Effective date: July29, 2021
To register for the Services and create an account, you must complete the registration process by providing Upburst with requested information including your name, email address and billing information. You agree to provide us with complete and accurate information when you register for the Services, and to keep such information up to date.You shall protect your username and password and are solely responsible for activities that occur under or through your account, including activities initiated by third parties, whether or not such activities are authorized by you. If you allow a third party to access the Services on your behalf, you shall ensure that such third party is abides by the terms of this Agreement. You agree to notify Upburst immediately of any unauthorized use of your account or any other breach of security relating to your account or your use of the Services.We may access your account, or information associated with your account, to provide support or maintenance, for security-related reasons, or any other business purpose. You acknowledge and consent to such access.
Services are available under a range of subscription plans (a “Plan”). Each plan includes a maximum amount of advertising spend that may be recorded by our Services in any given month of the subscription period, and an associated cost for each subscription period (e.g. monthly, annually).You will select a Plan during registration for the Services, which may begin with a Free Trial period. After the Free Trial period, you will be billed for the Plan you have chosen at the beginning of the subscription period chosen. At the end of your subscription period, your Plan will automatically renew for a subscription period equal to your prior subscription period.Should your usage of the Services exceed the maximum amount of advertising spend specified for the Plan you have chosen, you will be billed according to overage fees associated with your plan.In the event you cancel your Plan, no refunds or credits will be provided for partial or unused months of the Services. Any discounts applied to a previous subscription may not apply to a renewed subscription, including to any automatic renewals.You agree to pay all fees applicable to your Plan, any other fees for additional services you may purchase, and any applicable taxes in connection with your use of the Services. We will bill the fees due under your Plan to the credit card you provide to us during registration (or to a different credit card if you change your payment information). You acknowledge that the amount billed for each renewal period may vary due to promotional offers, changes in your Plan, and changes in applicable taxes, and you authorize us to bill you the corresponding amounts. We reserve the right to deactivate your access to the Services for failure to pay applicable fees as described in this Agreement. Upburst has a zero tolerance policy for chargebacks. Any customer who disputes a credit card payment that is found to be valid will be permanently banned from using the Service. Unless otherwise stated, all fees are stated in U.S. Dollars.
You may not use the Service for any illegal or unauthorized purpose, nor violate any applicable laws (including but not limited to copyright laws). You are solely responsible for any and all activities that relate to your Account.
You may not use the Service in connection with any adult or pornographic service. This includes use on a website containing primarily adult or pornographic content, or advertising on a website containing primarily adult or pornographic content.
You may not use the Service in any manner that violates the Terms of Service, Acceptable Usage Policy, or other such policies of companies you advertise with.
You may not use the Services in connection with any website or portion of a website directed at individuals under the age of 13, or any website or portion of a website that you have reason to know is used primarily by individuals under the age of 13.
You may not (and you may not allow any third party to): (i) copy, modify, adapt, translate or otherwise create derivative works of the Service; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Service, except as expressly permitted by the law in effect in the jurisdiction in which you are located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Service; (iv) remove any proprietary notices or labels on the Service or placed by the Service; or (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service.Upburst, in its sole discretion, may accept or reject for any reason any individual as a user of the Service.
As between you and Upburst, you shall retain ownership of any information, data and statistics that Upburst obtains from your website, such as raw data and log files generated by and/or provided to the Services.You hereby grant to Upburst a royalty-free, non-exclusive, irrevocable, right and license to access your registered web page(s) and to access and log (a) any information concerning users’ actions, entries, or activities on your web page(s), (b) any information sent to you by users’ web browsers concerning users’ web activities immediately prior to visiting your web page(s) (e.g., URL information and HTTP header information), and/or (c) any data or other information you provide to Upburst (collectively “Client Data”) for the purposes of (i) providing you with analytics and other functions related to the Services; (ii) analyzing and improving the Services; and/or (iii) compiling aggregate data derived from your use of the Services to compile statistics, metrics, insights and general trend data about the Services for, among other things, Upburst’s marketing and promotional purposes. This information will be presented only in aggregated form, and we will not share specific site data that identifies you or your visitors without your permission.You represent and warrant that you have all rights, licenses, and consents required to license Client Data to Upburst on these terms, and further represent and warrant that this license does not infringe the rights of any third party or violate any applicable law or regulation.
The Services allow you to link anonymous dataregarding your Visitors’ activities and actions on your web page(s) withPersonally Identifiable Information that you have collected regarding theVisitor. You shall be solely responsible for the consequences of using,disclosing, or transmitting such Visitor data, including PersonallyIdentifiable Information.
You represent and warrant that:
- you will comply with all applicable laws, including, but not limited to, those followed regarding the transfer of Personally Identifiable Information from the European Economic Area and/or Switzerland to the United States under the U.S.–EU Privacy Shield framework and U.S.–Swiss Safe Harbor, respectively, relating to the collection, use and disclosure of Visitor data, including Personally Identifiable Information, to Upburst;
- you will provide all required notifications and obtain all required consents and authorizations from your website Visitors to permit Upburst to collect, obtain and/or use Visitor data, including Personally Identifiable Information, relating to Visitor use of your website, for the purposes of providing the Services;
- you will not use the Services to collect or analyze sensitive Personally Identifiable Information (e.g. personal health information, political opinions, religious or philosophical beliefs);
- You use third-party service providers to provide certain analytics and user interactions services to you in connection with your operation of such website, including the collection and tracking of certain data and information regarding the characteristics and activities of visitors to such website
- Visitors may opt-out of tracking by our Services by clearing their browser cookies
- you may disclose Visitor data, including Personally Identifiable Information, to certain such third-party services providers in order to obtain such services.
