date of your subscription. If, however, the activation date of your subscription (or, as applicable, your free trial) is on the 29th, 30th or 31st day of a month, and your Billing Date does not exist in a particular month because there are fewer than thirty-one (31) days in the month payment is due, your Billing Date for that particular renewal (or initial term, in the case of a renewal following the expiration of an applicable free trial) will be on the last day of the month in which your Billing Date would otherwise be. Each charge on the applicable Billing Date applies to the subscription period immediately following the Billing Date (e.g., a charge for a monthly subscription applies to the month immediately following the Billing Date). You understand that any applicable sales or use taxes will be payable by you, and may be included in each periodic statement.
UpCast may, in its sole discretion, suspend access to your account or deactivate your account without notice to you if UpCast is unable to process your payment or if payment is past due, regardless of the amount. You agree to pay any outstanding balance in full within thirty (30) days of cancellation or termination of your subscription. You may update any of your billing information (including a change to your desired billing payment method) through your account settings on getupcast.com.
BY COMPLETING THE ENROLLMENT PROCESS, YOU UNDERSTAND AND AGREE THAT UNLESS AND UNTIL YOU CANCEL YOUR SUBSCRIPTION TO THE PAID SERVICES:
(A) YOUR SUBSCRIPTION TO THE PAID SERVICES WILL AUTOMATICALLY RENEW AT THE END OF THE SUBSCRIPTION PERIOD AND CONTINUE FOR ANOTHER SUBSCRIPTION PERIOD;
(B) YOU WILL AUTOMATICALLY BE BILLED AT THE START OF EACH NEW SUBSCRIPTION PERIOD; AND
(C) THAT PERIODIC CHARGES FOR EACH NEW SUBSCRIPTION PERIOD WILL BE AUTOMATICALLY BILLED TO YOUR DESIGNATED BILLING PAYMENT METHOD.
Opting Out Of Renewal
YOU MAY TERMINATE ENROLLMENT IN AUTOMATIC RENEWAL AT ANY TIME BY EMAILING HELP@UPCAST.COM, OR CALLING 1-310-765-1933. YOUR SUBSCRIPTION TO THE PAID SERVICES SHALL BE DEEMED TERMINATED ON THE LAST DAY OF THE THEN IN EFFECT SUBSCRIPTION PERIOD. YOU AGREE THAT EXCEPT AS PROVIDED HEREIN, THE SUBSCRIPTION FEE IS NON-REFUNDABLE ONCE PAID.
Unauthorized Charges: YOU ACKNOWLEDGE AND AGREE THAT YOU, AND NOT UPCAST, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS BILLED TO YOUR CREDIT OR DEBIT CARD BY A THIRD PARTY WHICH WAS NOT AUTHORIZED BY YOU.
Billing Discrepancies. Unless you notify UpCast of any discrepancies within sixty (60) days after they first appear on your payment statement, they will be deemed accepted by you and you release UpCast from all liabilities and claims of loss resulting from any such error or discrepancy.
Fees Subject to Change. UpCast may change the fees and charges then in effect by giving you notice in advance or by posting the changed fees online at www.getupcast.com. It is your responsibility to check the current fees. All fees and charges incurred in connection with your username(s) and password(s) will be billed to the credit or debit card you designate during the registration process. If you want to designate a different credit or debit card or there is a change in your credit or debit card validity or expiration date, you must update your information through your account settings on www.getupcast.com.
Cancellations and Refunds. You may cancel a free trial at any time during the free trial period and incur no charge. After the free trial is complete, you will be charged at the rate and schedule selected when you enrolled in the trial. Monthly subscriptions are not eligible for a refund, but can be canceled to prevent additional future charges. For all initial purchases of subscriptions longer than one month, you may cancel prior to renewal to prevent future renewal charges; or cancel during the first five (5) days after renewal to remain eligible for a full refund on the renewal payment. If your subscription begins with a free trial and converts into an annual subscription, the five-day refund period begins once the free trial ends. If the cancellation occurs after the first five days or if the charge was for a monthly subscription, you will not receive a refund. For all renewals of subscriptions longer than one month, you may cancel within five days of the renewal date and receive a full refund; cancellations made after this period are not eligible for a refund. Monthly subscriptions (both initial subscriptions and renewals) may be canceled at any time but you will not receive a refund. If you cancel your subscription but are not eligible for a refund, you will retain access to the Website until your subscription expires. Cancellations may be made by emailing email@example.com or by calling customer service at 1-310-765-1933. Your cancellation must be received by end of business (5:00 p.m. Pacific Time) on the appropriate day as described above, or earlier. All refunds will be given to the original credit or debit card on which the purchase was made. Please allow a reasonable time for the refund to reach you or be charged back to your account.
