TERMS OF SERVICE
The Terms of Service (“Terms”) constitute a binding contract between you and UpStream Digital. By accessing upstream.africa (the “Site”) or making any purchase on the Site or from UpStream Digital, you accept and agree to be bound by each of the terms and every part of these Terms.
Additional Terms of Service may apply to certain of our products and services. Any such additional terms will be prominently noted in the Site’s description for that specific product or service, and such additional terms are incorporated herein by reference with respect to your purchase or use of that product or service.
YOUR USE OF THE SITE, PURCHASE OR USE OF PRODUCTS OFFERED BY US (OUR “PRODUCTS”), AND PURCHASE OR USE OF SERVICES OFFERED BY US (OUR “SERVICES”) ARE GOVERNED EXCLUSIVELY BY THESE TERMS. IF YOU DO NOT AGREE WITH ANY PART OF THESE TERMS, YOU ARE NOT AUTHORIZED TO ACCESS OR USE THE SITE, PURCHASE OUR PRODUCTS, OR PURCHASE OUR SERVICES. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT AND AUTHORITY TO AGREE TO THESE TERMS.
NOTWITHSTANDING ANYTHING CONTAINED IN THESE TERMS OR ON THE SITE TO THE CONTRARY, THE SITE IS PROVIDED WITHOUT ANY WARRANTY AND SUBJECT TO LIMITATIONS ON OUR LIABILITY.
BY USING OUR SITE, PURCHASING OR USING OUR PRODUCTS, OR PURCHASING OR USING OUR SERVICES, YOU ARE AGREEING TO SUBMIT ANY DISPUTE TO BINDING ARBITRATION AS FURTHER DESCRIBED IN THESE TERMS.
REVISION OF THESE TERMS
All inquiries may be directed to: UpStream Digital at email@example.com
• General Terms & Restrictions of Use
Use of Site. Subject to the limitations contained in these Terms, you may access and use the Site solely to view information about and to purchase the products and services of UpStream Digital for your personal, informational, and non-commercial use only. You agree not to access or use the Site, or any of our Products or Services, for any other purpose, including without limitation, any purpose that is prohibited by these Terms or by the law of any relevant jurisdiction. You further agree to comply with all applicable U.S. and international laws, statutes, ordinances, regulations, contracts, and applicable licenses regarding your use of the Site, our Products and our Services. We may, in our sole discretion, terminate or suspend your access to and/or use of the Site, or Products and/or our Services, or any portion thereof, at any time, with or without notice and for any reason (or no reason). You agree that (a) if your authorization to access the Site, our Products, and/or our Services is terminated, you will not thereafter access, or attempt to access, the Site, our Products, and/or our Services, directly or indirectly, and (b) if your authorization to access the Site is suspended, you will not thereafter access, or attempt to access, the Site directly or indirectly, until your suspension is removed and we provide you express notice thereof. You are solely responsible for all uses of the Site, our Products, and our Services by you.
Limited License; Restrictions on Use of Site. UpStream Digital grants you a limited, non-exclusive, non-assignable, non-transferable license to access, use, view, store, bookmark, download, and print content within our Site and to make other use of the Site that is customary for similar Internet Sites for your personal, non-commercial, and informational purposes only. This license shall be considered revoked if you fail to fully comply with these Terms. You are not authorized to alter, modify, or create derivative works of any such content without first receiving our express written permission. You further agree not to (a) use any of our trademarks as metatags on other Sites; (b) use the Site in any manner that is illegal or impairs the operation of the Site or its availability to or use by others; (c) display any part of the Site in frames (or any content thereof via in-line links); and/or (d) use or access, or attempt to use or access, any portion of the Site for which registration is required unless you are a Registered User (as defined in Section 3 below) without first obtaining our express written permission to do so. You further agree not to decompile, reverse engineer, or disassemble any software or other products or processes accessible through or incorporated into the Site, and not to insert any code or product or manipulate the Site in any way that affects the user’s experience, including, without limitation, taking any action that imposes, or may impose, an unreasonable or disproportionately large load on the Site. You may not use this Site in any manner that could damage, disable, overburden, or impair the Site or interfere with any other party’s use and enjoyment of the Site or any of UpStream Digital’s services. You further agree not to use any data mining, web crawlers, robots, cancel bots, spiders, Trojan horses, or any other data gathering or extraction method in connection with your use of the Site except for customary search engines used in accordance with automated instructions directed to search engines and available on the Site. You are solely responsible for providing, maintaining, and ensuring the compatibility of all hardware, software, electrical, and other physical requirements necessary for your access to and use of our Site. UpStream Digital may discontinue or alter any aspect of our Site, remove Content from our Site, restrict the time our Site is available, or restrict the amount of use permitted at UpStream Digital’s sole discretion without prior notice or liability. You agree that UpStream Digital may, under certain circumstances, immediately suspend and/or terminate your access to our Site. You further agree that such measures shall be taken at UpStream Digital’s sole discretion without liability to you or any third party.
