Last modified on May 8, 2019
Unless otherwise specifically agreed in writing signed by an employee of One Up Digital LLC, (“One Up Digital” or “Oneupdigital.com”), these terms and conditions create a contract (the “Agreement”) between you and One Up Digital. This website (the “Site”) is owned by One Up Digital and this page explains the terms by which you may use the Site. Please read the Agreement carefully. By clicking “Agree,” you thereby confirm your understanding and acceptance of this Agreement.
A. Introduction to the Services
This Agreement governs your use of One Up Digital’s services and the use of this Site (collectively the “Services”). The Services include (1) Local digital marketing (2); digital coupon marketing; (3) analytics dashboard metrics and access; and (4) certain support services provided by One Up Digital at its sole discretion regarding the services paid for.
One Up Digital makes no promises or guarantees regarding the website or digital marketing performance.
B. Using the Services
i. Payment, Taxes, and Refunds
You understand that prior to One Up Digital providing the Services you shall be required to pay a monthly fee and/or enter into a subscription plan using recurring billing or invoices.
There are various subscription plans (collectively the “Subscription Plan”). Your specific Subscription Plan is listed on your invoice. By starting your Subscription Plan, you authorize us to charge fees per the terms of your Subscription Plan, and any other charges you may incur in connection with your use of the Services. You will be automatically charged each month, or, in the case of a prepaid plan, per the terms of such plan, for your ongoing use of the Services. All the Subscription Plans fees are nonrefundable.
The cost of each Subscription Plan is set forth in your Agreement. Once you select a Subscription Plan, the cost of that Subscription Plan is guaranteed for the duration of your initial Subscription Plan only and does not extend to any renewals. Except as provided herein, Subscription Plan prices may change at any time with or without notice.
For details about how your payment is charged, please visit our Billing Policy available at https://oneupdigital.com/billing-policy/. In the event that this Agreement and the Billing Policy conflict, this Agreement controls. You are responsible for paying any applicable taxes.
If you intend to dispute any charge related to any of the Services, you must contact One Up Digital in writing at [email protected] or submit a ticket to your employee contact in charge of your One Up Digital account within thirty days after the disputed charge is first incurred. You waive any disputes not reported within thirty days of the disputed charge. At One Up Digital’s sole discretion, you may be entitled to a pro-rated partial refund of any unused portion of your advertising budget. If technical problems caused by One Up Digital, as determined in One Up Digital’s sole reasonable discretion, prevent or unreasonably delay delivery of the Services, your exclusive and sole remedy is either replacement of the Services or refund of the last service charge paid.
You may be billed fees, charges and assessments related to late or non-payments if for any reason (a) One Up Digital does not receive payment for the Services by the payment due date, or (b) you pay less than the full amount due for the Services.
YOU WILL BE ASSESSED A LATE FEE OF 10% PER MONTH (OR THE MAXIMUM AMOUNT PERMISSIBLE BY LAW IF SUCH AMOUNT IS LESS THAN 10% PER MONTH) FOR ANY PAYMENT AMOUNT THAT HAS NOT BEEN PAID IN FULL AFTER TEN (10) DAYS FROM THE DUE DATE. One Up Digital does not anticipate that you will fail to pay for the Services on a timely basis, and we do not extend credit to our customers. Any fees, charges, and assessments occasioned by your late payment or nonpayment will be considered liquidated damages intended to be a reasonable advance estimate of our costs resulting from late payments and non-payments. These costs will be difficult to calculate or to predict when we set such fees, charges and assessments, because we cannot know in advance: (a) whether you will pay for the Services on a timely basis, if ever; (b) if you do pay late, when you will actually pay; and (c) what costs we will incur because of your late payment or nonpayment.
In the event that One Up Digital receives a chargeback from a third-party payment provider on your behalf, One Up Digital may assess you with a fifty dollar ($50.00) processing fee for each individual chargeback.
If we use a collection agency or attorney to collect money owed to us by you, you agree to pay the reasonable costs and fees associated with such a collection. These include, but are not limited to any collection agency’s fees, reasonable attorneys’ fees, and arbitration or court costs.
