Last Modified: January 30th, 2020
These Terms of Service (these “Terms”) constitute an agreement between you, the user, and Modern Mast Corporation and its subsidiaries and affiliates (“Upstream”, “we” or “us”). These Terms govern your access to and use of the website located at https://upstreamapp.com and related websites and mobile applications (the “Website”), including any content, functionality and services offered on or through the Website, and any of our other products or services (collectively, the “Services”), whether or not you register as a user.
The Services are offered and available to users who are 18 years of age or older. By using the Services, you represent and warrant that you are 18 years of age or older and are otherwise capable of forming a legally binding contract with Upstream. If you do not meet these requirements, you must not access or use the Services.
You acknowledge and confirm that (i) you have read and understand all of the terms, conditions, policies, provisions, disclosures and disclaimers contained herein, (ii) these Terms have the same force and effect as a signed agreement, and (iii) you expressly accept and agree to be bound by the terms hereof.
Upstream is a professional social network to support founders, investors and operators seeking help and support from a professional perspective, including without limitation professional introductions, job searching and feedback, in a public or private mode. The Services include, but are not limited to, the ability to create an account, and connect and communicate with other users.
We may modify these Terms at any time in our sole discretion. We will post notice of changes to these Terms on this page. Changes will not apply retroactively and will only become effective when (i) you use the Services after you know about the change, or (ii) thirty days after they are posted (whichever is sooner). However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. We will also update the Last Modified Date at the top of these Terms accordingly. Your continued use of the Services after the Last Modified Date signifies your consent to the modified Terms. You are expected to check this page frequently so you are aware of any changes, as they are binding on you. If the modified Terms are not acceptable to you, you should not access or use the Services after the Last Modified Date.
Upstream disclaims all liability for the disclosure of information that you choose to submit voluntarily. You assume all such risks with regards to your use of the Services.
You must be at least 18 years old to use the Services. The Services are intended for adults and Upstream does not knowingly collect personal information from children under age 13. If you submit content related to your child younger than 13, do not include personally identifying information about that child, including but not limited to name, address, email address and phone number.
Upstream and the Services are operated from within the United States. If you access the Services from a location outside the United States, you are responsible for compliance with the laws of that jurisdiction regarding online conduct and acceptable content. Upstream makes no claim that the content of the Services may be utilized, accessed or appropriate outside the United States. You must not access or use the Services from a territory that is embargoed by the United States or from which it is illegal to receive products, services, or software from the United States.
The Services may link to independent third party websites or social media widgets. Such hyperlinks are provided for your reference and convenience only. Upstream is not liable for the availability or accuracy of such third party sources, and you assume all risk in using them. When you link to them, these third-party sites or services may place cookies and other tracking technologies on your computer and may have different rules for using or sharing any personal information you submit to them. We encourage you to read their privacy policies before submitting your personal information.
When you access third party websites or interact or communicate with third parties, including other users, through the Services, you do so at your own risk. Upstream is not responsible for the actions, content, information, data, practices, policies or opinions of any third parties, including other users. You are solely responsible for your interactions with other users, and any other parties with whom you interact through the Services. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline interaction with any other person.
If you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes, including damages for loss of profits, goodwill, use, privacy or data. We reserve the right, but have no obligation, to become involved in any way with these disputes. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his settlement with the debtor.” And, if you are not a California resident, you waive any applicable state statutes of a similar effect.
In addition to the Services offered by Upstream, the Website may also advertise, offer, or make available information, products and/or services provided by third parties (collectively, the “Third Party Materials”). Third party products and/or services are governed by separate agreements or licenses with the third parties. Upstream offers no guarantees and assumes no responsibility or liability of any type with respect to the Third Party Materials, including any liability resulting from incompatibility between third party products and/or services and the products and/or services provided by Upstream. You agree that you will not hold Upstream responsible or liable with respect to the Third Party Materials or seek to do so.
You agree to keep your password confidential and to protect your account. You agree to notify us immediately of any unauthorized access to your account or any other breach of security. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your personal information.
You understand that Upstream provides Services over the Internet, that such connections can be unpredictable, insecure, and unstable, and that Upstream cannot guarantee uninterrupted access to the Services. Upstream disclaims all liability in connection with any security incidents or breaches arising from or attributable to an Internet and/or data connection. You agree to waive any and all claims against Upstream in connection therewith.
