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Website Terms of Use

Site Terms of Use

 

Brandstack, LLC
Upstack.com
Website Terms and Conditions of Use

 

Please read these Terms of Use carefully before accessing or using this website (the "Site").

 

ACCEPTANCE OF TERMS
By accessing and/or using this Site in any way (collectively, including all Content available through the Upstack.com domain name, the "Upstack Website", "Upstack" or "Website"), you agree to and are bound by the terms and conditions set forth in this document and in any changes hereto that Brandstack, LLC ("Brandstack") may publish from time to time (collectively, the "Terms of Use"). If you do not agree to all of the terms and conditions contained in the Terms of Use, do not access or use Upstack.com.

 

Brandstack may change these Terms of Use and other guidelines and rules posted on the Site from time to time. Your continued access or use of the Site constitutes your acceptance of such changes. Your access and use of the Site will be subject to the current version of the Terms of Use, rules and guidelines posted on the Site at the time of such use. Please regularly check the "Terms of Use" link on the home page of Upstack.com to view the then-current terms. If you breach any of the Terms of Use, your license to access or use this Site shall automatically terminate.

 

THE UPSTACK SITE
These Terms of Service apply to all users of the Site, including users who are buyers, sellers and contributors of content, feedback, blogs, forums discussions, chats, directory listings, and other materials or services on the Website. The Site may contain links to third party websites that are not owned or controlled by Brandstack. Brandstack has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. By using the Website, you expressly relieve Brandstack from any and all liability arising from your use of any third-party website.

 

LIABILITY
You will not hold Brandstack responsible for other users’ actions or inactions, including things they post. The Site is merely a workspace and tool for collaboration between sellers and buyers. Brandstack is not involved in the actual transaction between buyers and sellers. We have no control over and do not guarantee the quality, safety or legality of items advertised, the truth or accuracy of listings, the ability of sellers to sell items, the ability of buyers to pay for items, or that a buyer or seller will actually complete a transaction.

 

TRADEMARKS
For the purposes of these Terms of Use, the term, "Trademark(s)" means all common law or registered trademarks, logos, service marks, trade names, Internet domain names, or other indications of origin now or in the future used by Upstack. Nothing contained herein grants or shall be construed to grant you any rights to use any Upstack Trademark, unless expressly conferred by these Terms of Use. You agree that you will not use Upstack’s Trademarks in any manner that might tarnish, disparage, or reflect adversely on such Trademarks or Upstack. You agree that you will not contest or otherwise challenge (i.e., in any legal action or otherwise), or assist or encourage any other person or entity to contest or challenge, the validity of any of Upstack Trademarks or the Trademark rights claimed by Brandstack. You agree that you will not use any Upstack Trademark or any variant thereof including misspellings) as a domain name or as part of a domain name regardless of the top-level domain, or as a meta tag, keyword, or any other type of programming code or data. You may not at any time, adopt or use, without Brandstack’s prior written consent any word or mark which is similar to or likely to be confused with Upstack’s Trademarks. The look and feel of the Upstack Website, including all page headers, custom graphics, button icons, and scripts, is the trade dress and/or trademark or service mark of Upstack and may not be copied, imitated or used, in whole or in part, without the prior written consent of Brandstack. You may not use an Upstack trademark, logo, image or other proprietary graphic of Upstack to link to the Upstack Website without the prior written consent.

 

All other trademarks, product names, and company names or logos used or appearing on the Site are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Brandstack, unless expressly so stated.

 

THE UPSTACK SERVICE
(a) Description. The Upstack Service is an online offering where individuals or entities that have signed up with Upstack as clients (each, a "Client") can post specific assignments and project descriptions (a "Brief") and obtain designs (each, a "Design") to those Briefs from designers retained through Upstack ("Members" or "Upstack Members"). Upstack will provide you, as the Client, the Service mentioned above. All Designs will be created and revised by the designers working on your project.

 

(b) Briefs. You are solely responsible for preparing and posting detailed descriptions of each of your Briefs to the Web Site. Upstack is under no obligation to review a Brief for any purpose, including accuracy, completeness of information, quality or clarity. Upstack may decide, in its sole discretion, to deny a Brief.

