Platform Terms of Service

These Terms of Service (“Terms”) apply to your access to and use of Firstup’s and its affiliates’ platform(s), websites, mobile applications and other online services (collectively, our “Services”) made available to you by your employer (our “Customer”).  Our Services are provided by Firstup, Inc. and/or its affiliates, including Dynamic Signal, Inc. (collectively, “Firstup”, “we”, or “our”) on behalf of Customer pursuant to a written agreement between Firstup and Customer (the “Contract”). These Terms constitute a binding agreement between you and us. Firstup will have the right (and will be deemed to have accepted the right) to enforce the Terms against you. By accessing or using our Services, you agree to be bound by these Terms. If you do not agree to these Terms, you may not use our Services.

1. Eligibility

Customer has invited you to join Customer’s instance of our Services and create a user profile. You must be an employee of or otherwise affiliated with Customer to use our Services. You represent and warrant that you (i) have not been previously suspended or removed from our Services or engaged in any activity that could result in your suspension or removal from our Services, (ii) do not have more than one active account, (iii) have full power and authority to enter into these Terms, and (iv) are currently employed by or affiliated with Customer. Our Services are not intended for and should not be used by (a) anyone under the age of sixteen or (b) anyone under the applicable age of majority according to the data protection laws and regulations in your jurisdiction. You represent that you are over the legal age and are the intended recipient of Customer’s invitation to use our Services. You may not access or use our Services for any purpose if either of the representations in the preceding sentence is not true. Without limiting the foregoing, you must be of legal working age.

2. Accounts

You are solely responsible for maintaining the security of your account and account credentials, and you must promptly notify us or Customer if you discover or suspect that someone has accessed your account without your permission. You cannot permit others to access our Services under your account using your credentials.

3. Acceptable Use

You are solely responsible for your conduct while accessing or using our Services. You agree to comply with Customer’s applicable code of conduct and all applicable laws and regulations in connection with your use of our Services. In addition, in connection with your use of our Services, you will not:

• Violate any applicable law, contract, intellectual property or other third-party right, or commit a tort;
• Engage in any harassing, threatening, intimidating, predatory, or stalking conduct;
• Send information that is fraudulent or is not transparent as to its source, such as “spoofing” or “phishing;”
• Use or attempt to use another user’s account without authorization from that user;
• Sell, lease, or rent any aspect of our Services;
• Use our Services for competitive information gathering, benchmarking or to create a competitive service, such as by using information received via our Services to build a separate database;
• Use our Services in any manner that could interfere with, disrupt, negatively affect or inhibit the proper operation of our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
• Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
• Attempt to circumvent any security or other constraints we employ or attempt to access any feature or area of our Services that you are not authorized to access;
• Develop or use any application that interacts with our Services without our prior written consent;
• Use any data mining, robots, or similar data gathering or extraction methods other than in accordance with any instructions contained in any robots.txt file that we provide that controls automated access to portions of our Services;
• Bypass or ignore instructions contained in any robots.txt file that we provide that controls automated access to portions of our Services;
• Send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
• Introduce any virus, trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems, or software into our Services;
• Attempt to probe, scan, or test the vulnerability of our Services, or disclose or cause to disclose any information related to any security penetration, similar tests, or vulnerabilities without our prior written consent;
• Use our Services other than for their intended purpose or in any other illegal, fraudulent or unauthorized manner, or engage in, encourage or promote any activity that violates these Terms;
• Use contact or other user information obtained from our Services (including email addresses) to contact other users outside of our Services without their express permission or authority or to create or distribute mailing lists or other collections of contact or user profile information for other users for use outside of our Services; or
• Authorize, permit, enable, induce, or encourage any third party to do any of the above.

4. User Content

Our Services allow you and other users to create, post, store, and share content, including messages, text, photos, videos, software, audio, and other materials (collectively, “User Content”). Except for the license you grant below, as between you, Firstup, and Customer, either you or Customer retain all rights in and to your User Content. To the extent possible, you hereby grant Firstup a non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display User Content (a) to provide, maintain and update our Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law; (d) as permitted in the Contract; and (e) as expressly permitted in writing by Customer. When you post or otherwise share User Content, you understand that your User Content and any associated information (such as your username or profile photo) may be visible to other users. Our Services are intended to be for internal use by Customer; however, Firstup is not responsible for other users’ actions publicly sharing User Content.

