Terms of Service

Last Modified: June 16, 2017

Thanks for using UpAbility. Please read these terms and conditions carefully. By using UpAbility, or signing up for an account, you’re agreeing to these Terms. This is a legal agreement.

By using the UpAbility LMS application (“Service”), you (“User”) agree to be bound by the following terms and conditions (“Terms”). UpAbility, Inc. (“UpAbility”) reserves the right to change the Terms at any time by posting updated terms at https://www.upability.com/terms, and your continued use of the Service constitutes your consent to such changes.

You may review the most current version of the Terms at https://www.upability.com/terms. Questions about the Terms should be sent to UpAbility via the contact information listed at https://www.upability.com.    

Basic terms and accounts

You are responsible for use of the Service by you, and if you are an organization or entity, by any of your users (“Authorized Users”). References in these Terms to “you”, “your” and the like, include, without limitation, any Authorized Users. You may use the Service only if you are of legal age to form a binding contract with UpAbility and reside in the United States or any of its territories or possessions. Your account with UpAbility (and use of the Service) gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of users. If you are accepting these Terms and using the Service on behalf of a company, organization, government, or other legal entity (“Affiliate(s)”), then (a) “you” includes you and the Affiliate(s), and (b) you represent and warrant that you are an authorized representative of the Affiliate(s) with the authority to bind the Affiliate(s) to these Terms, and that you agree to these Terms on the Affiliate(s)’ behalf. You may use the Service only in compliance with these Terms, any agreement entered into by an Affiliate relating to the Service, and all applicable local, state, national, and international laws, rules and regulations.

In cases where you have authorized or registered any Authorized Users, including a minor, to use your account(s), you are fully responsible for (i) the online conduct of such Authorized Users; (ii) controlling the Authorized User’s access to and use of the Service; and (iii) the consequences of any misuse. UpAbility reserves the right to provide access to any minor’s account to the minor’s parents, guardian or other authorized adult, upon such adult’s request.

Privacy and use of personal information

Any information that you provide to UpAbility, including first name, last name, email address, and any other information including personal information you have provided, may provide, or may be collected by us in connection with your use of the Service (“Your Information”), will be collected, maintained and used in order to provide the Service to you or your  Affiliate, in accordance with these Terms, our privacy policy located at https://www.upability.com/privacy (“Privacy Policy”), any additional terms applicable to an individual Service, the subscription agreement between UpAbility and you and/or your Affiliate relevant to your use of the Service (the “SAAS Agreement”) and any other agreement entered into by you or your Affiliate relating to the Service. You understand that, through your use of the Service, you consent to the collection and use (as set forth in these Terms, the Privacy Policy and any agreement entered into by you or your Affiliate relating to the Service) of Your Information, including the transfer of Your Information within and/or outside of the United States for storage, hosting, processing, and use by UpAbility.  

By using the Service, you hereby consent that UpAbility may (i) use any or all of Your Information in connection or combination with other UpAbility products to provide, maintain, protect and improve Services and to develop new services and (ii) provide User name and logo for UpAbility websites, blogs and marketing materials, and to third parties that provide marketing in connection with the Service, including without limitation any organization or entity hosting or licensing the Service.

For the avoidance of doubt, personal information that includes Authorized User Data (defined below) provided to UpAbility through the use of this Service is governed by the terms of the Privacy Policy. As between UpAbility and you and/or your Affiliate, you and/or your Affiliate own all right, title and interest to all Authorized User Data you provide or otherwise make available to us, and we do not own, control, or license such Authorized User Data, except to provide the Service and as described herein. “Authorized User Data” is any information (in any format) that is directly related to an identifiable current or former Authorized User that is maintained by an entity or organization, or by us, as part of the provision of the Service.

UpAbility may from time to time, in its sole discretion, engage third parties to perform the Services.

Confidential information

As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that (a) if disclosed orally is designated as confidential at the time of disclosure, (b) if disclosed in writing is marked as “Confidential” and/or “Proprietary”, or (c) that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, the terms and conditions of this Agreement, Your Information, the Service, business and marketing plans, technology and technical information, product designs, and business processes. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets or equity of any business, division, or group of such party. Confidential Information (except for Your Information) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to those of its employees and contractors who need to know such information for purposes of performing the Services and certifies that such employees and contractors have agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those in this Agreement. The Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event shall it use less than a reasonable degree of care.

Content and your rights

You are responsible for content that you submit, post or display to or through the Service (including without limitation, any feedback, comments or suggestions, collectively “Content”), and any consequences thereof. The Content you submit, post, or display may be viewed by other users of the Service. You may be able to control the Content that other users of certain Services may access through the privacy options in certain Services.

You shall abide by all applicable local, state, national and international laws and regulations and be solely responsible for all acts or omissions that occur with respect to your use of the Service and/or under your account or password, including those related to the protection of intellectual property, data privacy, international communications and transmission of technical or personal data.