 

(c) Designer Communication. When Upstack designers provide you with a Design, you are responsible for reviewing the Design and communicating any feedback directly to the designer. Upstack is not responsible for the content of Designs in any way.

 

2. Eligibility, Access, Use and Service

 

(a) Eligibility Requirements. To register as a Client, you must be at least 18 years of age, agree to these Terms and Conditions and Upstack’s privacy policy, and complete the registration procedure. The registration procedure occurs when you begin to create a new project. By registering as a Client, you represent and warrant that you meet these eligibility requirements, that the information you include as part of the registration process is complete and accurate and, if you are registering on behalf of an entity, that you are authorized to bind that entity to these Terms and Conditions. Upstack may accept or reject your registration in its sole discretion.

 

(b) Authorization to Use; Permitted Uses. You may access and use the Service solely in accordance with these Terms and Conditions and any posted policies and procedures that appear on the Web Site. You may provide Briefs and obtain Designs only if you register as a Client. Any use of the Web Site is at your sole risk and responsibility. Subject to these Terms and Conditions, you may (i) display the Web Site on an Internet access device, and (ii) on an occasional, infrequent and ad hoc basis, and only in circumstances that constitute "fair use" under United States copyright law, print copies of insubstantial portions of the Web Site.

 

(c) Prohibited Uses. Except as expressly permitted in these Terms and Conditions, you may not display or print the Web Site and in no event may you broadcast, circulate, distribute, download, perform, publish, rent, reproduce, sell, store, transmit or create decorative works from the Web Site. Additionally, you agree to comply with all applicable laws (including, without limitation, any applicable export controls) in connection with your use of the Service, and with such further limitations or rules as may be set forth on the Web Site. Without limiting the foregoing, you agree not to transmit, distribute, post, communicate or store information or other material on, to or through the Web Site that (i) is copyrighted, unless you are the copyright owner; (ii) reveals trade secrets, unless you own them; (iii) infringes on any other proprietary or intellectual property rights of others, on the privacy or publicity rights of others, or any statutory right; (iv) is obscene, defamatory, threatening, harassing, abusive, hateful, or embarrassing to any other person or entity; (v) is sexually-explicit; (vi) constitutes advertisements or solicitations of business, chain letters or pyramid schemes; or (vii) contains viruses, Trojan horses, worms, time bombs, or other computer programming routines or engines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information. You further agree not to (a) use any incomplete, false or inaccurate biographical information or other information for purposes of registering as a Client; (b) delete or revise any material or other information of any other user of Upstack; (c) take any action that imposes an unreasonable or disproportionately large load on the Web Site’s infrastructure; (d) use any device, software or routine to interfere or attempt to interfere with the proper working of the Service or any activity being conducted on the Web Site; (e) use or attempt to use any engine, software, tool, agent or other device or mechanism (including, without limitation, browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Web Site, other than the search engine and search agents available from Upstack on the Web Site and other than generally available third-party web browsers (e.g., Microsoft Internet Explorer, Mozilla Firefox and Google Chrome); or (f) attempt to decipher, decompile, disassemble or reverse-engineer any of the software comprising or in any way making up a part of the Web Site.

 

(d) Web Site Security. You are prohibited from violating or attempting to violate the security of the Web Site, including, without limitation, (i) accessing data not intended for you or logging into a server or account that you are not authorized to access; (ii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (iii) attempting to interfere with service to any user, host or network, including, without limitation, by way of submitting a virus to, or overloading, "flooding", "spamming", "mailbombing" or "crashing", the Web Site; (iv) sending unsolicited email to any user of the Web Site, including promotions and/or advertising of products or services; or (v) forging any TCP/IP packet header or any part of the header information in any email or posting generated in connection with the Service. Violations of system or network security may result in civil or criminal liability. Brandstack will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. Brandstack reserves the right to review postings on the Web Site, to remove any postings, and to terminate your ability to communicate with, or post to, the Web Site at any time without notice, in its sole discretion. Brandstack will use commercially reasonable efforts not to disclose any information you communicate with, or post to, the Web Site, but reserves the right to disclose such information to the extent necessary to satisfy any applicable law, regulation, legal process or governmental request, and the right to edit, refuse to post or to remove any information or materials, in whole or in part.

