AGENT AGREEMENT
THIS AGENT AGREEMENT (“AGREEMENT”) GOVERNS YOUR USE OF OUR SERVICES.
PLEASE READ THROUGH THIS AGREEMENT CAREFULLY BEFORE REGISTERING FOR THE UP SIGN DOWN, INC. COMMUNITY. PARTICIPATION IN THE UP SIGN DOWN, INC. COMMUNITY INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT REGISTER FOR OR PARTICIPATE IN THE UP SIGN DOWN, INC. COMMUNITY.
You may not access the Services if You are Our direct competitor. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement is effective between You and Us as of the date of You accepting this Agreement.
1. DEFINITIONS
“Affiliate”means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agent,” “You”or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Confidential Information”means confidential or other proprietary information that is disclosed by Up Sign Down or You to the other party under this Agreement, including without limitation, software designs, business and product plans, and other confidential business information, which confidential information is identified as confidential by the disclosing party. Confidential Information shall not include information that: (i) is or becomes public knowledge without any action by, or involvement of, the recipient of the information; (ii) is disclosed by the recipient with the prior written approval of the disclosing party; (iii) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, or (iv) Agent Content.
“Force Majeure”means any act of God, fire, natural disaster, accident, act of government, labor difficulty, sabotage, failure of Installer’s or subcontractors or shortages or unavailability of energy, material or supplies or any other cause beyond the reasonable control of a party.
“Installer”means the signpost installer(s) that You order Products from on the Up Sign Down Site.
“Malicious Code”means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Marks”means all proprietary indicia, trademarks, service marks, or trade names Up Sign Down or Agent may adopt from time to time to identify Agent or the Up Sign Down Site.
“Order Form”means the documents for placing orders hereunder, including addenda thereto, that are entered into between You and an Installer from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Installer agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.
“Product”means the materials, supplies and services offered and sold by Installer in the ordinary course of business on the Up Sign Down Site.
“Services” means the products and services that are ordered by You under an Order Form and made available by Installer online via the customer login link and/or other web pages designated by Us.
"Users" means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You. Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.
“Up Sign Down,” “We,” “Us”or “Our” means Up Sign Down, Inc.
“Up Sign Down Site”means any Internet marketplace created, operated, enabled, or hosted by Up Sign Down or otherwise utilizing Up Sign Down technology to facilitate the purchase and sale of materials, supplies and services.
2. SERVICES, TRANSACTION AND SETTLEMENT TERMS
(a) Provision of Services. We shall make the Services available to You pursuant to this Agreement and pursuant to the relevant Oder Form(s). You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
(b) Product Fulfillment. All of Your Product orders shall be fulfilled according to terms established between You and Installer. Up Sign Down shall at no time have title to Product. Product fulfillment by the Installer, and the timing and payment for an order by You shall be the sole responsibility of You and the Installer. Up Sign Down only facilitates transmission of the Installer approved invoicing and shall not be responsible for collections or delays in the remittance process made through third party banking or other financial settlement systems. Up Sign Down is not an agent of either You or Installers for the fulfillment or settlement of their transactions over the Up Sign Down Site.
Following the delivery and installation of the Product to You, Installer, not Up Sign Down, shall be solely responsible for (a) dealing with You in connection with all Product warranty issues, claims, coverage, liability, and disputes; (b) dealing with You on any issue relating to accounting or inventory discrepancies; and (c) addressing Your problems, questions, concerns, claims and losses in the event of: (i) any Product malfunction, defect, damage, maintenance, repair or service issue, or (ii) any other problem, question or issue relating to the Products which may arise from You, including, but not limited to sign inventory, signpost inventory, proper placement of sign, proper sign used, accessories (i.e. flyer boxes, riders), timely placement, timely repair, timely removal, accuracy of signpost, and accuracy of sign. Up Sign Down makes no warranties to the You regarding Installer’s Products.
(c) Relationship. You and Up Sign Down are independent of one another and have no partnership, agency, or similar relationship. Up Sign Down only provides a Product listing and transaction facilitation medium for You to purchase Installer’s Product through an Up Sign Down Site and neither You nor Up Sign Down shall have any authority to assume or create any obligation or responsibility on behalf of the other.
3. UP SIGN DOWN’S OBLIGATIONS
(a) Sales. Up Sign Down will use commercially reasonable efforts to maintain a substantial listing of Installer Content on the Up Sign Down Site and to facilitate Installer invoicing of transactions initiated on the Up Sign Down Site. Up Sign Down will facilitate Your ordering and Installer invoicing of Product orders. Up Sign Down makes no warranties to the Customer regarding the Installer’s Product.