- Additional Terms
In some instances, additional terms or end user license agreements apply to some services, products, software, competitions or promotions offered via the Websites. Such terms are posted in connection with the applicable service, product, software, competition or promotion and are in addition to these Terms of Service. UpCast may change, suspend or discontinue any aspect of the Websites at any time and without prior notice.
- Entire Agreement
- Equipment and Internet Access.
You understand and agree that you are responsible for providing all telephone, modem, Internet connection, intranet connection, extranet connection and other equipment necessary for you to access the Websites (including the Paid Services). You are solely responsible for and shall bear the costs of any such equipment and any fees or charges incurred to access the Websites (including the Paid Services) through an Internet access provider or other third-party services, including any applicable taxes.
- No Oral Agreements or Modifications.
There shall be no amendment or modification of these Terms of Service unless the same is in writing and signed by an authorized representative of UpCast. Oral agreements shall expressly be non-binding and unenforceable.
- Terms of Service Governs
It is understood and agreed by and between the parties that if there is any conflict between these Terms of Service and any other document not signed by UpCast, these Terms of Service will govern.
- Governing Law
Your rights and obligations, and all matters contemplated by these Terms of Service shall be governed by the laws of the United States of America and by the internal substantive laws of the State of Delaware, without respect to its conflict of laws principles, as if a contract wholly entered into and wholly performed within the State of Delaware. These Terms of Service will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
- Dispute Resolution.
Please read this section carefully. It affects rights that you may otherwise have. It provides for resolution of most disputes through arbitration instead of court trials and class actions. Arbitration is final and binding and subject to only very limited review by a court. This arbitration clause shall survive termination of this agreement.
If a dispute arises between you and UpCast, our goal is to provide you a neutral and cost effective means of resolving the dispute quickly.
- Binding Arbitration. If the parties fail to resolve a Claim through negotiations within the above thirty (30) day period, you and UpCast agree that, except as otherwise expressly provided herein, all Claims will be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party, except that (a) you may take Claims to small claims court if they qualify for hearing by such a court, or (b) you or UpCast may choose to pursue Claims in court if the Claims relate solely to the collection of any debts you owe to UpCast. However, even for those Claims that may be taken to court, you and UpCast both waive any Claims for punitive damages and any right to pursue Claims on a class or representative basis. Any election to arbitrate by one party will be final and binding on the other.
- Arbitration Procedures. The arbitration of any dispute or claim shall be conducted in accordance with the American Arbitration Association (“AAA”) as modified by this agreement. The AAA Rules and information about arbitration and fees are available upon request from the AAA (call 1-800-778-7879) or online at adr.org. You and we agree that this agreement evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the U.S. Federal Arbitration Act and federal arbitration law.
An arbitrator may not award relief in excess of or contrary to what this Agreement provides, order consolidation or arbitration on a class wide or representative basis, or award punitive damages or any other damages aside from the prevailing party’s actual economic damages, except that the arbitrator may award on individual basis damages expressly required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. In any arbitration applying the AAA Rules applicable to large/complex cases, the arbitrator(s) must also apply the Federal Rules of Evidence, and the losing party may have the award reviewed in accordance with the review procedures set forth in the AAA Rules. Any arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.
As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in these Terms of Service, (i) you and UpCast may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision will be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law. BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND UPCAST ARE WAIVING THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
- Arbitration Fees. All administrative fees and expenses of an arbitration will be divided equally between you and us, except that for claims of less than $500, you will be obligated to pay $25 and we will pay all other administrative costs and fees. In all arbitrations, each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration.
- Location. The arbitration will take place in your hometown area if you so notify UpCast in your notice of arbitration or within five (5) days following receipt of UpCast’s arbitration notice. In the absence of a notice to conduct the arbitration in your hometown area, the arbitration will be conducted in Los Angeles, CA, unless the parties agree to video, phone or Internet connection appearances.
- Limitations. You and UpCast agree that any arbitration will be limited to the Claim between UpCast and you individually. YOU AND UPCAST AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION WILL BE JOINED WITH ANY OTHER.
- Exceptions to Negotiations and Arbitration. You and UpCast agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claims seeking to enforce or protect, or concerning the validity of, any of your or UpCast’s intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such courts’ jurisdiction in lieu of arbitration, provided that any such action or proceeding must be commenced no later than one year after the accrual of the Claim giving rise thereto.
- Severability. You and UpCast agree that if any portion this “Dispute Resolution” section is found illegal or unenforceable, that portion will be severed and the remainder of this section will be given full force and effect. If for any reason the arbitration clause herein is deemed inapplicable or invalid, you and UpCast both agree (i) that all Claims will be exclusively decided either the courts of the State of Delaware, and you and UpCast agree to submit to the personal jurisdiction of those courts, and (ii) that you and UpCast both waive, to the fullest extent allowed by law, any claims to recover punitive or exemplary damages and any right to pursue any claims on a class or consolidated basis or in a representative capacity. By using the Websites, you accept generally and unconditionally the jurisdiction of the aforesaid courts and irrevocably waives any objection to such jurisdiction.