 

(e) Operation of Web Site. Brandstack shall not be responsible for any delays or interruptions of, or errors or omissions contained in Upstack. Brandstack reserves the right, but shall not be required, to correct any such delays, interruptions, errors or omissions. Although Brandstack intends to use commercially reasonable efforts to make the Web Site and Service accessible, Brandstack makes no representation, warranty or covenant that the Web Site or Service will be available at all times or at any time. Various circumstances may prevent or delay availability, including telecommunications and/or server problems. Brandstack may at any time discontinue the Web Site in whole or in part, may change or eliminate any transmission method, and may change transmission speeds or other signal characteristics. Brandstack shall not be responsible for any loss, cost, damage or liability that may result from any of the circumstances, actions or inactions described in this paragraph.

 

3. Registration, Password, Username

 

(a) Your Username. When you register as a Client, you will create a user identity (your "Username"), which will be your identity for purposes of interacting with other users through the Web Site. Your username need not be your real name. During the registration process, the fields requesting information that will be made available to others as part of your Username are identified. You are responsible for ensuring that you are comfortable making such information available to other Web Site users.

 

(b) Access Numbers, Passwords, and Password Access. You shall keep confidential, shall not disseminate, and shall use solely in accordance with these Terms and Conditions, your username registration identification and password for the Web Site. You shall immediately notify Upstack if you learn of or suspect: (i) any loss or theft of your Username, registration identification or password, or (ii) any unauthorized use of your registration identification or password or of the Web Site. In the event of such loss, theft, or unauthorized use, Brandstack may impose on you, at Brandstack’s sole discretion, additional security obligations.

 

(c) Security Breaches and Revision. If any unauthorized person obtains access to the Web Site as a result of any act or omission by you, you shall use your best efforts to ascertain the source and manner of acquisition and shall fully and promptly inform Brandstack. You shall otherwise cooperate and assist in any investigation relating to any such unauthorized access.

 

4. Ownership; Rights to Use

 

(a) Web Site and Service Generally. Except as expressly contemplated under these Terms and Conditions, as between Upstack and you, Brandstack will own all right, title and interest in and to all copyright, trademark, service mark, patent, trade secret or other intellectual property and proprietary rights in and to the Web Site and Service, in all media now known or later devised, to the fullest extent provided under United States and international law. You shall not remove, conceal or alter any copyright notice, byline information, disclaimer, restriction or other notice on the Web Site or any portion thereof. You shall not use or permit any third party to use the name, trademarks, trade names, or trade dress of Upstack, including "Upstack", without the prior written consent of Brandstack, as determined in its sole discretion, for each such use.

 

(b) Briefs. Upon submission of a Brief or any other information or media provided by you in connection with your use of the Service (collectively, the "Client Information"), Upstack and its agents shall have all rights and licenses necessary to use such Client Information for the purpose of obtaining Designs and for archival purposes. Each Member to whom your project is made available has the right to review and display the relevant Brief for purposes of preparing Designs.

 

(c) Rights of Upstack. Upon your submission of Client Information to the Service, you grant Upstack and its agents (including Brandstack) a royalty-free, perpetual, irrevocable, sublicenseable, exclusive, worldwide right (including any moral rights) and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, communicate to the public, perform and display (in whole or in part), and/or incorporate in other works, in any form, media, or technology now known or later developed, such Client Information, for the full term of any intellectual property rights that may exist in such Client Information to the extent necessary to provide you with the Service and Designs.

 

(d) Rights of Clients. Subject to your compliance with these Terms and Conditions, you shall own the final Response composition provided to you by Upstack (the "Final Product"). You shall not, however, own any materials, media or other content generated during any revision cycles leading up to the Final Product unless purchased, and Upstack expressly reserves all right, title and interest in and to the same otherwise. You acknowledge and hereby grant to Upstack a royalty-free, irrevocable exclusive worldwide right to use Briefs, individual Designs provided to you, and Final Product for internal and archival purposes, and in order to display and promote the Upstack Service. Upstack retains the rights to all artwork concepts and other content not selected by you. You acknowledge that your ownership rights under these Terms and Conditions are limited to the Final Product and concepts expressly purchased, and that no trademarks or service marks in or to any Final Product are being conveyed under these Terms and Conditions. You hereby acknowledge that Upstack shall have no obligation or duty to perform trademark, service mark or copyright searches or inquiries, or the like, in order to validate the propriety or legality of the Final Product. Accordingly, you are encouraged to perform your own independent searches with regard to the Final Product. Furthermore, you acknowledge that Upstack shall have no responsibility or obligation of any kind to assist you in seeking state or federal intellectual property protection (i.e., without limitation, trademark or copyright registration) for the Final Product, nor shall Upstack be responsible for otherwise assisting you in any way in your attempt to perfect your rights in or to the Final Product.