Although we have no obligation to screen, edit, or monitor User Content, we may delete or remove User Content at any time and for any reason.

5. User Content Restrictions

You may not create, post, store, or share any User Content that:

• Is in conflict with Customer’s policies, including, without limitation, its code of conduct;
• Contains (a) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof); (b) without the express consent of the data subject, information regarding a person’s race, religious or political affiliation, trade union membership, or sexual life or sexual orientation; (c) genetic, biometric, health, or any Protected Health Information of any person as defined under Health Insurance Portability and Accountability Act, as amended; (d) credit or debit card number, credit information, financial account or other financial information of a person; (e) without the express consent of the data subject, personally identifiable or confidential information of Customer’s customers (including any financial, credit card, or account information), including any “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, as amended, or other information subject to any banking or financial law or regulation control; (f) any data subject to the U.S. International Traffic in Arms Regulations (ITAR), U.S. Export Administration Regulations (EAR) or other export control laws or regulations; (g) any information that falls within the definition of “special categories of data” under EU Data Protection Law; and/or (h) any other information that requires safeguarding, handling or distribution controls under any applicable law or regulation;
• Is unlawful, libelous, defamatory, obscene, pornographic, indecent, suggestive, harassing, threatening, invasive of privacy or publicity rights, confidential information of a third party, abusive, inflammatory, misleading or fraudulent;
• Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
• May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
• Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
• Impersonates, or misrepresents your affiliation with, any person or entity;
• Contains any unsolicited promotions, political campaigning, advertising or solicitations;
• Contains any private or personal information of a person without that person’s consent;
• Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
• Is, in our sole judgment, objectionable or that restricts or inhibits any other person from using or enjoying our Services, or that may expose Customer or Firstup or others to any harm or liability of any type.

6. Limited License

Our Services, including the software code, text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans, and other content contained therein, are owned by or licensed to Customer (except User Content which is owned by you, Customer, or your licensors) and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, Firstup and our licensors reserve all rights in and to our Services. Subject to these Terms, including your compliance with Sections 3 through 5 above, you are hereby granted a limited, nonexclusive, non-transferable, non-sublicensable, revocable license to use our Services solely in connection with your employment by or affiliation with Customer. Any use of our Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will automatically terminate the license granted herein.

7. Third-party Content

Our Services may contain third-party content, including links to web pages, and other content of third parties (collectively, the “Third-Party Content”). You are responsible for deciding if you want to access or use Third-Party Content or applications that link from the Third Party Content or our Services. Access and use of such Third-Party Content, including the information, materials, products, and services on or available through any third-party sites is solely at your own risk and may be subject to third party terms of agreement.

8. Social Networking Sites

As part of the functionality of our Services, Customer may allow you to link your user account with various online accounts you have with certain social networking sites (“SNS”) to our Services. As a user, you will then have the option to link your SNS accounts to our Services. Once connected, the SNS will send us your user profile (including profile photo, handle name) and analytics information about the posts you share on the SNS platform(s), such as how many people potentially see a post, the number of responses generated by your content, and information about the activity related to your post, including responses and identity of individuals who interact with such content. This information may then be viewable by Customer and us. Your SNS profile photo and handle name may also be viewable by other users. We do not collect passwords to your SNS, as that information is confirmed by the SNS separate from our Services. Certain SNS permit sharing without linking to our Services. In these cases, the information collected may be a subset of the above. By linking your SNS account(s) to our Services, you are granting Customer and us permission to access and collect the limited data described above.

9. Feedback

You may submit questions, comments, suggestions, ideas, original or creative materials or other information about our Services (collectively, “Feedback”). You grant us a non-exclusive, sublicensable, perpetual, and irrevocable license to use such Feedback for any purpose, including to incorporate within our Services or to otherwise exploit commercially without acknowledgment or compensation to you.