(b) Control over Content. Up Sign Down retains sole control over the programming and content of the Up Sign Down Site.
4. THIRD PARTY CONTENT, WEBSITES, AND SERVICES
The Up Sign Down site and Content available through its website may contain features and functionalities that may link You or provide You with access to third party content which is completely independent of Up Sign Down, including websites, directories, servers, networks, systems, information and databases, applications, products or services, and the Internet as a whole.
Your interactions with organizations and/or individuals found on the Up Sign Down Site including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and such organizations and/or individuals. You should make whatever investigation You feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. Your relationship with other individuals, entities, or organizations shall be governed by the terms and use policies of those websites as well.
You agree that Up Sign Down shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between participants on this website, or between users and any third party, You understand and agree that Up Sign Down is not under any obligation to become involved. In the event that You have a dispute with one or more other users, You hereby release Up Sign Down, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes.
5. PRIVACY AND INFORMATION DISCLOSURE
Your use of the Up Sign Down Site signifies acknowledgement of and agreement to Our Privacy Policy. You further acknowledge and agree that Up Sign Down may, in its sole discretion, preserve or disclose Your information, including, but not limited to: (i) E-mail addresses; (ii) IP addresses; (iii) Timestamps, (iv) Installation property information, such as address and dates; and (v) Other user information, for marketing purposes either by Up Sign Down or its Affiliates if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any of Your content violates the rights of third-parties; (d) respond to claims that contact information (e.g. phone number, street address) of a third-party has been posted or transmitted without their consent or as a form of harassment; (e) protect the rights, property, or personal safety of Up Sign Down, its users or the general public.
6. TERM AND TERMINATION
(a) Initial Term. Initial Term of this Agreement shall commence on the Effective Date and end on the 3rd year (anniversary) thereof. Thereafter, this Agreement shall be automatically renewed (“Renewal Term”) every 24 months unless either party gives the other party written notice of its intention not to renew at least thirty (30) days prior to the expiration of the Initial Term or the then current Renewal Term. The Initial Term or Renewal Term shall be referred to herein as the “Term”.
(b) Termination. You agree that Up Sign Down, in its sole discretion, has the right (but not the obligation) to delete or deactivate Your account, block your e-mail or IP address, or otherwise terminate Your access to or use of the Services (or any part thereof), immediately and without notice, for any reason, including, without limitation, if Up Sign Down believes that You have acted inconsistently with the letter or spirit of the terms of this Agreement even if Up Sign Down is misinformed or relies on unverified information or data. Further, You agree that Up Sign Down shall not be liable to You or any third-party for any termination of Your access to the Up Sign Down Site. Further, You agree not to attempt to use the Up Sign Down Site after said termination.
7. DISCLAIMER OF WARRANTY
THE SYSTEM, INCLUDING ALL SERVICES, SOFTWARE AND HARDWARE, AND UP SIGN DOWN SITE PROVIDED BY UP SIGN DOWN HEREUNDER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. UP SIGN DOWN WILL NOT BE HELD RESPONSIBLE FOR ANY DELAYS THAT MAY BE CAUSED BY THE SOFTWARE PROGRAM. UP SIGN DOWN MAKES NO WARRANTY WITH RESPECT TO THE SYSTEM SERVICES, HARDWARE, SOFTWARE OR THE UP SIGN DOWN SITE PROVIDED HEREUNDER, AND EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
8. COOKIES
When You visit the Up Sign Down Site, We may store some information on Your computer. This information will be in the form of a "cookie" or “pixel tag” or similar file and can help Us maintain and improve Our Site in many ways. A “pixel tag” is a web bug that is embedded in a web page or e-mail and is usually invisible to the user but allows checking that a user has viewed the page or e-mail. A "cookie" is a small amount of data that is transferred to Your browser by a Web server and can only be read by the server that gave it to You. It functions as your identification card, recording such things as Internet addresses, passwords, and preferences. It cannot be executed as code or deliver viruses. With most Internet browsers, you can erase "cookies" from Your computer hard drive, block all "cookies," or receive a warning before a "cookie" is stored. Please refer to Your browser instructions to learn more about these functions.
9. INTELLECTUAL PROPERTY RIGHTS
(a) Reservation of Rights in Services.Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
(b)Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
(c)Your Data. Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein.