 

5. Nondisclosure and Privacy

 

Brandstack intends to use commercially reasonable efforts to follow its privacy policy, as such privacy policy may be changed from time to time at Brandstack’s sole discretion. Notwithstanding the foregoing, Brandstack cannot and does not assume any responsibility or liability for any information submitted to the Web Site or for the use or misuse of any information submitted by you or any other person, including, without limitation, any information accessed by a hacker or by any other malicious act.

 

6. Disclaimers; Indemnification; Limitations of Liability

 

(a) Responsibility for Content. Upstack shall not be responsible for any use that is or is not made of the Web Site or the Service. Without limiting the foregoing, Upstack makes no representations, warranties or covenants regarding, and does not guarantee, the truthfulness, accuracy, or reliability of any information or other material (including, without limitation, any Brief, Designs or Usernames) that are communicated through, or posted to, the Service, whether by Members, Clients, Upstack or otherwise, nor does Upstack endorse any opinions expressed by any user of the Web Site, including any Member or Client. Without limiting the foregoing, Upstack makes no representations, warranties or covenants regarding the validity of the rights to Designs granted pursuant to these Terms and Conditions. You acknowledge that any reliance on information or other material, including, without limitation, any information related to a particular Project, Design or Username, communicated through the Service, or posted to the Web Site, will be at your own risk. Without limiting the foregoing, you agree and acknowledge that you use each Design at your own risk and that you are responsible for taking any actions you deem reasonable to determine whether your use of a Design will infringe any statutory or third-party intellectual property, privacy or publicity rights.

 

(b) Links to Third-Party Services. The Web Site may contain links to third-party web sites or other services (the "Linked Content"). The Linked Content is not under the control of Upstack and Upstack is not responsible for the Linked Content, including, without limitation, links contained in the Linked Content, or any changes or updates to Linked Content. Upstack is providing Linked Content to you only as a convenience, and the inclusion of such Linked Content is not an endorsement by Upstack of such Linked Content. If you decide to access any Linked Content, you do so at your own risk.

 

(c) Disclaimer of Warranties. THE SERVICE AND THE DESIGNS ARE PROVIDED "AS IS." UPSTACK MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER TO YOU OR ANY OTHER PERSON RELATING IN ANY WAY TO THE WEB SITE, INCLUDING ANY PART THEREOF, OR ANY WEB SITE OR OTHER CONTENT OR SERVICE THAT MAY BE ACCESSIBLE DIRECTLY OR INDIRECTLY THROUGH THE WEB SITE, INCLUDING ANY DESIGN, USERNAME OR LINKED CONTENT. UPSTACK DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, UPSTACK DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY AND ALL (i) WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (ii) WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS; (iii) WARRANTIES RELATING TO DELAYS, INTERRUPTIONS, ERRORS, OR OMISSIONS IN THE WEB SITE, OR ANY PART THEREOF; (iv) WARRANTIES RELATING TO THE TRANSMISSION OR DELIVERY OF THE WEB SITE; AND (v) WARRANTIES OTHERWISE RELATING TO PERFORMANCE, NON-PERFORMANCE, OR OTHER ACTS OR OMISSIONS BY UPSTACK OR ANY THIRD PARTY. FURTHERMORE, THERE IS NO WARRANTY THAT THE WEB SITE WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON.

 

(d) Release from Claims. The Service serves solely as a venue for the creation of work and Upstack does not regularly screen or censor any information or material posted to the Web Site. Although Upstack makes commercially reasonable efforts to determine the identity of Clients, Upstack cannot and does not confirm that any Client or other user is who they claim to be or that any Client or other user has the qualifications he or she claims to have. Because Upstack does not and cannot be involved in user-to-user dealings or control the behavior of participants on the Web Site, if you have a dispute with one or more users, you hereby release Upstack (and our affiliates, agents and employees) from claims, demands and damages (actual and consequential, direct and indirect) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."