10. Disclaimers; Assumption of Risk

We do not control, endorse or take responsibility for any User Content or Third-Party Content available on or linked to by our Services. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OUR SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY, COMPLETENESS, AVAILABILITY OR RELIABILITY OF OUR SERVICES. SOME STATES DO NOT ALLOW LIMITATIONS DESCRIBED IN THIS SECTION, SO ALL OR SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

AS BETWEEN US AND CUSTOMER, YOU AGREE THAT IT IS SOLELY CUSTOMER’S RESPONSIBILITY TO (A) INFORM YOU OF ANY RELEVANT CUSTOMER POLICIES AND PRACTICES AND ANY SETTINGS THAT MAY IMPACT THE PROCESSING OF YOUR DATA AND USER CONTENT; (B) OBTAIN ANY RIGHTS, PERMISSIONS OR CONSENTS FROM YOU THAT ARE NECESSARY FOR THE LAWFUL USE OF DATA YOU INPUT WHILE ACCESSING AND USING OUR SERVICES; (C) ENSURE THAT THE TRANSFER AND PROCESSING OF YOUR DATA AND USER CONTENT UNDER THE CONTRACT IS LAWFUL; AND (D) RESPOND TO AND RESOLVE ANY DISPUTE WITH YOU RELATING TO OR BASED ON YOUR DATA AND USER CONTENT, OUR SERVICES, OR CUSTOMER’S FAILURE TO FULFILL THESE OBLIGATIONS.

11. Limitation of Liability; Consumer Protection

If we believe that there is a violation of the Contract, these Terms, or any of our other policies that can simply be remedied by Customer’s removal of certain User Content or taking other action, we will, in most cases, ask Customer to take action rather than intervene. We may directly step in and take what we determine to be appropriate action (including disabling your account) if Customer does not take appropriate action or we believe there is a credible risk of harm to us, our Services, other users, or any third parties. IN NO EVENT WILL YOU OR WE HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNLESS YOU ARE ALSO A CUSTOMER (AND WITHOUT LIMITATION TO OUR RIGHTS AND REMEDIES UNDER THE CONTRACT). OUR TOTAL MAXIMUM AGGREGATE LIABILITY TO YOU IS ONE HUNDRED DOLLARS ($100). THE FOREGOING DISCLAIMERS AND LIMITATIONS OF LIABILITY WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW AND DO NOT LIMIT EITHER PARTY’S RIGHT TO SEEK AND OBTAIN EQUITABLE RELIEF.

Our Services consist of workplace communication and employee engagement tools and are intended for use by businesses and organizations and not for consumer purposes. To the maximum extent permitted by law, you hereby acknowledge and agree that consumer laws do not apply. If however any consumer laws (e.g., in Australia, the Competition and Consumer Act 2010 (Cth)) do apply and cannot otherwise be lawfully excluded, nothing in these Terms will restrict, exclude or modify any statutory warranties, guarantees, rights or remedies you have, and our liability is limited (at our option) to the replacement, repair or resupply of our Services or the pro-rata refund to Customer of pre-paid fees for its subscription covering the remainder of the term.

12. Governing Law and Venue

These Terms and your access to and use of our Services will be governed by and construed and enforced in accordance with the laws of California, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. You and we irrevocably agree that any legal action or proceeding relating to these Terms will be instituted only in the state or federal courts located in San Francisco, California. Neither the United Nations Convention of Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement.

13. Export Compliance

All or part of our Services may be subject to U.S. export control and economic sanctions laws (“Export Controls”). You agree to abide by all Export Controls as they relate to your access and use of our Services. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

14. Changes to Terms

We may make changes to these Terms from time to time. If we make changes, we will provide notice of such changes, such as by one or more of the following: (i) sending an email notification, (ii) providing notice through our Services, or (iii) posting the amended Terms to our Services and updating the “Last Updated” date above. Unless we say otherwise in our notice, the amended Terms will be effective upon the date set forth in the notice, and your continued access to and use of our Services after we provide notice will confirm your acceptance of the changes. If you use our Services after the effective date of any changes, that use will constitute your acceptance of the revised terms and conditions. If you do not agree to the amended Terms, you must stop accessing and using our Services. You can review the most current version of these Terms at any time by visiting this page.