(d) Suggestions.We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
10. CONTENT
You recognize that You are solely responsible for the substance and content of any information that You make available, including, without limitation, through the posting of content on the Up Sign Down Site through a listing or otherwise. All of such content is Your responsibility. Up Sign Down will not be responsible, and cannot independently verify, and makes no representations or warranties concerning, the content information provided or received by You through Your use of the Services. Any information provided by Up Sign Down in connection with its provision of the Services relating to property of others has been obtained directly from the owners of such property or from sources believed by the Us to be reliable. In connection with Your use of any information made available to You through the Services, You shall be responsible for any actions taken in reliance on such information and, accordingly, You are recommended to make Your own due-diligence inquiries concerning the veracity of such information and Up Sign Down assumes no liability therefor. Up Sign Down has the right to monitor the content that You make available on the Up Sign Down Site or other users make by means of any Service, but shall have available on the Up Sign Down Site. You agree that if Up Sign Down in its sole discretion deems any content made available by You to be unlawful, fraudulent, unacceptable, offensive, obscene or otherwise objectionable, Up Sign Down has the right, but not the obligation, to remove or deny access to such content. You expressly agree that Up Sign Down shall not be liable to You for any action We take to remove or restrict access to such material, nor for any action taken to restrict access to material posted in violation of any law, regulation or rights of a third party, including, but not limited to, rights under the copyright law and prohibitions on libel, slander and invasion of privacy. Up Sign Down Company has the right to take all reasonable actions to remove or restrict access to any such material, including restriction, suspension or termination of Your access privileges and/or deletion of the objectionable material.
11. PROHIBITED USES
You expressly agree not to use Up Sign Down’s Services in a manner that is inconsistent with these terms of use, prohibited by any law or regulation, or to facilitate the violation of any law or regulation. You acknowledge that prohibited conduct includes, but is not limited to, use of any of the Services to invade the privacy of third parties, impersonation of the Up Sign Down's personnel or other parties or entities, transmitting abusive, profane, libelous, slanderous, threatening or otherwise harassing material via e-mail, chat services or bulletin boards. You also agree not to use the Services to (i) solicit other members to patronize services or purchase goods from third parties; (ii) violate the security of the Services; or (iii) attempt to utilize another user's account name or persona without authorization from that user.
12. USER INFORMATION
(a) You certify to the Company that you are not a minor (i.e., that You are at least eighteen (18) years of age).
(b) For purposes of identification, billing and marketing, You agree to provide Up Sign Down with accurate, complete, and updated information required by the Membership Profile, including your legal name, address, telephone number(s), and applicable payment data. You agree to notify Up Sign Down within ten (10) days of any changes in this Profile information. Failure to comply with this provision may result in immediate suspension or termination of Your right to use the Services.
(c) You are solely responsible for maintaining the confidentiality of your passwords, and agree that Up Sign Down will have no obligations with regard thereto.
13. LIMITATION OF LIABILITY
(a) UP SIGN DOWN AND ITS AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, AND UP SIGN DOWN EXPRESSLY DISCLAIMS ANY DAMAGES YOU SUFFER, FOR ANY LOSS OF BUSINESS, PROFITS, GOODWILL, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR ANY DIRECT, INDIRECT, SPECIAL EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF UP SIGN DOWN IS AWARE OF THE RISK OF SUCH DAMAGES, THAT RESULT IN ANY WAY FROM YOURS USE OF OR INABILITY TO USE THE UP SIGN DOWN SITE, AN EVENT OF FORCE MAJEURE OR THAT RESULT FROM ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION, SYSTEM RELIABILITY OR ANY OTHER FAILURE OF PERFORMANCE OF THE UP SIGN DOWN SITE, HARDWARE, OR SOFTWARE USED OR PROVIDED HEREUNDER, OR THAT RESULT FROM THE MANUFACTURE, SALE, DISTRIBUTION OR USE OF THE PRODUCTS.
(b) UP SIGN DOWN SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES, FOR ANY LOSS OF BUSINESS, PROFITS, GOODWILL, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVIN IF UP SIGN DOWN IS AWARE FO THE RISK OF SUCH DAMAGES, THAT RESULT IN ANY WAY FROM UP SIGN DOWN’S PERFORMANCE OR NON-PERFORMANCE UNDER THIS AGREEMENT OR ANY BREACH OF THIS AGREEMENT BY UP SIGN DOWN.
(c) IN NO EVENT SHALL UP SIGN DOWN’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE AMOUNT YOU PAID FOR THE PRODUCT.