We are constantly changing and improving our Services. We reserve the right to add or remove functionalities or features of the Services, and we may suspend or stop a Service altogether, including, for example, if you do not comply with these Terms or if we are investigating suspected misconduct. You can stop using our Services at any time. We may also stop providing Services to you, or add or create new limits to our Services or restrict your access to all or a part of the Services at any time without notice or liability. We will not be liable if for any reason all or any part of the Services are unavailable at any time or for any period. The right to access and use the Services is revoked in jurisdictions where it may be prohibited, if any.
Some of the Services are provided free of charge, while others may be provided for a fee.
We reserve the right, with or without prior notice, to limit the availability of or to discontinue any service; to impose conditions on any promotion; to bar any user from making any payment; and/or to refuse to provide any user with any service.
If you wish to purchase any of the Services (“Purchase”), you may be asked to supply certain information relevant to your Purchase including, without limitation, your credit card number, the expiration date of your credit card, your billing address, and your shipping information.
You represent and warrant that: (i) you have the legal right to use any credit card(s) or other payment method(s) in connection with any Purchase; and that (ii) the information you supply to us is true, correct and complete.
All Purchases placed on or through the Services are subject to our acceptance. Your receipt of an order confirmation does not signify that we have accepted your Purchase. We reserve the right at any time after receipt of your Purchase to accept or decline your Purchase for any or no reason and without liability to you or anyone else. If your method of payment has already been charged for a Purchase that we later cancel, we will issue you a refund. Prices are in U.S. dollars unless otherwise stated and are subject to change. We may require verification of information prior to the acceptance and/or fulfillment of any Purchase.
Upstream grants to you a revocable, non-transferable, nonexclusive, limited and non-assignable license to access and use the Services in accordance with these Terms. Upstream reserves all other rights in the Services not expressly granted to you.
Upstream permits the submission of content or communications submitted by users and the hosting, sharing, and/or publishing of such content.
You grant Upstream a worldwide, unlimited, irrevocable, royalty-free license to publicly and privately use, publish, reproduce, display, copy, edit, perform, create derivative works from, or otherwise make use of any content you submit on or through the Services (“User Content”) in connection with the Services and Upstream’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels. You understand and acknowledge that you are responsible for any User Content you submit or contribute, and you, not Upstream, are fully responsible for such content, including its legality, reliability, accuracy and appropriateness. We are not responsible, or liable to any third party, for the content or accuracy of any User Content posted by you or any other user of the Services. We cannot guarantee the identity of any other users with whom you may interact in the course of using the Services, or the authenticity of any data which users may provide about themselves. You acknowledge that all content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom.
Upstream does not endorse any User Content or any opinion, recommendation, or advice expressed therein, and expressly disclaims any and all liability in connection with User Content. Upstream does not knowingly permit infringement of intellectual property rights on its Services, and will remove all User Content if properly notified that such User Content infringes on another’s intellectual property rights. Upstream reserves the right to remove User Content without prior notice. Upstream will also terminate a user’s access to the Services, if a user is determined to be a repeat infringer. Upstream also reserves the right to decide whether User Content is appropriate and complies with these Terms for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, pornography and obscene or defamatory material. Upstream may remove such User Content and/or terminate a User’s access for uploading such material in violation of these Terms at any time, without prior notice and at its sole discretion.
You understand that when using the Services, you may be exposed to User Content from a variety of sources, and that Upstream is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Content. You further understand and acknowledge that you may be exposed to User Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Upstream with respect thereto, and agree to indemnify and hold Upstream, its owners/operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the Services.
We do not accept unsolicited suggestions and/or ideas. All inquiries, feedback, suggestions, ideas, criticism or other information any User provides to Upstream concerning the Upstream Services (collectively, “Submissions”) will be treated as non-proprietary and non-confidential. By transmitting or posting any Submission, the User hereby grants Upstream full ownership of the Submission as if Upstream had created, developed and posted the Submission for its own purposes, with no obligation to pay you royalties or any other compensation. Please note this is different from User Content, which is addressed above. Upstream reserves the right to copy, use, reproduce, modify, adapt, translate, publish, license, distribute, sell or assign the Submission in any way as it sees fit, including but not limited to copying in whole or in part, creating derivative works from, distributing and displaying any Submission in any form, media, or technology, whether now known or hereafter developed, alone or as part of other works, or using the Submission within or in connection with Upstream’s products or services. You also acknowledge that Submissions will not be returned and Upstream may use Submissions, and any ideas, concepts or know how contained therein, without payment of money or any other form of consideration, for any purpose including, without limitation, developing, manufacturing, distributing and marketing products.