You retain your rights to any Content you submit, post, or display on, to or through the Service. By submitting, posting or displaying Content on, to or through the Service, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, host, store, copy, reproduce, process, adapt, modify, publish, transmit, create derivative works, communicate, display, and/or distribute such Content in any and all media or distribution methods (now known or later developed) as part of providing any of the Service. You agree that this license includes the right for UpAbility to use and share Content with other organizations, entities or individuals, solely in connection with and as needed in order to provide the Service (including after termination of your use of the Service) and to make improvements to the Service, but for no other purpose. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any Content that you submit.

All Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such Content. We may not monitor or control the Content posted via the Service, and we cannot take responsibility for such Content. Any use or reliance on any Content or materials posted via the Service or obtained by you through the Service is at your own risk. We reserve the right to remove Content alleged to be infringing without prior notice, at our sole discretion, and without liability to you.

Your license to use the service

UpAbility gives you a personal, worldwide, royalty-free, non-assignable, non-sublicensable and non-exclusive license to use the Service, subject to these Terms and any agreement entered into by an Affiliate relating to the Service, solely for the intended use of the Service, and not for competitive intelligence, analysis, or demonstrations. You may not copy, modify, create derivative works or improvements of the Service or our materials; distribute, publish, sell, lease, sublicense, assign, transfer or otherwise make available any part of our Service; reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of any Service; bypass or breach any security device or protection used by the Services or access or use the Services other than by an Authorized User; input, upload, transmit or otherwise provide to or through the Services any information or materials that are unlawful or injurious, or transmit or activate any harmful code; damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services or UpAbility’s provision of services to any third party; or otherwise access or use the Services beyond the scope of the authorization granted by these Terms, in each case unless laws prohibit those restrictions or you have our written permission.

You shall abide by all applicable local, state, national and international laws and regulations and be solely responsible for all acts or omissions that occur with respect to your use of the Service  and/or under your account or password, including those related to the protection of intellectual property, data privacy, international communications and transmission of technical or personal data. By way of example, and not as a limitation, you will not, directly or indirectly:

Transmit any pornographic, obscene, offensive, threatening, harassing, libelous, hate-oriented, harmful, defamatory, racist, illegal or otherwise objectionable material or content; Transmit any material or content that attempts to falsely state or otherwise misrepresent your identity or affiliation with a person or entity; Transmit material or content that promotes, provides or relates to instructional information about illegal activities or promotes physical harm or injury against any individual or group; Transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation; Harvest or otherwise collect information about others, including email addresses, without their consent; Use a false identity or forged email address or header, or otherwise attempt to mislead others as to your identity or the origin of your messages; Transmit unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature; Knowingly transmit any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright or right of publicity; Transmit any material that contains viruses, trojan horses, worms, time bombs, cancelbots or any other harmful or deleterious programs; Interfere with or disrupt networks or websites associated with the Service or violate the regulations, policies or procedures of such networks; Attempt to gain unauthorized access to the Service website, services, other accounts, computer systems or networks associated with the Service, through password mining or any other means; Interfere with another person’s use and enjoyment of the Service or use and enjoyment of similar services.

You may not use the Service to collect sensitive information from other users, including but not limited to credit card information and social security numbers.

UpAbility rights

The Service is always evolving and the form, nature, and/or functionality of the Service may change from time to time without prior notice to you. In addition, UpAbility may stop (permanently or temporarily) providing the Service (or any features within the Service) to you or to users generally and may not be able to provide you with prior notice. We also retain the right to create limits on use and storage at our sole discretion at any time without prior notice to you.

All right, title, and interest in and to the Service (excluding Your Information and Content provided by users or other third parties) are and will remain the exclusive property of UpAbility. The Service is protected by copyright, trademark, and other laws of both the United States and foreign countries. Nothing in the Terms gives you a right to use the UpAbility or Service name or any of the UpAbility or Service trademarks, logos, domain names, and other distinctive brand features beyond the inclusion of the UpAbility name and logo in lists (including on your website) of customers or vendors in accordance with UpAbility’s standard logo and/or trademark guidelines. Any feedback, comments, or suggestions you may provide regarding UpAbility or the Service is entirely voluntary and we will be free to use such feedback, comments or suggestions as we see fit and without any obligation to you.

Registration obligations and passwords

You may never use another user’s account without permission. In consideration of your use of the Service, you agree (a) that Your Information will be true, accurate, current and complete, and (b) to maintain and promptly update Your Information to keep it true, accurate, current and complete. You are responsible for safeguarding any password that you use to access the Service (including passwords used on other UpAbility products that permit single sign-on to the Service) and for any activities or actions under your password. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You agree to (a) notify UpAbility of any unauthorized use of your password or User identification and any other breach of security, and (b) ensure that you exit from your account at the end of each session.

Export control

As required by the laws of the United States and other countries: (a) you understand that the Service is subject to export controls under the U.S. Commerce Department’s Export Administration Regulations (“EAR”); (b) you are not a Specially Designated National or Blocked Person  under the U.S. Office of Foreign Assets Control (“OFAC”) list or located in a prohibited destination country under the EAR or U.S. sanctions regulations; and (c) you will not export, re-export, or transfer the Service to any prohibited destination or persons or entities on the U.S. Bureau of Industry and Security Denied Parties List or Entity List, or the OFAC list of Specially Designated Nationals and Blocked Persons, or any similar lists maintained by other countries, without the necessary export license(s) or authorization(s).