 

(e) Indemnification. You hereby agree to defend, indemnify and hold harmless Upstack and its subsidiaries, affiliates, officers, agents, co-branders or other partners and employees from any action, claim, demand, or liability arising from or relating to your violation of any of these Terms and Conditions or use of the Web Site, and any expenses incurred in connection therewith, including, without limitation, reasonable attorneys’ fees.

 

(f) Limitation of Damages. IN NO EVENT SHALL THE COMPANY OR ANY THIRD PARTY BE LIABLE TO YOU OR ANY OTHER PERSON FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR INDIRECT DAMAGES ARISING UNDER OR IN ANY WAY RELATED TO THE WEB SITE, INCLUDING ANY PART THEREOF, OR THESE TERMS AND CONDITIONS OR ANY OTHER CONSENT (INCLUDING LOST PROFITS, LOSS OF BUSINESS OR DATA, BUSINESS INTERRUPTION, TRADING LOSSES, AND DAMAGES THAT RESULT FROM INACCURACY OF THE INFORMATION OR INCONVENIENCE, DELAY, OR LOSS OF THE USE OF THE SERVICE) EVEN IF UPSTACK OR ANY THIRD PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. UPSTACK TOTAL LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE TOTAL AMOUNT YOU PAID TO UPSTACK FOR YOUR PACKAGE UNDER THESE TERMS AND CONDITIONS.

 

7. Communication

 

By using the Upstack Service, you agree to receive, via email or otherwise, status notifications, a monthly newsletter, and carefully selected special offers and promotions for certain products and services that we believe could be of value to our Clients. This is essential to maintaining the low-cost of our services. You are free to unsubscribe from any newsletters we send to you at any time. Upstack may or may not use a third party to send email or otherwise contact you, however, your personal identifying information will never be disclosed or shared with another party in a manner inconsistent with Upstack’s privacy policy.

 

8. Miscellaneous Provisions

 

(a) Entire Agreement. These Terms and Conditions set forth the entire agreement and understanding of the parties with respect to the subject matter hereof and supersede any and all prior oral or written agreements and understandings, and any and all contemporaneous oral agreements and understandings (excluding any associated agreements required by Upstack (e.g., privacy policy) as a condition precedent to Clients’ use of the Service), between you and Upstack regarding the subject matter of these Terms and Conditions.

 

(b) Amendment. No modification, amendment, or waiver of these Terms and Conditions or any part hereof shall be binding unless evidenced in writing and signed by Upstack.

 

(c) Severability. If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be invalid, void, or unenforceable, then such provision shall be deemed null and void, but the remaining provisions shall continue in full force without being impaired or invalidated in any way.

 

(d) Mutual Participation. The language of these Terms and Conditions shall be deemed to be the language mutually chosen by the parties and no rule of strict construction shall be applied against or in favor of either party hereto.

 

(e) Headings. The section headings and other headings contained herein shall not affect the meaning or interpretation of these Terms and Conditions.

 

(f) Choice of Law; Forum. These Terms and Conditions shall be governed by the substantive law of the State of Texas, without reference to any choice of law rules that would result in the application of the substantive law of any other jurisdiction. The parties agree that any disputes arising out of or relating to these Terms and Conditions shall be submitted to the federal courts having jurisdiction in San Antonio, Texas, or state courts having jurisdiction in the area in which such federal courts have jurisdiction, and the parties consent to the personal jurisdiction of such courts with respect to such disputes.

 

(g) Assignment. You may not assign or otherwise transfer (by operation of law or otherwise) any of your rights or duties hereunder unless Upstack agrees in writing after receiving prior written notice. Any attempted assignment or other transfer without the requisite consent shall be null and void ab initio. Upstack may assign or otherwise transfer any of its rights or the performance of any of its duties without your consent.

 

(h) Waiver. The waiver by Upstack of a breach or a violation of any provision of these Terms and Conditions shall not operate as or be construed to be a waiver of any subsequent breach or violation of any provision of these Terms and Conditions.