- Recovery of Fees.
You agree that if UpCast takes action (by itself or through its representatives) to enforce any of the provisions of these Terms of Service against you, including collection of any amounts due hereunder, UpCast shall be entitled to recover from you (and you agree to pay), UpCast’s reasonable and necessary attorney’s fees and any costs of any litigation, in addition to all sums to which UpCast is entitled or any other relief, at law or in equity, except as otherwise limited herein..
- Disclaimers of Warranty
Please read the following — it is an important disclaimer:
The Site is provided “As Is”
THE WEBSITES (INCLUDING THE PAID SERVICES) AND ALL CONTENT PROVIDED THROUGH THE SAME ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OR CONDITION, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, UPCAST, AND EACH OF ITS JOINT VENTURERS, LICENSORS, SUPPLIERS, VENDORS, DISTRIBUTORS, ADVERTISERS AND OTHER CONTRACTING PARTIES, SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FURTHER, NO WARRANTIES WILL BE IMPLIED BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE.
YOU ACKNOWLEDGE THAT ALL INFORMATION AND SERVICES PROVIDED IN CONNECTION WITH THE WEBSITES ARE COMPILED FROM AND DISTRIBUTED BY SOURCES THAT ARE OFTEN BEYOND THE CONTROL OF UPCAST.
UPCAST MAKES NO REPRESENTATION OR WARRANTY THAT (I) THE WEBSITES WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS, (II) THE WEBSITES WILL BE AVAILABLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE OR ERROR-FREE, (III) ANY RESULTS OR INFORMATION THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITES WILL BE ACCURATE, TIMELY, COMPLETE OR RELIABLE, (IV) ANY ERRORS OR DEFECTS IN THE WEBSITES WILL BE CORRECTED, OR (V) THE WEBSITES, NETWORKS OR SERVERS THAT MAKE THE WEBSITES AVAILABLE ARE FREE OF VIRUSES, CLOCKS, TIMERS, COUNTERS, WORMS, SOFTWARE LOCKS, TROJAN HORSES, TRAP DOORS, TIME BOMBS OR ANY OTHER HARMFUL CODES, INSTRUCTIONS, PROGRAMS OR COMPONENTS. OPERATION OF THE WEBSITES MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF UPCAST’S CONTROL INCLUDING, BUT NOT LIMITED TO, TELECOMMUNICATIONS NETWORK DISRUPTIONS. UPCAST IS NOT RESPONSIBLE AND WILL HAVE NO LIABILITY FOR ANY FAILURES OF THE INTERNET OR ANY DATA OR TELECOMMUNICATIONS EQUIPMENT, SYSTEM OR NETWORK USED IN CONNECTION WITH THE WEBSITES. YOU ACKNOWLEDGE THAT THE ENTIRE RISK ARISING OUT OF THE USE, INABILITY TO USE OR PERFORMANCE OF ANY OF THE WEBSITES REMAINS WITH YOU TO THE MAXIMUM EXTENT PERMISSIBLE UNDER LAW. YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE WEBSITES (INCLUDING THE PAID SERVICES) IS TO TERMINATE YOUR ACCOUNT AND DISCONTINUE USE OF THE WEBSITES.
- Limitation of Liability; Exclusive Remedy.
PLEASE READ THE FOLLOWING — IT IS AN IMPORTANT LIMITATION OF UPCAST’S LIABILITY:
YOU SPECIFICALLY ACKNOWLEDGE THAT UPCAST SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
You agree to and shall defend, indemnify and hold harmless UpCast, its affiliates, subsidiaries, officers, directors, employees, and agents from any claims and expenses, including reasonable legal fees, related to any breach of these Terms of Service by you or your use of the Websites or any Content.
If you have any questions about these Terms of Service or your rights or UpCast’s obligations relating to the Websites or the Paid Services, please email us at firstname.lastname@example.org or you may contact us by mail at:
UpCast Talent, Inc
604 Arizona Ave
Santa Monica, CA 90401
- Electronic Communications.
You acknowledge and agree that by accessing or using the Websites, or by clicking on the “I AGREE” button (or similar buttons or links as may be designated by UpCast to show your acceptance of the Terms of Service), you are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies, and records of transactions initiated or completed through the Websites.
These Terms and the policies incorporated herein are the entire agreement between you and UpCast. They supersede any and all prior or contemporaneous agreements between you and UpCast relating to your use of the website, mobile app or the services.
Copyright (c), 2016, UpCast Talent, Inc. All rights reserved.