14. CONFIDENTIALITY
You shall be required to keep and maintain as confidential any of the information made available to You by Up Sign Down as may be provided by Up Sign Down from time to time; provided, however, You expressly acknowledge that Up Sign Down is not a fiduciary with respect to any information that You provide to Us and that the Up Sign Down has no reciprocal obligation of confidentiality to You other than as expressly provided in Up Sign Down's Privacy Policy, the terms of which are incorporated herein by reference.
15. WARRANTY AND INDEMNIFICATION
You represent and warrant to Up Sign Down that You will not transmit by means of the Services any materials of any kind which (i) violate, plagiarize, or infringe the intellectual property or contractual rights of any third party; (ii) are exported in violation of any law, rule, or regulation governing exports from the United States; (iii) contain libelous, defamatory, obscene, pornographic, abusive or otherwise unlawful material; (iv) contain software viruses or any other Malicious Code designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. You further represent and warrant to Up Sign Down that Your use of the Services will at all times comply with applicable laws, rules, and regulations. You hereby agree to indemnify, defend and hold harmless Up Sign Down and its employees, licensors, independent contractors, providers, subsidiaries and affiliates (collectively, the "affiliates"), from and against any and all liability and costs incurred by the affiliates in connection with any claim arising out of any breach by you of the foregoing representations, warranties and covenants, including, without limitation, attorneys' fees and costs. You shall cooperate as fully as reasonably required in the defense of any claim. Up Sign Down reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You and You shall not in any event settle any matter without the written consent of Up Sign Down.
16. GENERAL
(a) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law provisions.
(b) Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
(c) Force Majeure. Neither party shall be in default if performance of its obligations or attempts to cure any breach are delayed or prevented by reason of an event of Force Majeure.
(d) Waiver. None of the conditions or provisions of this Agreement shall be held to have been waived by either party, except by an instrument in writing signed by a duly authorized officer of the waiving party. Further, the waiver by either party of any right hereunder or the failure to enforce at any time any of the provisions of this Agreement, or any rights with respect thereto, shall not be deemed to be a waiver of any other rights hereunder or any breach of failure of performance of the other party.
(e) Modifications. Up Sign Down can, at its discretion, change these Terms. When terms are changed, Up Sign Down, Inc. will notify You by publishing these changes to the Up Sign Down Site. If You use the Site after Up Sign Down has published or notified You of the changes, You are agreeing to be bound by those changes. If you do not agree to be bound by those changes, You should not use the Up Sign Down Site.
(f) Severability. If any provision or provisions of this Agreement is, are or become invalid, is or are ruled illegal by any court of competent jurisdiction or is or are deemed unenforceable under then current applicable law in effect during the Term hereof, the remainder of this Agreement shall not be affected thereby, provided that a party’s rights under this Agreement are not materially affected. A provision which is as similar as possible in economic and business objectives as such invalid, illegal or unenforceable provision, but which is valid, legal and enforceable, shall be substituted in lieu of each such provision which is invalid, illegal, or unenforceable.
(g) Entire Agreement. This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.
(h) Miscellaneous. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. Any modifications to this Agreement must be made in writing executed by both parties, by Your online acceptance of updated terms, or after Your continued participation in the Program after such terms have been updated by Up Sign Down. This agreement shall be available on line at upsigndown.com. The failure to require performance of any provision shall not affect a party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties’ intention, and the remaining provisions of this Agreement will remain in full force and effect. You may not resell, assign, or transfer any of Your rights hereunder. Notwithstanding the foregoing, Up Sign Down may assign this Agreement to any affiliate at any time without notice. The relationship between Up Sign Down and You is not one of a legal partnership relationship, but is one of independent contractors. By accepting the contract online You agree to the terms set forth in this agreement.
RE Post Installers additional Terms & Conditions.
THIS AGENT AGREEMENT (“AGREEMENT”) GOVERNS YOUR USE OF OUR SERVICES.
PLEASE READ THROUGH THIS AGREEMENT CAREFULLY BEFORE REGISTERING FOR THE UP SIGN DOWN, INC. COMMUNITY. PARTICIPATION IN THE UP SIGN DOWN, INC. COMMUNITY INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT REGISTER FOR OR PARTICIPATE IN THE UP SIGN DOWN, INC. COMMUNITY.
You may not access the Services if You are Our direct competitor. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement is effective between You and Us as of the date of You accepting this Agreement.