Termination

We may suspend or terminate your account(s) or cease providing you with all or part of the Service at any time for any reason, including, but not limited to, if we reasonably believe: (i) you have violated these Terms, (ii) you create risk or possible legal exposure for us; or (iii) our provision of the Service is no longer commercially viable. In such a termination event, the license granted hereunder shall automatically terminate. In all such cases, the Terms shall terminate, including, without limitation, your license to use the Service, except that the following Sections shall continue to apply: Privacy and use of personal information, Content and your rights, UpAbility rights, Termination, Disclaimers and limitations of liability, and General items.

Disclaimers and limitations of liability

Please read this Section carefully because it limits the liability of UpAbility and its subsidiaries, affiliates, related companies, officers, directors, employees, agents, representatives, partners, licensors, successors and assigns (collectively, the “UpAbility Entities”). Each of the Subsections below only applies up to the maximum extent permitted under applicable law. Nothing in this Section is intended to limit any rights you may have which may not be lawfully limited.

A. The Service is Available “AS-IS”

Your access to and use of the Service or any Content are at your own risk. You understand and agree that the Service is provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, THE UPABILITY ENTITIES DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. No advice or information, whether oral or written, obtained from any of the UpAbility Entities or through the Service, will create any warranty not expressly made herein.

B. Links

The Service may contain links to third-party websites or resources. You acknowledge and agree that the UpAbility Entities are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by the UpAbility Entities of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.

C. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE UPABILITY ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICE; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON, THROUGH, OR ASSOCIATED WITH THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICE; OR (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.

IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE UPABILITY ENTITIES EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE AMOUNT YOU PAID UPABILITY, IF ANY, IN THE PAST SIX MONTHS FOR THE SERVICE GIVING RISE TO THE CLAIM.

THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE UPABILITY ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

D. Your Indemnity Obligations

You agree to indemnify, defend and hold harmless the UpAbility Entities from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees, the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (“Losses”) incurred by such UpAbility Entity in connection with any action, claim or other legal or administrative proceeding by a third party (other than your Affiliate) that arises out of or relates to: (i) Your Information or any other materials or information you provide on behalf of yourself or your Affiliate(s); (ii) use of the Service by yourself or others in violation of these Terms; (iii) allegations of facts that, if true, would constitute breach of any of your representations, warranties, covenants or obligations under these Terms; and (iv) negligence or more culpable act or omission by you or your Affiliate(s), or any third party on behalf of you or your Affiliate(s), including, without limitation, transmission of any material that contains viruses, trojan horses, worms, time bombs, cancelbots or any other harmful or deleterious programs.

General terms

A. Waiver and Severability

The failure of UpAbility to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. In the event that any provision of these Terms is held to be invalid or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect.

B. Governing Law

These Terms and any action related thereto will be governed by the laws of the State of Indiana without regard to or application of its conflict of law provisions or your state or country of residence. All claims, legal proceedings, or litigation arising in connection with the Service will be brought solely in the federal or state courts located in Indianapolis, IN, United States, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.

C. U.S. Government Users and U.S. Government Restricted Rights

Certain of the components that comprise the Service are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and/or “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth herein.

The Service, any mobile software and all upgrades to the foregoing (if any) are provided with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable.

Contractor/manufacturer is UpAbility, Inc., 325 South College Ave. #3, Indianapolis, IN 46202. All rights not specifically granted in this Agreement are reserved by UpAbility.

D. Entire Agreement

These Terms, our Privacy Policy, the SAAS Agreement and any agreement between UpAbility and you or your Affiliate(s) relating to the Service are the entire and exclusive agreement between UpAbility and you or your Affiliate(s) regarding the Service, and these Terms supersede and replace any prior agreements between UpAbility and you or your Affiliate(s) regarding the Service.

Notwithstanding the foregoing, nothing in these Terms supersedes or limits your rights, to the extent of any conflict, under (1) the SAAS Agreement, or (2) applicable laws or regulations to the extent these Terms are prohibited by such laws or regulations.  In the event of any conflict between these Terms and the terms and conditions of an applicable written agreement you have entered into with UpAbility, the SAAS Agreement terms shall control over these Terms, and these Terms shall control over any other agreement between UpAbility and you or your Affiliate(s) relating to the Service.

We may revise these Terms from time to time and post the most current version at the referenced link. We may, in our sole discretion, notify you of any updates through the Service or through the email associated with your profile and/or by posting updated terms at https://www.upability.com/terms. By continuing to access or use the Service after revisions are posted at the referenced link, you agree to be bound by the revised Terms.

E. Attorneys’ Fees

In the event that any action, claim or other legal or administrative proceeding is instituted or commenced by you, your Affiliate(s) or UpAbility arising out of or related to these Terms, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.