If you make a Submission, you represent and warrant that you own or otherwise control the rights to the Submission. You further represent and warrant that such Submission does not constitute or contain software viruses, commercial solicitation, chain letters, mass mailings, or any form of “spam.” You may not use a false email address, impersonate any person or entity, or otherwise mislead Upstream as to the origin of any Submission. You agree to indemnify Upstream for all claims arising from or in connection with any claims to any rights in any Submission or any damages arising from any Submission.
You may use the Services only for lawful purposes and in accordance with these Terms. Without limiting the generality of the foregoing, you agree to use the Services in accordance with the provisions below:
We have the right to: (i) remove or refuse to post any User Content for any or no reason in our sole discretion; (ii) take any action with respect to any User Content that we deem necessary or appropriate in our sole discretion, including if we believe that such User Content violates these Terms, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public or could create liability for Upstream; (iii) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (iv) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and (v) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of these Terms.
YOU WAIVE AND HOLD HARMLESS UPSTREAM AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY SUCH PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
The Services and all past, present and future content of the Services, including all software, hardware and technology used to provide the Services (including our proprietary code and third-party software), user interfaces, materials displayed or performed on the Services, such as text, graphics, articles, photographs, images, illustrations and the design, structure, sequence and “look and feel” of the Services, and all other intellectual property, including all trademarks, service marks, logos, or any other trade name, trademarks, service marks and other distinctive or proprietary brand features of Upstream, are (i) owned by Upstream, its licensors or other providers of such material, (ii) protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws, (iii) are intended solely for the personal, non-commercial use of our users, and (iv) may only be used in accordance with these Terms.
Using our Services does not give you ownership of any intellectual property rights in our Services or any content on the Services. You may not use content from our Services, including User Content, unless you obtain permission from its owner or are otherwise permitted by law. These terms do not grant you the right to use any of our technology or intellectual property. You may not remove, obscure, or alter any copyright or other legal notices displayed in or along with our Services.
No right, title or interest in or to the Services or any content on the Services is transferred to you, and all rights not expressly granted are reserved by Upstream. Any use of the Services not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark and other laws.
Upstream cannot protect or advise you on your intellectual property rights, and Upstream cannot and does not take any responsibility for doing so.
If you believe that your copyrighted work has been unlawfully copied and is accessible on the Services in a way that constitutes copyright infringement, please send a notice of copyright infringement to:
Attn: Copyright Agent Modern Mast Corporation 335 Madison Avenue, 16th Floor New York, NY 10017 Phone: 646-299-8369 Email: [email protected]
The notice should include:
You agree to receive legal notices and other information concerning Upstream or the Services electronically, including notice to any email address that you may provide.
These Terms will remain in effect until terminated by you or Upstream. We reserve the right to terminate or change the Services or your access to the Services, without notice, at any time and for any reason, including your violation of these Terms or for business reasons. We also reserve the right to pursue any additional remedies available in law or equity.
You agree that Upstream may, for any reason and without notice to you, immediately terminate or otherwise restrict your access to the Services. Upstream has no obligation to maintain, store, or transfer your information or data that you have posted on or uploaded to the Services.
The disclaimer of warranties, limitation of liability, jurisdictional, limitation of time to file claims, indemnification and arbitration provisions survive any termination.