To the extent Client Data that includes Personally Identifiable Information sent by you through the Services or your use of the Services involves transferring Personally Identifiable Information outside the European Economic Area or Switzerland to any country not deemed by the European Commission as providing an adequate level of protection for personal data, the terms of the Data Processing Addendum (available through your account or upon request) shall apply to such Personally Identifiable Information and be incorporated into the Agreement. Client Data shall be hosted and persistently stored by Upburst or its third-party service providers in the United States. In providing the Services, Upburst may engage sub-processors to process Client Data, including, without limitation, any associated Personally Identifiable Information pursuant to this Agreement within the European Economic Area, the United States and in other countries and territories. Under no circumstances will Upburst be deemed a data controller with respect to Client Data under the Data Protection Act (European Directive 95/46/EC) or any relevant or replacement law or regulation of any Member State as defined therein. “Personally Identifiable Information” means any Client Data processed by Upburst pursuant to the Agreement, relating to an identified or identifiable natural person; where an “identifiable natural person” means an individual who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to the individual’s physical, physiological, mental, economic, cultural or social identity.
The information and services included in or available through the Service may include inaccuracies or typographical errors.Changes are periodically added to the information herein. Upburst may make improvements and/or changes in the Service at any time, with or without notice. Upburst does not represent or warrant that the Service will be uninterrupted or error-free, that defects will be corrected, or that the Service or any other software on its servers are free of viruses or other harmful components. You specifically agree that Upburst shall not be responsible for unauthorized access to or alteration of the Client Data or data from your Website. Upburst does not guarantee storage of Client Data. Storage space allocated to you is subject to agreement with Upburst or the amount of available space.
Upburst does not guarantee the Service will be operable at all times or during any down time (1) caused by outages to any public Internet backbones, networks or servers, (2) caused by any failures of your equipment, systems or local access services, (3) for previously scheduled maintenance or (4) relating to events beyond Upburst’s control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Upburst or your servers are located or co-located.Complete accuracy in all aspects of your reports or other Client Data at all times also is not guaranteed.
THE SERVICE, THE SOFTWARE AND REPORTS ARE PROVIDED“AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY UPBURST, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE, THE SOFTWARE, THE DOCUMENTATION AND REPORTS, INCLUDING WARRANTIES OF QUALITY,PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. UPBURST DOES NOT WARRANT THAT THE SERVICE, THE SOFTWARE OR REPORTS WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
IN NO EVENT WILL UPBURST BE LIABLE TO THE USER OR THIRD PARTIES FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF PROFITS OR LOSS, CORRUPTION AND/OR ALTERATION OF DATA) ARISING OUT OF OR IN ANY WAY RELATED TO YOUR DATA AND/OR YOUR USE OF THE SERVICE AND/OR YOUR ACCOUNT, WHETHER IN AN ACTION IN CONTRACT, TORT, EQUITY OR OTHERWISE.
YOU VOLUNTARILY ENGAGE IN THE ACTIVITY OF INTERNET USE AND BEAR THE RISKS ASSOCIATED WITH THAT ACTIVITY. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE DONE TO YOUR COMPUTER OR YOUR DATA THAT RESULTS FROM SUCH ACTIVITY. IN NO EVENT WILL UPBURST HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR UNAUTHORIZED ACCESS TO OR USE, ALTERATION, CORRUPTION, THEFT OR DESTRUCTION OF YOUR DATA AND/OR YOUR ACCOUNT.
UPBURST’S LIABILITY IS EXPRESSLY LIMITED FOR ANY REASON AND UPON ANY CAUSE OF ACTION TO THE AMOUNT YOU ACTUALLY PAID TO UPBURST FOR THE SERVICE DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU CLAIM THE CAUSE OF ACTION ACCRUED.
SOME JURISDICTIONS’ LAWS PROHIBIT THE FOREGOING LIMITATION OF LIABILITY PROVISION. TO THE EXTENT THAT YOU LIVE IN A JURISDICTION THAT REFUSES TO ENFORCE THE FOREGOING PROVISION, UPBURST’S LIABILITY IS LIMITED TO THE GREATEST EXTENT ALLOWED BY THE LAW OF THAT JURISDICTION.
You agree to indemnify, defend and hold harmless Upburst from all damages, liabilities, claims and expenses, including without limitation attorneys’ fees and costs, arising from or related to Your data, Your use of the Service and/or any breach of these Terms by You. You further agree to defend, indemnify and hold harmless Upburst from all damages, liabilities, claims and expenses, including without limitation attorneys’ fees and costs, arising from or related to any claims by third parties that Your data or Your use of the Service infringes upon, violates or misappropriates any of their Intellectual Property Rights or discloses their Proprietary Information.
We reserve the right to terminate Your account and use of our Services at any time and for any reason so long as permitted by law. An account terminated by Upburst will not be backed-up for any reason and may be immediately terminated from Upburst’s servers, and will not be eligible for any refunds of monies paid.
You agree that all disputes related in any way toor arising from Your use of the Service shall be governed, without respect to conflict of law principles, by the laws of New Zealand.
You agree that regardless of any statute or law tothe contrary, any claim or cause of action that you may wish to assert relatedin any manner to the Services must be filed within one (1) year after such claimor cause of action accrued or be forever barred.
Recognizing the global nature of the Internet, youagree to comply with all local rules regarding online conduct and acceptablecontent. Without limiting the foregoing, you agree to comply with allapplicable laws regarding the transmission of data exported to or from NewZealand, United States or the country in which you operate or reside and tocomply with any other local laws affecting the Services.