If you fail to pay the full amount due for any or all of the Services, One Up Digital may, at its sole discretion in accordance with and subject to any applicable law, suspend any or all of the Services.
ii. Ongoing Subscription
Unless you cancel your Subscription Plan by deactivating the service from within your account, in writing at [email protected] or submit a ticket to a One Up Digital employee, not more than thirty days and not less than ten days prior to your current Subscription Plan’s expiration date, your Subscription Plan will automatically be renewed as a month to month Subscription Plan.
iii. One Up Digital Account
Using the Services requires a One Up Digital account (the “Account”). The Account is the account you use to access https://oneupdigital.com. Your Account is valuable, and you are responsible for maintaining its confidentiality and security. One Up Digital is not responsible for any losses arising from the unauthorized use of your Account. Please contact One Up Digital if you suspect that your Account has been compromised.
v. Usage Rules
Your use of the Services and this Site must follow the rules set forth in this Agreement, including but not limited to this section (the “Usage Rules”). Any other use of the Services and/or this Site is a material breach of this Agreement. One Up Digital may monitor your use of the Services and Site to ensure your compliance with this Agreement and the Usage Rules.
You may use the Services and Site only for your commercial purposes. You may not share or sell the information from the Site or the Services with any other person, third party, or other entity. You may access the Services only using the interface and instructions that we provide. You may not modify or use modified versions of our Site, the Services, or our software. You understand that One Up Digital does not verify whether the Services comply with your jurisdiction’s laws, rules and regulations. You understand and agree that you are responsible for complying with all applicable laws, regulations, and rules. Access to the materials in the Site or use of the Services where such would be illegal is prohibited. You may not tamper with or circumvent any security technology included with the Services or the Site.
One Up Digital’s delivery of the Services does not transfer any rights to you and does not constitute a grant or waiver with respect to any of One Up Digital’s intellectual property rights.
You agree to not use this Site or any of the Services to defame, abuse, harass, stalk, threaten or otherwise violate any legal rights of others; publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information; upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents; and upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer, including One Up Digital.
We have the right at our sole discretion to remove any content posted on our Site or through the Services for any reason. We are not responsible for any delay in or failure to remove such content.
vi. Changes to Service / Site
Subject to applicable law, we have the right to change the Services and the Subscription Plan rates, at any time with or without notice. If we do give you notice, it may be provided to you on your monthly statement, by e-mail, or other communication permitted under applicable law. If you find a change in the Services unacceptable, you have the right to cancel your Subscription Plan and, notwithstanding anything else in this Agreement, you may be entitled to a pro-rata refund. However, if you continue to receive the Services after the change, this will constitute your acceptance of the change.
C. Intellectual Property
You are granted a non-exclusive, non-transferable, revocable license to access and use the Services strictly in accordance with this Agreement. Using the Services does not give you ownership of any data or intellectual property rights in the Services, the Site or the content you access. Do not remove, obscure or alter any legal notices displayed in or along the Services or the Site.
You will not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, or in any way exploit the software and services that make up the Services or the Site other than as expressly authorized herein. You will not upload, post or otherwise make available on this Site any material protected by copyright, trademark or another proprietary right without the express permission of the owner of the copyright, trademark or other proprietary rights. You will indemnify One Up Digital for any claims by third parties of infringement of copyrights, trademarks, proprietary rights or any other harm resulting from your interaction with this Site.
The Services are not for resale. Your use of the Services does not entitle you to make any unauthorized use of any protected content, and in particular, you will not delete or alter any proprietary rights or attribution notices in any content. We do not grant you any licenses, express or implied, to the intellectual property of One Up Digital or our licensors except as expressly authorized by this Agreement. No One Up Digital service or product available through this Site, or any part of any One Up Digital service or product, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express wrote consent of One Up Digital. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of One Up Digital without express written consent. You may not use any meta tags or any other “hidden text” utilizing One Up Digital’s name or trademarks without the express written consent of One Up Digital. You may not misuse the Services or the Site. You may use the Services and the Site only as permitted by law. The licenses granted by One Up Digital, and your access to the Services and to this Site are expressly predicated on your compliance with this Agreement and immediately terminate upon your material violation of this Agreement.
Any content posted by you using any open communication tools on our Site provided that it doesn’t violate or infringe on any third party rights (including but not limited to copyright or trademark rights), becomes the property of One Up Digital, which is perpetual, irrevocable, worldwide, and royalty-free. This only refers and applies to content posted via the Site, and does not refer to information that is provided as part of the registration process.
D. Third Party Sites
Certain services made available via the Services are delivered by third party sites and organizations. By using any product, service or functionality originating from the Services, you hereby acknowledge and consent that One Up Digital may share such information and data with any third party with whom One Up Digital has a contractual relationship to provide the requested product, service or functionality on behalf of the Services users and customers.