1. DEFINITIONS
“Affiliate”means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agent,” “You”or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Confidential Information”means confidential or other proprietary information that is disclosed by Up Sign Down or You to the other party under this Agreement, including without limitation, software designs, business and product plans, and other confidential business information, which confidential information is identified as confidential by the disclosing party. Confidential Information shall not include information that: (i) is or becomes public knowledge without any action by, or involvement of, the recipient of the information; (ii) is disclosed by the recipient with the prior written approval of the disclosing party; (iii) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, or (iv) Agent Content.
“Force Majeure”means any act of God, fire, natural disaster, accident, act of government, labor difficulty, sabotage, failure of Installer’s or subcontractors or shortages or unavailability of energy, material or supplies or any other cause beyond the reasonable control of a party.
“Installer”means the signpost installer(s) that You order Products from on the Up Sign Down Site.
“Malicious Code”means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Marks”means all proprietary indicia, trademarks, service marks, or trade names Up Sign Down or Agent may adopt from time to time to identify Agent or the Up Sign Down Site.
“Order Form”means the documents for placing orders hereunder, including addenda thereto, that are entered into between You and an Installer from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Installer agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.
“Product”means the materials, supplies and services offered and sold by Installer in the ordinary course of business on the Up Sign Down Site.
“Services” means the products and services that are ordered by You under an Order Form and made available by Installer online via the customer login link and/or other web pages designated by Us.
"Users" means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You. Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.
“Up Sign Down,” “We,” “Us”or “Our” means Up Sign Down, Inc.
“Up Sign Down Site”means any Internet marketplace created, operated, enabled, or hosted by Up Sign Down or otherwise utilizing Up Sign Down technology to facilitate the purchase and sale of materials, supplies and services.
2. SERVICES, TRANSACTION AND SETTLEMENT TERMS
(a) Provision of Services. We shall make the Services available to You pursuant to this Agreement and pursuant to the relevant Oder Form(s). You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
(b) Product Fulfillment. All of Your Product orders shall be fulfilled according to terms established between You and Installer. Up Sign Down shall at no time have title to Product. Product fulfillment by the Installer, and the timing and payment for an order by You shall be the sole responsibility of You and the Installer. Up Sign Down only facilitates transmission of the Installer approved invoicing and shall not be responsible for collections or delays in the remittance process made through third party banking or other financial settlement systems. Up Sign Down is not an agent of either You or Installers for the fulfillment or settlement of their transactions over the Up Sign Down Site.
Following the delivery and installation of the Product to You, Installer, not Up Sign Down, shall be solely responsible for (a) dealing with You in connection with all Product warranty issues, claims, coverage, liability, and disputes; (b) dealing with You on any issue relating to accounting or inventory discrepancies; and (c) addressing Your problems, questions, concerns, claims and losses in the event of: (i) any Product malfunction, defect, damage, maintenance, repair or service issue, or (ii) any other problem, question or issue relating to the Products which may arise from You, including, but not limited to sign inventory, signpost inventory, proper placement of sign, proper sign used, accessories (i.e. flyer boxes, riders), timely placement, timely repair, timely removal, accuracy of signpost, and accuracy of sign. Up Sign Down makes no warranties to the You regarding Installer’s Products.
(c) Relationship. You and Up Sign Down are independent of one another and have no partnership, agency, or similar relationship. Up Sign Down only provides a Product listing and transaction facilitation medium for You to purchase Installer’s Product through an Up Sign Down Site and neither You nor Up Sign Down shall have any authority to assume or create any obligation or responsibility on behalf of the other.
3. UP SIGN DOWN’S OBLIGATIONS
(a) Sales. Up Sign Down will use commercially reasonable efforts to maintain a substantial listing of Installer Content on the Up Sign Down Site and to facilitate Installer invoicing of transactions initiated on the Up Sign Down Site. Up Sign Down will facilitate Your ordering and Installer invoicing of Product orders. Up Sign Down makes no warranties to the Customer regarding the Installer’s Product.
(b) Control over Content. Up Sign Down retains sole control over the programming and content of the Up Sign Down Site.
4. THIRD PARTY CONTENT, WEBSITES, AND SERVICES
The Up Sign Down site and Content available through its website may contain features and functionalities that may link You or provide You with access to third party content which is completely independent of Up Sign Down, including websites, directories, servers, networks, systems, information and databases, applications, products or services, and the Internet as a whole.
Your interactions with organizations and/or individuals found on the Up Sign Down Site including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and such organizations and/or individuals. You should make whatever investigation You feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. Your relationship with other individuals, entities, or organizations shall be governed by the terms and use policies of those websites as well.