You acknowledge that our Site contains information, software, photographs, video, text, graphics, music, sounds, or other materials provided by UpStream Digital or third parties (defined collectively as “Content”), some of which are protected by copyrights, trademarks, trade secrets, or other proprietary rights (the “Protected Content”), and that these rights are valid and protected in all forms.
Trademarks. The upstream.africa and name and logo, and all related products and services, design marks, slogans, and trade dress are the trademarks, service marks, and/or registered trademarks of UpStream Digital. The upstream.africa name and logo and other trademarks, trade names, and trade dress owned by UpStream Digital may not be used in any commercial manner without the prior written permission of UpStream Digital or as expressly provided in these Terms. In addition, all page headers, custom graphics, button icons, and scripts are services marks, trademarks, and/or trade dress of UpStream Digital or its licensors and may not be copied, distributed, imitated, posted, framed-in, or used, in whole or in part, without our prior written permission.
All other trademarks and service marks contained herein are the trademarks of their respective owners.
User Content. The Content posted by users on our Site (“User Content”) is the intellectual property of the specific users of our Site who post such User Content and their licensors, if any. UpStream Digital does not claim any ownership rights in such User Content. By posting User Content on our Site, you hereby grant UpStream Digital a limited, transferable, non-exclusive, worldwide, perpetual, royalty-free license to use, reproduce, modify, edit, adapt, publish, translate, display, distribute, sell, sublicense, and create derivative works from and compilations incorporating such User Content. You also agree that UpStream Digital is free to use any ideas, concepts, know-how, or techniques that you send to UpStream Digital for any purpose. In the event that you would like to remove your User Content from our Site, please contact UpStream Digital. Please note that it may not be possible to completely remove your User Content and that your User Content may still be available to others under certain circumstances. Moreover, UpStream Digital may continue to use the User Content pursuant to the license granted by its posting even after the User Content has been removed from the Site.
No Affiliation or Endorsement. UpStream Digital and this Site are not affiliated with or endorsed by YouTube, Instagram, SoundCloud, Pinterest, Facebook, or Spotify or any other website, service or social media company or platform except as expressly set forth in these Terms.
• User Accounts
• Purchase or Use of Our Products and Services
UpStream Digital may allow users to place orders for products and/or services via our Site. “Order” shall mean any order placed by a user for products and/or services via our Site that is confirmed by UpStream Digital. In the event that you are placing an Order to purchase products and/or services, you are subject to the additional terms of this section and any other terms and conditions posted on the Site that enable you to place an Order. In some cases, you may be directed to a third-party Site to make purchases. In such an event, the purchase terms in this section do not apply, and your purchase will be governed by the terms of such third-party Site. By making such purchases, you hereby agree that UpStream Digital has no responsibility, and shall have no liability, for any claim related to your purchases on such third-party Sites. Prices and availability of products or services are subject to change without notice. Errors will be corrected where discovered, and UpStream Digital reserves the right to revoke any stated offer and to correct any error, inaccuracies, or omissions including after an order has been submitted and whether or not the order has been confirmed and your payment method accepted and charged. In the event your payment method has been accepted and charged, UpStream Digital will issue you the appropriate credit within a reasonable time after your order has been revoked.
By purchasing or using any of our Products or Services, you expressly represent and warrant that you do not intend to, are not, and will not, use any of our Products or Services for any purpose other than personal, informational, and non-commercial purposes. You also expressly represent and warrant that you do not intend to, are not, and will not use any of our Products or Services for the intended or unintended purpose or consequence of increasing your viewers, followers, likes, subscribers, or the like for financial gain, including, but not limited to, actually or potentially misleading advertisers to believe such viewers, followers, likes, subscribers, or the like were obtained naturally. You further agree that your representations and warranties, as described herein, are ongoing in nature so long as you are purchasing, using, and/or benefiting from our Products or Services.