E. No Warranty
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SITE AND THE SERVICES IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE AND THE SERVICES PERFORMED OR PROVIDED ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND ONE UP DIGITAL HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SITE AND THE SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ONE UP DIGITAL OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.
F. Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL ONE UP DIGITAL BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SITE AND THE SERVICES HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF ONE UP DIGITAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL ONE UP DIGITAL’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You agree to indemnify, defend and hold harmless One Up Digital, its officers, directors, employees, agents and third parties, for any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your violation of this Agreement, use of or inability to use the Services, any user postings made by you, violation of any rights of a third party, or your violation of any applicable laws, rules or regulations. You will provide notice to One Up Digital of any matter or circumstances which may give rise to indemnification by you hereunder, including but not limited to any claims, lawsuits, investigations or demands within ten days of your actual or imputed knowledge thereof. One Up Digital reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with One Up Digital in asserting and proving any available defenses.
H. Governing Law; Venue
This Agreement and the relationship between you and One Up Digital shall be governed by the laws of the State of Michigan, excluding its conflicts of law provisions. You and One Up Digital agree to submit to the personal and exclusive jurisdiction of the courts located within the County of Genesee, Michigan to resolve any disputes or claims arising from this Agreement.
I. Dispute Resolution
Should any dispute arise under this Agreement or otherwise related to the Services, you must first participate in at least four hours of non-binding mediation before a professional recognized by the National Academy of Distinguished Neutrals as a Member of the Academy and located in Genesee County, Michigan (“ADR Professional”). If the parties cannot agree on an ADR Professional, the Professional with the lowest hourly rate shall be the mediator. The parties shall share equally in the costs of the mediation. Mediation shall involve no formal court procedures, discovery, or rules of evidence and the mediator does not have the power to render a binding decision or force an agreement on the parties.
Should the dispute remain outstanding after mediation, prior to initiating litigation you must submit to mandatory non-binding arbitration before an ADR Professional other than the person who acted as mediator. If the parties cannot agree on an ADR Professional, each party shall select one ADR Professional, and those two Professionals shall choose a different ADR Professional (other than the one who served as a mediator) and that person shall be the arbitrator. The arbitrator may allow limited discovery and must conduct an evidentiary hearing—subject to the Michigan Rules of Evidence—of no more than eight hours in duration prior to rendering a written decision. The decision shall not be binding on the parties (and may not be entered as a judgment or cited as evidence or precedent) unless agreed to by the parties in writing but should be interpreted by the parties as a prediction of the result of formal litigation. Additionally, the prevailing party shall be reimbursed by the non-prevailing party its fees and costs related to the arbitration.
Standards and procedures for the mediation and arbitration shall be decided by the relevant ADR Professional consistent with this provision.
Absolutely no lawsuits may be initiated until after both of the foregoing mediation and arbitration protocols are completed. Any litigation commenced prior to completing both mediation and arbitration shall be subject to a stay pending completion of both.
J. Waiver of Class Action
There shall be no right or authority for any claims to be arbitrated or litigated on a class action or consolidated basis or on bases involving claims brought in a purported representative capacity on behalf of the general public, other users of the Site or the Services, or other persons similarly situated. One Up Digital would not be willing to provide the Services to you absent this waiver. You acknowledge and agree that you are under no obligation to use this Site or the Services if you are not willing to waive class action rights, and you expressly agree to this waiver.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and One Up Digital as a result of this agreement or your use of the Services or the Site. If any provision of this Agreement is determined to be invalid, all other provisions shall remain in full force and effect. No waiver of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import. Except as otherwise set forth herein, this Agreement constitutes the entire and only agreements between you and One Up Digital with respect to the Services and the Site and supersedes all other communications and agreements with respect to the subject matter thereof.
L. Electronic Communications
Visiting this Site or sending emails to One Up Digital constitutes electronic communications. You consent to receive electronic communications and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communications be in writing.
M. Digital Millennium Copyright Act (DMCA)
In the event materials are made available to this Site by third parties, not within our control, we are under no obligation to, and do not, scan such content for the inclusion of illegal or impermissible content. However, we respect the copyright interests of others. It is our policy not to permit materials known by us to infringe another party’s copyright to remain on the Site. If you believe any materials on the Site infringe a third party’s copyright, you should provide us with written notice that at a minimum contains:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. It is our policy to terminate relationships regarding content with third parties who repeatedly infringe the copyrights of others.