You agree that Up Sign Down shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between participants on this website, or between users and any third party, You understand and agree that Up Sign Down is not under any obligation to become involved. In the event that You have a dispute with one or more other users, You hereby release Up Sign Down, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes.
5. PRIVACY AND INFORMATION DISCLOSURE
Your use of the Up Sign Down Site signifies acknowledgement of and agreement to Our Privacy Policy. You further acknowledge and agree that Up Sign Down may, in its sole discretion, preserve or disclose Your information, including, but not limited to: (i) E-mail addresses; (ii) IP addresses; (iii) Timestamps, (iv) Installation property information, such as address and dates; and (v) Other user information, for marketing purposes either by Up Sign Down or its Affiliates if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any of Your content violates the rights of third-parties; (d) respond to claims that contact information (e.g. phone number, street address) of a third-party has been posted or transmitted without their consent or as a form of harassment; (e) protect the rights, property, or personal safety of Up Sign Down, its users or the general public.
6. TERM AND TERMINATION
(a) Initial Term. Initial Term of this Agreement shall commence on the Effective Date and end on the 3rd year (anniversary) thereof. Thereafter, this Agreement shall be automatically renewed (“Renewal Term”) every 24 months unless either party gives the other party written notice of its intention not to renew at least thirty (30) days prior to the expiration of the Initial Term or the then current Renewal Term. The Initial Term or Renewal Term shall be referred to herein as the “Term”.
(b) Termination. You agree that Up Sign Down, in its sole discretion, has the right (but not the obligation) to delete or deactivate Your account, block your e-mail or IP address, or otherwise terminate Your access to or use of the Services (or any part thereof), immediately and without notice, for any reason, including, without limitation, if Up Sign Down believes that You have acted inconsistently with the letter or spirit of the terms of this Agreement even if Up Sign Down is misinformed or relies on unverified information or data. Further, You agree that Up Sign Down shall not be liable to You or any third-party for any termination of Your access to the Up Sign Down Site. Further, You agree not to attempt to use the Up Sign Down Site after said termination.
7. DISCLAIMER OF WARRANTY
THE SYSTEM, INCLUDING ALL SERVICES, SOFTWARE AND HARDWARE, AND UP SIGN DOWN SITE PROVIDED BY UP SIGN DOWN HEREUNDER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. UP SIGN DOWN WILL NOT BE HELD RESPONSIBLE FOR ANY DELAYS THAT MAY BE CAUSED BY THE SOFTWARE PROGRAM. UP SIGN DOWN MAKES NO WARRANTY WITH RESPECT TO THE SYSTEM SERVICES, HARDWARE, SOFTWARE OR THE UP SIGN DOWN SITE PROVIDED HEREUNDER, AND EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
8. COOKIES
When You visit the Up Sign Down Site, We may store some information on Your computer. This information will be in the form of a "cookie" or “pixel tag” or similar file and can help Us maintain and improve Our Site in many ways. A “pixel tag” is a web bug that is embedded in a web page or e-mail and is usually invisible to the user but allows checking that a user has viewed the page or e-mail. A "cookie" is a small amount of data that is transferred to Your browser by a Web server and can only be read by the server that gave it to You. It functions as your identification card, recording such things as Internet addresses, passwords, and preferences. It cannot be executed as code or deliver viruses. With most Internet browsers, you can erase "cookies" from Your computer hard drive, block all "cookies," or receive a warning before a "cookie" is stored. Please refer to Your browser instructions to learn more about these functions.
9. INTELLECTUAL PROPERTY RIGHTS
(a) Reservation of Rights in Services.Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
(b)Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
(c)Your Data. Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein.
(d) Suggestions.We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
10. CONTENT
You recognize that You are solely responsible for the substance and content of any information that You make available, including, without limitation, through the posting of content on the Up Sign Down Site through a listing or otherwise. All of such content is Your responsibility. Up Sign Down will not be responsible, and cannot independently verify, and makes no representations or warranties concerning, the content information provided or received by You through Your use of the Services. Any information provided by Up Sign Down in connection with its provision of the Services relating to property of others has been obtained directly from the owners of such property or from sources believed by the Us to be reliable. In connection with Your use of any information made available to You through the Services, You shall be responsible for any actions taken in reliance on such information and, accordingly, You are recommended to make Your own due-diligence inquiries concerning the veracity of such information and Up Sign Down assumes no liability therefor. Up Sign Down has the right to monitor the content that You make available on the Up Sign Down Site or other users make by means of any Service, but shall have available on the Up Sign Down Site. You agree that if Up Sign Down in its sole discretion deems any content made available by You to be unlawful, fraudulent, unacceptable, offensive, obscene or otherwise objectionable, Up Sign Down has the right, but not the obligation, to remove or deny access to such content. You expressly agree that Up Sign Down shall not be liable to You for any action We take to remove or restrict access to such material, nor for any action taken to restrict access to material posted in violation of any law, regulation or rights of a third party, including, but not limited to, rights under the copyright law and prohibitions on libel, slander and invasion of privacy. Up Sign Down Company has the right to take all reasonable actions to remove or restrict access to any such material, including restriction, suspension or termination of Your access privileges and/or deletion of the objectionable material.