You understand that we can neither confirm nor deny the authenticity or provenance of our products or services delivered.
• Links to Third-Parties
Our Site may provide, or third-parties may provide, links to other Sites or resources on the Internet. UpStream Digital has no control over such Sites or resources, and you acknowledge and agree that UpStream Digital is not responsible for the availability, accessibility, or accuracy of such external Sites or resources, and that UpStream Digital does not endorse and is not responsible or liable for any content from such Sites or resources. You further acknowledge and agree that UpStream Digital shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any such content, goods, or services available on or through any such Site or resource. The provision of such links does not imply any sponsorship, affiliation, relation or endorsement of the Sites, the content thereof, and/or their respective owners or operators.
• Linking to the Site
UpStream Digital grants you a limited, non-exclusive, revocable license to create a hyperlink to the Site (“Link”). The content surrounding any Link to the Site must not be false or misleading as to the relationship between UpStream Digital and any third party or as to the nature of the products and services provided by UpStream Digital. We reserve the right to revoke this license to link to the Site at any time. If we do, you agree that you will immediately remove any Link to the Site, or any portion thereof, and will not, directly or indirectly, link to the Site or any portion thereof after such revocation.
• User Representations
You hereby represent and warrant that:
• you are over the age of 18, are an emancipated minor under the laws of your state of domicile and/or residence, or otherwise have the power and authority to enter into and perform your obligations under these Terms;
• You are not under the age of 13;
• all information provided by you to UpStream Digital is truthful, accurate, and complete and that you will maintain the accuracy and completeness of that information by regularly updating UpStream Digital as to any changes, including, without limitation, to your legal name, address, email address and any other information that UpStream Digital may reasonably require;
• you are an authorized signatory of the credit or debit card, or other method of payment, that you provide to UpStream Digital or its third-party payment processor to pay the purchase price and any applicable fees or taxes related to your purchases of products and/or services via our Site;
• you will comply with these Terms and all other agreements and terms related to your use of our Site;
• you will immediately notify UpStream Digital should you learn or suspect that your registration information, username, or password has been disclosed or otherwise made known to any other person;
• you do not intend to, are not, and will not, use any of our Products or Services for any purpose other than personal, informational, and non-commercial purposes;
• you do not intend to, are not, and will not use any of our Products or Services for the intended or unintended purpose or consequence of increasing your viewers, followers, likes, subscribers, or the like for financial gain, including, but not limited to, actually or potentially misleading advertisers to believe these viewers, followers, likes, subscribers, or the like were obtained naturally;
• you understand that we can neither confirm nor deny the authenticity or provenance of our products and services delivered; and
• you agree that your representations and warranties, as described herein, are ongoing in nature so long as you are purchasing, using, and/or benefiting from our Products or Services.
In the event that you post any User Content via our Site, you hereby make the following additional representations and warranties to UpStream Digital:
• you are the owner of such User Content or otherwise have the right to grant UpStream Digital the licenses granted pursuant to these Terms;
• you have secured any and all consents necessary to post the User Content and to grant the forgoing licenses;
• the User Content does not violate the rights of any third-party;
• the use of any User Content will not result in harm or personal injury to any third-party;
• the use of any User Content by UpStream Digital pursuant to these Terms will not violate the intellectual property rights of any third party; and
• all factual information contained in the User Content is true and accurate.
• UpStream Digital Intellectual Property
All trademarks, service marks, and logos appearing on this Site are the exclusive property of their respective owners. The trademarks, service marks, logos, trade dress, and other graphics that are owned by UpStream Digital may not be used without the prior express written permission of UpStream Digital. All Content on the Site, whether separate or compiled, including, but not limited to, text, graphics, audio clips, logos, buttons, images, software, html code, xml code, and any other protectable works of authorship, is protected by copyright. The materials and Content on the Site may not be reproduced, recreated, modified, accessed, or used in any manner in violation of these Terms. Any unauthorized use of any Content, whether owned by UpStream Digital or any third party, may violate copyright laws, trademark laws, privacy and publicity laws, and communications regulations and statutes. You will not copy, reverse engineer, disassemble, decompile, translate, or modify the intellectual property found in the Site or grant any other person or entity the right or access to do so. No right, title, or interest in the Content, in any downloaded materials, or in the copyrights, trademark, patent, or other intellectual property rights associated therewith is transferred to you as a result of your use of the Site. Such right, title, and interest remain the property of their respective owners.