 

(i) Independent Contractors. The parties and their respective personnel are and shall be independent contracts and neither party by virtue of these Terms and Conditions shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.

 

(j) Force Majeure. If the performance of any part of these Terms and Conditions by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that such performance is prevented, hindered or delayed by such causes.

 

(k) Capacity. The parties hereby warrant and represent that they have all necessary rights and authority to execute these Terms and Conditions and to fulfill their obligations hereunder.

 

(l) Further Assurances. The parties hereto shall, at their own cost and expenses, execute and deliver such other documents, artwork, programming code and instruments and shall take such other action as may reasonably be required or appropriate to evidence or carry out the intent and purposes of these Terms and Conditions. POSTING RESTRICTIONS You agree to not post anything on the site, including Designs, Revisions, comments, feedback, chats, forum posts, directory listings or other, which is: 1. Abusive, threatening, pornographic, or obscene; 2. Contains viruses, Trojan horses, worms, malicious script or other contaminating or destructive features; 3. Violates third party rights, including any copyright, trademark, patent, trade secret or right of privacy; or 4. Violates any applicable law.

 

DESIGNER/UPLOAD AGREEMENT This is a Contract between any Designer intending to upload data onto the Site and Upstack. For the purposes of these Terms of Use, the term, "Supplier Content" means and includes (i) all print and website templates and other digital designs, including digital embodiments thereof uploaded by the Designer to the Site, and (ii) any related descriptive or other information or data provided by the Designer.

 

1. Intellectual Property Seller hereby grants to Brandstack a royalty-free, worldwide license and right to copy, display, market, use, perform, distribute, and modify Supplier Content, as further set forth below (the "Designer-License"). All intellectual property rights, if any, in and to any modifications to Supplier Content, including any derivative works, made by Brandstack are hereby assigned to Designer ("as is", without warranty or representation of any kind), subject only to the Designer-License, and shall also constitute "Supplier Content" for the purposes of these Terms of Use. Designer hereby grants the following license and rights to Brandstack (the "Seller-License"):

1. The royalty-free, worldwide, perpetual license and right to use, post, reproduce, distribute, publish, transmit, package, repackage, modify, and publicly perform or display Supplier Content and Supplier’s trade- and service marks in connection with Brandstack’s marketing or other business operations, including the right to utilize, create, produce, and publish descriptions of the Supplier Content on the Site and the right to use, post, reproduce, distribute, publish Supplier Content and Supplier’s trade- and service marks for Site marketing, sales, and promotional purposes whether on the Site or through other websites or third parties; and
2. As to any Supplier Content, the Designer-License set forth in the preceding subparagraph (1.a.) shall continue and shall be exclusive to Brandstack until sixty days (60) after Brandstack’s receipt of written notification from Designer that Designer wishes to remove such Supplier Content from the Site.

Upstack’s Terms of Use prohibit any Supplier Content or any other material that infringes on any patent, trademark, copyright, trade secret, right of privacy, or any other applicable law or proprietary right to be uploaded to the Site. By uploading Supplier Content, the Designer warrants that he/she owns all proprietary rights, including copyright, in and to the Supplier Content. If Supplier Content is posted for sale, the Designer hereby grants Brandstack the right to transfer full ownership of such Supplier Content to a purchasing Designer of Upstack in accordance with these terms.

 

The Designer agrees that neither Brandstack nor any of its directors, officers, employees, partners or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use, the Supplier Content. The Designer further acknowledges that he/she is legally responsible for any challenges made by a third party regarding copyright in the Supplier Content.

 

2. Upstack Fees Except as otherwise noted, creating a user account with Upstack is free. Upstack may, in its sole discretion, add, delete or change any of the services provided or fees charged. No advance notice is required for any prospectively-effective change in services offered or fees charged therefore. Unless otherwise stated, all fees and currency amounts are quoted in Dollars.

 

3. Removal Upstack reserves the right to remove Supplier Content and Designs without prior notice. Additionally, Upstack reserves the right to terminate a User’s access to the website, if it is determined that the user is a repeat infringer. A repeat infringer is a User who has been notified of infringing activity more than once and/or has had a Supplier Content or Submission removed from the website more than one time.