11. PROHIBITED USES
You expressly agree not to use Up Sign Down’s Services in a manner that is inconsistent with these terms of use, prohibited by any law or regulation, or to facilitate the violation of any law or regulation. You acknowledge that prohibited conduct includes, but is not limited to, use of any of the Services to invade the privacy of third parties, impersonation of the Up Sign Down's personnel or other parties or entities, transmitting abusive, profane, libelous, slanderous, threatening or otherwise harassing material via e-mail, chat services or bulletin boards. You also agree not to use the Services to (i) solicit other members to patronize services or purchase goods from third parties; (ii) violate the security of the Services; or (iii) attempt to utilize another user's account name or persona without authorization from that user.
12. USER INFORMATION
(a) You certify to the Company that you are not a minor (i.e., that You are at least eighteen (18) years of age).
(b) For purposes of identification, billing and marketing, You agree to provide Up Sign Down with accurate, complete, and updated information required by the Membership Profile, including your legal name, address, telephone number(s), and applicable payment data. You agree to notify Up Sign Down within ten (10) days of any changes in this Profile information. Failure to comply with this provision may result in immediate suspension or termination of Your right to use the Services.
(c) You are solely responsible for maintaining the confidentiality of your passwords, and agree that Up Sign Down will have no obligations with regard thereto.
13. LIMITATION OF LIABILITY
(a) UP SIGN DOWN AND ITS AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, AND UP SIGN DOWN EXPRESSLY DISCLAIMS ANY DAMAGES YOU SUFFER, FOR ANY LOSS OF BUSINESS, PROFITS, GOODWILL, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR ANY DIRECT, INDIRECT, SPECIAL EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF UP SIGN DOWN IS AWARE OF THE RISK OF SUCH DAMAGES, THAT RESULT IN ANY WAY FROM YOURS USE OF OR INABILITY TO USE THE UP SIGN DOWN SITE, AN EVENT OF FORCE MAJEURE OR THAT RESULT FROM ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION, SYSTEM RELIABILITY OR ANY OTHER FAILURE OF PERFORMANCE OF THE UP SIGN DOWN SITE, HARDWARE, OR SOFTWARE USED OR PROVIDED HEREUNDER, OR THAT RESULT FROM THE MANUFACTURE, SALE, DISTRIBUTION OR USE OF THE PRODUCTS.
(b) UP SIGN DOWN SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES, FOR ANY LOSS OF BUSINESS, PROFITS, GOODWILL, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVIN IF UP SIGN DOWN IS AWARE FO THE RISK OF SUCH DAMAGES, THAT RESULT IN ANY WAY FROM UP SIGN DOWN’S PERFORMANCE OR NON-PERFORMANCE UNDER THIS AGREEMENT OR ANY BREACH OF THIS AGREEMENT BY UP SIGN DOWN.
(c) IN NO EVENT SHALL UP SIGN DOWN’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE AMOUNT YOU PAID FOR THE PRODUCT.
14. CONFIDENTIALITY
You shall be required to keep and maintain as confidential any of the information made available to You by Up Sign Down as may be provided by Up Sign Down from time to time; provided, however, You expressly acknowledge that Up Sign Down is not a fiduciary with respect to any information that You provide to Us and that the Up Sign Down has no reciprocal obligation of confidentiality to You other than as expressly provided in Up Sign Down's Privacy Policy, the terms of which are incorporated herein by reference.