• Copyright Information
If you believe that your copyrighted work is being infringed, please alert UpStream Digital by providing the following information:
• an electronic or physical signature of the owner or person authorized to act on behalf of the owner of the copyright interest;
• a description of the copyrighted work that has been infringed;
• a description of the content on the Site that you claim infringes your copyright;
• a description of where the infringing content is located on the Site sufficient to allow us to locate the allegedly infringing material;
• your complete contact information, including address, telephone number, and e-mail address;
• a declaration, made under penalty of perjury, by you that (1) you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (2) the information in your notice is accurate; and (3) you are the copyright owner or authorized to act on the copyright owner’s behalf.
This information can be provided via email to:
• No Warranties; Disclaimer
UpStream Digital makes reasonable efforts to maintain the Site and provide accurate, up-to-date information on the Site. HOWEVER, WE AND OUR PARTNERS, SUPPLIERS, CONTENT PROVIDERS, LICENSORS, EMPLOYEES, AGENTS, OR THE LIKE MAKE NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES AS TO THE USABILITY, AVAILABILITY, ACCURACY, QUALITY, RELIABILITY, SECURITY, CONDITION, OPERATION, SUITABILITY, REASONABLE CARE, TIMELINESS, TRUTHFULNESS, OR COMPLETENESS OF THE INFORMATION, PRODUCTS, SERVICES, OR OTHER CONTENT OR MATERIALS PROVIDED THROUGH THE SITE, AND YOU SHOULD NOT RELY UPON THEM. YOUR USE OF THE SITE IS AT YOUR SOLE RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM THE USE OF THE SITE.
THE SITE IS PROVIDED “AS IS” AND NEITHER UPSTREAM DIGITAL NOR ANY OF ITS PARTNERS, SUPPLIERS, CONTENT PROVIDERS, LICENSORS, EMPLOYEES, AGENTS, OR THE LIKE (A) MAKES ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING THE USABILITY, CONDITION, OR OPERATION OF THE SITE; (B) REPRESENT OR WARRANT THE USABILITY, AVAILABILITY, ACCURACY, QUALITY, RELIABILITY, SECURITY, CONDITION, OPERATION, SUITABILITY, REASONABLE CARE, TIMELINESS, TRUTHFULNESS, OR COMPLETENESS OF THE INFORMATION, PRODUCTS OR OTHER CONTENT OR OTHER MATERIALS MADE AVAILABLE THROUGH OR DISPLAYED IN ANY MANNER ON THE SITE. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN TO YOU BY UPSTREAM DIGITAL OR ANY OF ITS PARTNERS, CONTENT PROVIDERS, AGENTS, OR THE LIKE SHALL CREATE ANY WARRANTY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER UPSTREAM DIGITAL NOR ANY OF ITS PARTNERS, CONTENT PROVIDERS, AGENTS, OR THE LIKE WARRANTS THAT ACCESS TO, OR USE OF, THE SITE WILL BE UNINTERRUPTED, VIRUS FREE, OR ERROR FREE, OR THAT THE SITE (INCLUDING, WITHOUT LIMITATION, ANY CONTENT ON THE SITE) WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY, AND ANY SUCH WARRANTIES ARE HEREBY DISCLAIMED. UPSTREAM DIGITAL, ON BEHALF OF ITSELF AND ALL OF ITS PARTNERS, AGENTS, AND THE LIKE, HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF TITLE AND/OR NON-INFRINGEMENT WITH RESPECT TO THE SITE.
UPSTREAM DIGITAL, ON BEHALF OF ITSELF AND ALL OF ITS PARTNERS, AGENTS, AND THE LIKE, EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY AND ALL SERVICES, PRODUCTS, AND CONTENT ON THE SITE.