15. Data Privacy

Please refer to our Multi-Tenant Privacy Policy available through our Services (available through the web experience and the mobile app), for details about how we collect information about you in connection with your use of our Services, and how we use and disclose this information.

16. Miscellaneous

If any part or provision of these Terms is held to be unenforceable, illegal, or invalid by a court of competent jurisdiction for any reason whatsoever, (a) the validity, legality, and enforceability of the remaining provisions of these Terms (including all portions of any provisions containing any such unenforceable provision that are not themselves unenforceable) will not in any way be affected or impaired thereby, and (b) to the fullest extent possible, the unenforceable, illegal, or invalid provision will be deemed modified and replaced by a provision that approximates the intent and economic effect of the unenforceable, illegal, or invalid provision and these Terms will be deemed amended accordingly. These Terms constitute the entire agreement between you and us relating to your access to and use of our Services. Enforcement of these Terms is at our discretion, and any failure of us to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. References to “including” or “include” will be deemed to mean “including without limitation”. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You may not assign any of your rights or delegate your obligations under these Terms, whether by operation of law or otherwise, without the prior written consent of us. We may assign these Terms in their entirety (including all terms and conditions incorporated herein by reference), without your consent, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets. To the extent of any conflict or inconsistency between the provisions in these Terms and any pages referenced in these Terms, the terms of these Terms will first prevail; provided, however, that if there is a conflict or inconsistency between the Contract and these Terms, the terms of the Contract will first prevail, followed by the provisions in these Terms, and then followed by the pages referenced in these Terms (e.g., the Multi-Tenant Privacy Policy). Customer will be responsible for notifying its users of those conflicts or inconsistencies and until such time the terms set forth herein will be binding.

17. Additional Terms for iOS Users

The following terms apply if you are accessing or using our mobile application (“App”) on an Apple Inc. (“Apple”) branded mobile device or obtained the App from Apple.

(a) Acknowledgment. These Terms are concluded between you and us only, and not with Apple, and, as between Apple and us, we are solely responsible for the App and the content thereof.

(b) Scope of License. The license granted to you for the App under the Terms is limited to a non-transferable license to use the App on any Apple-branded products that you own or control and as permitted by the Apple Usage Rules set forth in the Apple Media Services Terms and Conditions, except that such App may be accessed, acquired, and used by other accounts associated with the purchaser via “Family Sharing” or volume purchasing.

(c) Maintenance. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.

(d) Warranty. To the extent not effectively disclaimed under Section 10 of the Terms, we are solely responsible for any warranties, whether express or implied by law. In the event of any failure of the App to conform to any applicable warranty not effectively disclaimed under Section 10, you may notify Apple, and Apple may refund the purchase price (if any) for the App. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our sole responsibility.

(e) Liability. We, and not Apple, are responsible for addressing any claims of yours or any third party relating to the App or your possession and/or use of that App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy or similar legislation.

(f) IP Claims. In the event of any third-party claim that the App or your possession and use of that App infringes any third party’s intellectual property rights, we, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

(g) Third Party Beneficiaries. Apple and its subsidiaries are third party beneficiaries of these Terms, and will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.

18. Additional Terms for Google and Android Users

If you are accessing or using our Services through a device manufactured and/or sold by Google or obtained the App from Google, you must use our Services in accordance with any additional terms and conditions included in the Google Play Terms of Service, which are in place from time to time, the current version of which can be found at https://play.google.com/intl/en-US_us/about/play-terms.html, or any other such terms and conditions promulgated and published from time to time by Google.

19. Survival

The sections titled “User Content,” “Feedback,” “Disclaimers; Assumption of Risk.” “Limitation of Liability; Consumer Protection,” “Governing Law and Venue,” “Miscellaneous,” “Survival,” and all of the provisions under the general heading “General Provisions” will survive any termination or expiration of the User Terms and such other provisions that should reasonably survive termination, cancellation, or expiration hereof.

20. Questions

If you have any questions or concerns regarding our Services or these Terms, please contact us at legal@firstup.io.