THE SERVICES AND ANY ASSOCIATED CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER UPSTREAM NOR ANY PERSON ASSOCIATED WITH UPSTREAM MAKES ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICES OR ANY ASSOCIATED CONTENT. WITHOUT LIMITING THE FOREGOING, NEITHER UPSTREAM NOR ANYONE ASSOCIATED WITH UPSTREAM REPRESENTS OR WARRANTS THAT THE SERVICES OR ANY ASSOCIATED CONTENT WILL BE ACCURATE, RELIABLE, ERROR-FREE, UPDATED OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
UPSTREAM HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
YOUR USE OF THE SERVICES AND ANY CONTENT ON THE SERVICES IS AT YOUR SOLE RISK AND DISCRETION. You may not assert claims for money damages arising from the Services or any associated content against Upstream, its affiliates, licensors or service providers, or our respective employees, contractors, officers, directors and agents. Upstream, its affiliates, licensors and service providers, and our respective employees, contractors, officers, directors and agents shall not be liable for any direct, indirect, special, incidental, consequential or punitive damages, including but not limited to personal injury, pain and suffering, emotional distress, or loss of revenue, profits, goodwill or data, whether caused by tort (including negligence), breach of contract or otherwise, even if we knew or should have known of the possibility of such damages, arising out of or in connection with (i) your use, or inability to use, the Services or any associated content or User Content, (ii) any interaction with any third party through or in connection with the Services, including other users, (iii) any information offered or provided within or through the Services, or (iv) any other matter relating to the Services. In no event shall Upstream, its affiliates, licensors or service providers, or our respective employees, contractors, officers, directors and agents be liable to you in the aggregate (for all potential claims by you) for any damages incurred in excess of one hundred dollars ($100). Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the extent permitted by law.
You are solely legally liable if your use or misuse of the Services or any associated content causes damage to the Services, to you, or to someone or something else. You agree to defend, indemnify, and hold harmless Upstream, its affiliates, licensors and service providers, and our respective employees, contractors, officers, directors and agents from and against all liabilities, claims, damages, judgment, awards, losses, costs, expenses, fines or fees (including attorney's fees and investigation costs), that arise from or relate to your use or misuse of the Services, your User Content or violation of these Terms or violation of a third party’s rights. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
Any cause of action or claim you may have arising out of or relating to these Terms or the Services must be commenced within one (1) year after the cause of action accrues, otherwise, such cause of action is permanently barred.
You agree that the laws of the State of New York and U.S. federal law govern these Terms, your use of the Services, and any claim or dispute that you may have against Upstream, without regard to New York’s conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
YOU UNDERSTAND THAT YOU ARE WAIVING YOUR RIGHT TO HAVE YOUR CLAIMS HEARD IN COURT BY A JUDGE OR JURY. AN ARBITRATION AWARD IS AS ENFORCEABLE AS A COURT ORDER AND IS SUBJECT TO ONLY LIMITED REVIEW BY A JUDGE. YOU ALSO UNDERSTAND AND AGREE THAT THIS ARBITRATION PROVISION PREVENTS YOU FROM PARTICIPATING AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
Arbitration will be subject to the Federal Arbitration Act, and shall be commenced and conducted by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes, as amended by this provision, by one arbitrator that is acceptable to both parties. You can find out more about AAA and how to file an arbitration claim at www.adr.org or by calling 800-778-7879.
Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA rules and, where appropriate, limited by the AAA Consumer Rules. In the event you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Upstream will pay as much of your filing, administrative, and arbitrator fees in connection with the arbitration as the arbitrator deems necessary to prevent arbitration from being cost-prohibitive. In such case, we will make arrangements to pay all necessary fees directly to the AAA. If the arbitrator determines the claim(s) you assert in the arbitration are frivolous, you agree to reimburse Upstream for all fees associated with the arbitration paid by Upstream on your behalf, which you otherwise would be obligated to pay under the AAA’s rules.
The arbitration will be conducted through written submission, unless the arbitrator determines that a telephonic hearing is required. Except as otherwise provided in these Terms, you and Upstream may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. In the event this arbitration provision is held unenforceable by a court, or in the event AAA refuses to arbitrate the dispute, all controversies, disputes, demands, counts, claims, or causes of action between you and Upstream shall be exclusively brought in the state or federal courts of New York, New York.
Despite this provision, you may file a claim in a small claims court that has jurisdiction to hear the matter.
These Terms and any supplemental terms, policies, rules and guidelines posted on the Services constitute the entire agreement between you and Upstream. If any part of the Terms is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The paragraph headings used herein are for convenience only and shall not be used to limit any portion of these Terms of Service.
You may not assign these Terms without Upstream’s prior written approval. Upstream may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Upstream’s business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you and Upstream as a result of these Terms or your use of the Services. Our failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Upstream in writing.
The Services are operated by Upstream. All feedback, comments, requests for technical support and other communications relating to the Services should be directed to us at:
Modern Mast Corporation 335 Madison Avenue, 16th Floor New York, NY 10017