UpStream Digital does not control User Content posted by its users, nor does it have any obligation to monitor such User Content for any purpose. Despite the fact that we have no monitoring obligations, UpStream Digital reserves the right to remove any and all Content, materials, and/or User Content that it feels is actually or potentially inappropriate, offensive, illegal, harmful in any way, or which may violate these Terms. Furthermore, UpStream Digital does not make any warranties or representations regarding any of the User Content offered on the Site, or the quality thereof. UpStream Digital does not necessarily approve, endorse, sanction, encourage, verify, or agree with any message posted by its users or otherwise embodied in the User Content. You understand that by using the Site, you may be exposed to User Content that may be offensive, indecent, vulgar, defamatory, or otherwise objectionable, and that in no way shall UpStream Digital be liable under any theory for such exposure. UpStream Digital is not a backup service for storing User Content, and shall have no liability regarding any loss thereof. You are solely responsible for creating backups of any User Content you posted on our Site.
• Limitations of Liability
Under no circumstances shall UpStream Digitalor any of its employees, directors, officers, agents, vendors, or suppliers be liable TO YOU for (A) any DAMAGES OF ANY NATURE WHATSOEVER RESULTING FROM, OR RELATED TO, THE LOSS, DELAY, OMISSION, ERROR, OR INABILITY TO USE THE SITE, (INCLUDING, WITHOUT LIMITATION, ANY INFORMATION, PRODUCTS, SERVICES, AND/OR OTHER MATERIALS OFFERED OR OBTAINED THROUGH THE SITE), PURCHASE OR USE OF OUR PRODUCTS, OR PURCHASE OR USE OF OUR SERVICES; or (B) ANY direct, indirect, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR THE LOSS OF PROFITS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS, THE USE OR PERFORMANCE OF THE SITE (INCLUDING, WITHOUT LIMITATION, ANY INFORMATION, PRODUCTS, SERVICES, AND/OR OTHER MATERIALS), WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE AND EVEN IF UPSTREAM DIGITAL, ITS PARTNERS, SUPPLIERS, CONTENT PROVIDERS, LICENSORS, EMPLOYEES, AGENTS, OR THE LIKE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. You hereby waive any claims with respect to such damages.
IN ALL EVENTS, UPSTREAM DIGITAL’S MAXIMUM LIABILITY TO YOU FOR ANY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS, THE USE OR PERFORMANCE OF THE SITE (INCLUDING, WITHOUT LIMITATION, ANY INFORMATION, PRODUCTS, SERVICES, AND/OR OTHER MATERIALS) HEREUNDER SHALL NOT EXCEED THREE HUNDRED RANDS (R300.00) IN THE AGGREGATE. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE (INCLUDING, WITHOUT LIMITATION, ANY INFORMATION, PRODUCTS, SERVICES, content, AND/OR OTHER MATERIALS), OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE.
These provisions represent a reasonable allocation of the risks under these Terms. UpStream Digital’s willingness to allow you to use the Site, purchase or use the Products offered on the Site, and/or purchase and use the Services offered on the Site, reflects this allocation of risk and the limitations of liability specified herein.
You agree to defend, indemnify, and hold harmless UpStream Digital, its officers, members, directors, employees, content providers, and agents from and against any and all claims, liabilities, suits, damages, losses or expenses, including attorneys' fees and costs and expenses, arising out of (a) a breach or alleged breach by you of any of your representations, warranties, covenants, or obligations under these Terms; (b) any claims based upon your access to, use of, or posting of User Content to the Site or information on the Site, including, without limitation, any claim of libel, defamation, violation of legal rights of others (including rights of privacy or publicity), loss of service by other subscribers, and/or infringement of intellectual property rights; and/or (c) any negligence or willful misconduct by you.
• Your Assumption of Risk
You agree that your decision to use the Site, and your decision to purchase or use any of our Products or Services, is solely your decision, and that you are not relying, in whole or in any part, upon any statement or representation from UpStream Digitalin making any such decision. You understand and agree that UpStream Digital, its officers, members, directors, employees, content providers, and agents, shall in no way be responsible or liable for any accounts, photos, videos, and/or tracks that are suspended, banned, disabled, or removed due to your purchase or use of any of our Products or Services or your interaction with, or purchases from, the Site. All purchases and use of Products and Services are made at your own risk. Due to this we cannot refund after purchase if this has occurred to an account/content.
• Other Terms
No Waiver. The failure of either party to insist upon or enforce strict performance by the other party of any provision of these Terms shall not be construed as a waiver of any provision or right. Neither the course of conduct between you and UpStream Digital nor the trade practice shall modify any provision of these Terms.
Assignment. You may not assign, convey, subcontract, or delegate your rights, duties, or obligations under these Terms.