15. WARRANTY AND INDEMNIFICATION
You represent and warrant to Up Sign Down that You will not transmit by means of the Services any materials of any kind which (i) violate, plagiarize, or infringe the intellectual property or contractual rights of any third party; (ii) are exported in violation of any law, rule, or regulation governing exports from the United States; (iii) contain libelous, defamatory, obscene, pornographic, abusive or otherwise unlawful material; (iv) contain software viruses or any other Malicious Code designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. You further represent and warrant to Up Sign Down that Your use of the Services will at all times comply with applicable laws, rules, and regulations. You hereby agree to indemnify, defend and hold harmless Up Sign Down and its employees, licensors, independent contractors, providers, subsidiaries and affiliates (collectively, the "affiliates"), from and against any and all liability and costs incurred by the affiliates in connection with any claim arising out of any breach by you of the foregoing representations, warranties and covenants, including, without limitation, attorneys' fees and costs. You shall cooperate as fully as reasonably required in the defense of any claim. Up Sign Down reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You and You shall not in any event settle any matter without the written consent of Up Sign Down.
16. GENERAL
(a) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law provisions.
(b) Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
(c) Force Majeure. Neither party shall be in default if performance of its obligations or attempts to cure any breach are delayed or prevented by reason of an event of Force Majeure.
(d) Waiver. None of the conditions or provisions of this Agreement shall be held to have been waived by either party, except by an instrument in writing signed by a duly authorized officer of the waiving party. Further, the waiver by either party of any right hereunder or the failure to enforce at any time any of the provisions of this Agreement, or any rights with respect thereto, shall not be deemed to be a waiver of any other rights hereunder or any breach of failure of performance of the other party.
(e) Modifications. Up Sign Down can, at its discretion, change these Terms. When terms are changed, Up Sign Down, Inc. will notify You by publishing these changes to the Up Sign Down Site. If You use the Site after Up Sign Down has published or notified You of the changes, You are agreeing to be bound by those changes. If you do not agree to be bound by those changes, You should not use the Up Sign Down Site.
(f) Severability. If any provision or provisions of this Agreement is, are or become invalid, is or are ruled illegal by any court of competent jurisdiction or is or are deemed unenforceable under then current applicable law in effect during the Term hereof, the remainder of this Agreement shall not be affected thereby, provided that a party’s rights under this Agreement are not materially affected. A provision which is as similar as possible in economic and business objectives as such invalid, illegal or unenforceable provision, but which is valid, legal and enforceable, shall be substituted in lieu of each such provision which is invalid, illegal, or unenforceable.
(g) Entire Agreement. This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.
(h) Miscellaneous. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. Any modifications to this Agreement must be made in writing executed by both parties, by Your online acceptance of updated terms, or after Your continued participation in the Program after such terms have been updated by Up Sign Down. This agreement shall be available on line at upsigndown.com. The failure to require performance of any provision shall not affect a party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties’ intention, and the remaining provisions of this Agreement will remain in full force and effect. You may not resell, assign, or transfer any of Your rights hereunder. Notwithstanding the foregoing, Up Sign Down may assign this Agreement to any affiliate at any time without notice. The relationship between Up Sign Down and You is not one of a legal partnership relationship, but is one of independent contractors. By accepting the contract online You agree to the terms set forth in this agreement.
RE Post Installers additional Terms & Conditions.
RE POST INSTALLERS IS A POST RENTAL SERVICE. SERVICES INCLUDE BUT IS NOT LIMITED TO, INSTALLING AND REMOVING RESIDENTIAL AND COMMERCIAL POSTS. BY USING OUR SERVICE YOU ARE AGREEING TO RENT RE POST INSTALLERS PROPERTY. IF ANY OF RE POST INSTALLERS PROPERTY IS LOST,STOLEN, OR DAMAGED COSTUMER IS FINANCIALLY LIABLE TO REPLACE THAT PROPERTY. RE POST INSTALLERS OFFERS FREE STORAGE OF AGENT PANELS AND RIDERS AS A COURTESY. RE POST INSTALLERS IS NOT LIABLE FOR NORMAL WEAR AND TEAR OF AGENT SIGNAGE THAT MAY OCCUR WHILE IN STORAGE OR IN TRANSIT.
REPAIRS AS A RESULT OF RE POST INSTALLERS' INSTALLATION:
ANY DAMAGED UNDERGROUND SPRINKLER PIPES, OR OTHER (UNLESS LOCATION IS MARKED BY THE ADVERTISER/HOMEOWNER):
RE POST INSTALLERS MUST BE NOTIFIED IMMEDIATELY AND GIVEN THE CHANCE TO INSPECT AND REPAIR AS SOON AS POSSIBLE. RE POST INSTALLERS DOES NOT PAY 3RD PARTY VENDORS TO REPAIR LINES IF RE POST INSTALLERS IS NOT NOTIFIED OF THE BREAK AND GIVEN A CHANCE TO REPAIR IT WITHIN 48 HOURS OF NOTIFICATION.