 

4. Indemnification The Designer agrees to indemnify, defend and hold Brandstack and its officers, directors, owners, agents, information providers and licensors (collectively, "Brandstack Party") harmless from and against any and all claims, liability, losses, costs and expenses (including attorneys’ fees) incurred by any Brandstack Party in connection with: (i) any use or alleged use of the web site under the Designer’s name by any person, whether or not authorized by the Designer; (ii) any Supplier Content uploaded under the Designer’s name; or (iii) any breach of the Designer’s Warranties contained in this Contract. Brandstack reserves the right, at the Seller’s expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the Designer, and in such case, the Designer agrees to cooperate with Upstack’s defense of such claim.

 

5. Warranties The Designer warrants that he or she has the right to grant the License contained in this Contract to Upstack and its Clients. The Designer makes no warranty, expressed or implied, including any implied warranties of merchantability or fitness for a particular purpose. The Supplier Content is supplied "as is".

 

BUYER AGREEMENT This is a Contract between any Client intending to purchase data from the website ("Buyer") and Brandstack. By purchasing any Supplier Content, the Buyer understands that he/she agrees to be bound by the terms of this Agreement.

 

1. Intellectual Property
Upstack’s Terms of Use prohibit any Supplier Content or any other material that infringes on any patent, trademark, copyright, trade secret, right of privacy, or any other applicable law or proprietary right to be uploaded to its website. Knowing this, however, it is the Buyer’s responsibility to conduct the appropriate research to confirm that the Supplier Content he/she is purchasing is not currently in use and/or does not fall under a third party’s patent, trademark or other proprietary right.

 

Upon completion of the sale, exclusive ownership of the Supplier Content will transfer to the Buyer (hereinafter referred to as the "Buyer Content"). The parties agree that Brandstack may amend such policy as reasonable business objectives may from time to time require. Buyer hereby grants the following license and rights to Brandstack (the "Buyer- License"):

1. The royalty-free, worldwide, perpetual license and right to use, post, reproduce, distribute, publish, transmit, package, repackage, modify, and publicly perform or display Buyer Content in connection with Upstack’s marketing or other business operations, including the right to utilize, create, produce, and publish descriptions of the Buyer Content on the Site and the right to use, post, reproduce, distribute, publish Buyer Content for Site marketing, sales, and promotional purposes whether on the Site or through other websites or third parties; and
2. As to any Buyer Content, the Buyer-License set forth in the preceding subparagraph (1.a.) shall continue and shall be exclusive to Upstack unless Buyer submits a request for termination of the Buyer-License (hereinafter referred to as a "Removal Request"). For the purposes of these Terms of Use, the term, "Removal Request" means a written request to terminate the Buyer-License and remove the Buyer Content from the Site, which is sent to the following address, along with a termination fee of one hundred fifty dollars ($150 USD) per purchased:

Brandstack, LLC
84 NE Loop 410, Ste 325
San Antonio, TX 78216

 

The Buyer agrees that neither Brandstack nor any of its directors, officers, employees, partners or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use, the Buyer Content. The Buyer further acknowledges that he/she is legally responsible for any challenges made to a Designer regarding copyright in the Buyer Content.

 

2. Upstack Fees
Except as otherwise noted, creating a user account with Upstack is free. Upstack may, in its sole discretion, add, delete or change any of the services provided or fees charged. No advance notice is required for any prospectively-effective change in services offered or fees charged therefore. Unless otherwise stated, all fees and currency amounts are quoted in Dollars.

 

3. Indemnification
The Buyer agrees to indemnify, defend and hold Brandstack and its officers, directors, owners, agents, information providers and licensors (collectively, "Brandstack Party") harmless from and against any and all claims, liability, losses, costs and expenses (including attorneys’ fees) incurred by any Brandstack Party in connection with: (i) any use or alleged use of the web site under the Buyer’s Designer name by any person, whether or not authorized by the Buyer; (ii) any Buyer Content uploaded under the Buyer’s Designer name; or (iii) any breach of the Buyer’s Warranties contained in this Contract. Brandstack reserves the right, at the Buyer’s expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the Buyer, and in such case, the Buyer agrees to cooperate with Brandstack’s defense of such claim.

 

4. Warranties
The Buyer Content purchased by the Buyer is supplied "as is". Please see the Designer Agreement for additional details.

 

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