Injunction, Equitable Relief, and Specific Performance Available. The parties agree that breach of the provisions of these Terms would cause irreparable harm and significant injury to UpStream Digital which would be both difficult to ascertain and which would not be compensable by damages alone. As such, the parties agree that UpStream Digital has the right to enforce the provisions of these Terms by injunction (without necessity of posting bond), specific performance or other equitable relief without prejudice to any other rights and remedies UpStream Digital may have for your breach of these Terms.
Governing Law. The validity and effect of these Terms shall be governed by and construed and enforced in accordance with the laws of South Africa, without regard to its conflicts or choice of laws principles.
Binding Arbitration. ANY AND ALL DISPUTES, CLAIMS, OR CONTROVERSIES BETWEEN THE PARTIES (INCLUDING ANY DISPUTE INVOLVING ANY AFFILIATE OR AGENT OF THE PARTIES) ARISING OUT OF, IN CONNECTION WITH, OR IN ANY WAY RELATING TO THE SITE, OUR PRODUCTS, OR OUR SERVICES, INCLUDING BUT NOT LIMITED TO THE PURCHASE, SALE, OR USE OF SAME, (COLLECTIVELY, “DISPUTES”), SHALL BE SETTLED BY CONFIDENTIAL BINDING ARBITRATION ADMINISTERED BY THE ARBITRATION ASSOCIATION (“AA”) IN SOUTHERN AFRICA. LOCALE FOR ANY ARBITRATION SHALL BE IN GAUTENG, SOUTH AFRICA. THE PARTIES INTEND THAT THIS AGREEMENT TO ARBITRATE SHALL BE CONSTRUED AS BROADLY AS POSSIBLE. All Disputes shall be submitted to a single arbitrator. To the extent the Parties cannot agree on a single arbitrator, AA shall appoint one. Any final arbitration award shall be non-reasoned. If the amount in controversy is R50,000,000 or less, the Dispute shall be resolved exclusively as follows: (a) the Parties will not conduct discovery; (b) 14 days from the arbitrator’s appointment, the Parties will simultaneously exchange opening briefs, limited to 14,000 words, setting forth their position and specifying the relief sought and, 14 days after service of opening briefs, will submit answering briefs, limited to 7,000 words, responding to the other Party’s brief; (c) the arbitrator may, at its discretion, request supplemental briefing on any issue, but may not hold an evidentiary hearing; and (d) the arbitrator will issue a final arbitration award within 30 days of receiving answering or supplemental briefs, if requested. If the amount in controversy is greater than R50,000,000, then the arbitration shall be administered by AA pursuant to its Commercial Arbitration Rules and Procedures. Emergency Relief, including Temporary Restraining Orders and Injunctive Relief, shall be deemed requests for Emergency Relief under the AA’s Commercial Arbitration Rules, and shall only be resolved by arbitration. For all Disputes, the tribunal, or any arbitrator appointed on an expedited basis, shall have exclusive jurisdiction and authority to determine all threshold and gateway issues of arbitrability and jurisdiction. The tribunal shall strictly enforce the parol evidence rule, and shall not have discretion to consider extrinsic evidence concerning the construction or enforcement of unambiguous contractual provisions. Each Party shall pay its own expenses in such arbitration, including attorneys’ fees, except as otherwise set forth herein. If requested, the tribunal shall award pre-judgment interest at the then-prevailing South African statutory rate. An arbitration award may be confirmed in any jurisdiction in which a Party is subject to personal jurisdiction or otherwise possesses assets. THE PARTIES WAIVE ANY AND ALL CLAIMS AND ARGUMENTS THAT THE LAWS OR PUBLIC POLICIES OF ANY COUNTRY OTHER THAN SOUTH AFRICA SHALL APPLY TO ANY ASPECT OF ANY DISPUTE. For the avoidance of doubt, in the event any Party would like to commence a lawsuit in a court for any claim whatsoever, it must notify the other Parties of its intention to do so and give the adverse Party or Parties five (5) business days to determine and respond as to whether the contemplated lawsuit is within the scope of this arbitration provision. If the Parties cannot resolve the issue of arbitrability within ten (10) business days of when notice is first given to the receiving Party, then the Parties hereby agree to resolve the issue of arbitrability and any related jurisdiction question by submitting to binding arbitration in South Africa. The Parties acknowledge and agree that any Dispute would inevitably involve highly confidential issues of a commercially sensitive nature that, if released, would cause the Parties irreparable harm. Accordingly, to the extent any Party commences any action or proceeding in court, such Party is required to make filings under seal, unless and until ordered by a Court to make filings publicly. In the event any Party breaches this agreement to arbitrate by publicly disclosing information concerning any Disputes, that Party shall be required to pay the other Party for its actual attorneys’ fees incurred in enforcing this agreement to arbitrate, without prejudice to the potential payment of judicial or arbitrable sanctions. The Parties recognize that each other’s agents and Affiliates are express third-party beneficiaries of this provision and such agents and Affiliates may enforce this provision to arbitrate to the fullest extent. In the event any provision of this agreement to arbitrate is deemed to be unenforceable or contrary to public policy, such provision shall be severable, and the remainder of this agreement to arbitrate shall remain in effect and enforceable to the greatest possible extent.
Attorneys’ Fees, Costs, and Expenses. If any action at law or in equity is necessary to enforce these Terms, the prevailing party will be entitled to reasonable fees of attorneys, accountants and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
Entire Agreement. These Terms, together with those incorporated herein or referred to herein constitute the entire agreement between us relating to the subject matter hereof, and supersedes any prior understandings or agreements (whether oral or written) regarding the subject matter, and may not be amended or modified except in writing or by making such amendments or modifications available on this Site.
Severability. These Terms shall be deemed severable. In the event that any provision is determined to be unenforceable or invalid, such provision shall nonetheless be enforced to the fullest extent permitted by applicable law, and such determination shall not affect the validity and enforceability of any of the other remaining provisions.
Additional Terms. Additional terms and conditions may apply to purchases of goods and services through the Site, and you agree to abide by such other terms and conditions.
Headings. The headings used in these Terms are included for convenience only and will not limit or otherwise affect these terms.
Use of Site Outside South Africa. If you access the Site from outside of the South Africa, you are responsible for compliance with all applicable South African laws.
Personal identification information
We may collect personal identification information from Users in a variety of ways, including, but not limited to, when Users visit our site, register on the site, place an order, subscribe to the newsletter, fill out a form, and in connection with other activities, services, features or resources we make available on our Site. Users may be asked for, as appropriate, name, email address, mailing address. Users may, however, visit our Site anonymously. We will collect personal identification information from Users only if they voluntarily submit such information to us. Users can always refuse to supply personally identification information, except that it may prevent them from engaging in certain Site related activities.
Non-personal identification information
We may collect non-personal identification information about Users whenever they interact with our Site. Non-personal identification information may include the browser name, the type of computer and technical information about Users means of connection to our Site, such as the operating system and the Internet service providers utilized and other similar information.
Web browser cookies
How we use collected information
UpStream Digital may collect and use Users personal information for the following purposes:
- To improve customer service
Information you provide helps us respond to your customer service requests and support needs more efficiently.
- To improve our Site
We may use feedback you provide to improve our products and services.
- To run a promotion, contest, survey or other Site feature
To send Users information they agreed to receive about topics we think will be of interest to them.
- To send periodic emails
We may use the email address to send User information and updates pertaining to their order. It may also be used to respond to their inquiries, questions, and/or other requests. If User decides to opt-in to our mailing list, they will receive emails that may include company news, updates, related product or service information, etc. If at any time the User would like to unsubscribe from receiving future emails, we include detailed unsubscribe instructions at the bottom of each email.
How we protect your information
We adopt appropriate data collection, storage and processing practices and security measures to protect against unauthorized access, alteration, disclosure or destruction of your personal information, username, password, transaction information and data stored on our Site.
Sensitive and private data exchange between the Site and its Users happens over a SSL secured communication channel and is encrypted and protected with digital signatures.
Sharing your personal information
We do not sell, trade, or rent Users personal identification information to others. We may share generic aggregated demographic information not linked to any personal identification information regarding visitors and users with our business partners, trusted affiliates and advertisers for the purposes outlined above. We may share your personal information such as Name, Address, Email and more with third parties in the event it is required perform specific actions. This includes but is not limited to:
Your acceptance of these terms
By using this Site, you signify your acceptance of this policy. If you do not agree to this policy, please do not use our Site. Your continued use of the Site following the posting of changes to this policy will be deemed your acceptance of those changes.