Upswing Terms and Conditions
Effective Date: October 29, 2024
Overview
1. Portions of this Terms and Conditions Agreement ("Agreement") may be superseded by separate subsequent Agreements between Upswing and its Member institutions. Please read carefully the following terms and conditions and all other policies and Agreements referenced herein. This Agreement governs your access to and use of the Site, Services and content (defined below) and constitute a binding legal Agreement between you and Upswing.
2. Upswing and all material contained herein are Copyright © 2024, Upswing International, Inc. All rights reserved. Materials contained herein may not be reproduced, distributed, modified, transmitted, reused, or reposted for commercial purposes without Upswing's written permission.
3. Upswing logos and the unique trade dress of Upswing are service marks of Upswing International, Inc. All other trademarks, service marks, and logos used in this site are the trademarks, service marks, and logos of their respective owners.
Introduction
4. Upswing International, Inc. ("our", "we", or "us"), provides "Upswing," the online retention platform that allows Upswing's network of Tutors as well as institution-specific team Members (collectively, "Tutors") and Students (Tutors and Students collectively, "Members") to connect for communication, interaction, Tutoring, ratings, and referrals via the Upswing Site, which may occur via instant messaging, video chat, voice calls, messaging, document sharing and collaboration, and whiteboard use, ("collectively the Services") via https://www.upswing.io, https://www.upswing.co, or any of their subdomains ("the Site").
5. Members agree that by accessing or using the Site or services, searching for a Tutor via the site or services, or by posting any content on the site or through the services, Members acknowledge having read and understood this Agreement and agree to be bound by this Agreement.
Upswing Site and Services
6. Upswing is a retention platform that provides online instruction to Students through both Upswing's network of Tutors and institutions' own team Members. Upswing itself does not provide Tutoring services, although Upswing does, from time to time, monitor and/or review interactions. As such, Upswing is not an employer of any individual Member. While Upswing does utilize a verification and vetting process for Upswing's network of Tutors, Upswing does not claim to have control over the truth, accuracy, quality, safety, morality or legality of any aspect of the services offered by Members and Member-generated content. Any and all in-person meetings between Members is outside of the scope of Upswing's offerings and shall be at the Members' sole risk.
7. By using the Site or services, Members agree: (1) any legal remedy or liability sought for actions or omissions of Tutors, Students, other Users, or other third parties will be limited to a claim against the particular Tutor, Student, third party, or other User or the third parties who caused such harm; and (2) not to attempt to impose liability on, or seek any legal remedy from Upswing with respect to such actions or omissions.
8. At any rate, Upswing's liability shall be limited to the amount of fees paid to Upswing in the 12 months prior to the action giving rise to liability. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply in those states.
9. Members agree to indemnify and hold Upswing and its subsidiaries, affiliates, officers, directors, agents, and employees harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of this Agreement or the documents it incorporates by reference, or for violation of any law or the rights of a third party.
Membership Eligibility
Tutors
10. All Tutors must adhere to the standards set by Upswing for provision of services on Upswing.
11. Tutors shall not utilize the Upswing platform to actively solicit services from Students, nor shall Tutors use the Upswing platform to try to obtain the contact information of Students for purposes other than the direct furtherance of the particular session. Any such activity is prohibited and may result in account suspension or termination at the sole discretion of Upswing.
12. From time to time, Tutors may receive personal information from, or on behalf of, the Student - including but not limited to - academic performance, skill sets, and location information. In compliance with the Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99), Tutors shall not disseminate any such information outside of the Upswing platform.
13. From time to time, Tutors may receive information from, or on behalf of, Students who engage in athletics at their respective institutions ("Student-Athletes"). Such information may include the health of such Student-Athletes. In compliance with NCAA regulations, Tutors shall not disseminate any such information regarding the health or performance of any Student-Athletes the Tutors connect with through Upswing.
14. Tutors shall not provide any physical materials to any Student-Athletes on the Upswing platform, including but not limited to pens, papers, and other academic materials.
15. While Tutors are active on the Upswing platform, Tutors shall not place in gambling bets based upon information Tutors may learn regarding the health or performance of any Student-Athletes.
16. Tutors understand that access to Upswing can be revoked at any time for failure to comply with the terms of this Agreement, or for behavior that is deemed counterproductive to the goals of Upswing.
17. Upswing may, at Upswing's sole discretion, change some or all of Upswing's services at any time. In the event that Upswing introduces a new service, the fees for that service will be clearly posted and are effective at the launch of the service.
18. Tutors are solely responsible for Tutors' conduct and activities on, regarding, and related to Upswing and any and all data, text, information, Member names, graphics, images, photographs, profiles, audio, video, items, and links (together, "content") shared, submitted, posted, and displayed on Upswing.
19. Tutors agree that content and use of Upswing shall not: (i) be false, inaccurate or misleading, (ii) be fraudulent or involve the sale of illegal, counterfeit or stolen items, (iii) infringe upon any third-party's intellectual property rights, (iv) violate this Agreement, Upswing's Privacy Policy, or or any applicable law, statute, ordinance or regulation, (v) be defamatory, libelous, threatening, harassing, impersonate or intimidate any person, or falsely state or otherwise misrepresent an affiliation with any person, through for example, the use of similar email address, nicknames, or creation of false account(s) or any other method or device, (vi) be obscene or contain pornography, (vii) contain or transmit any code of a destructive nature that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information, (viii) modify, adapt or hack Upswing or modify another website so as to falsely imply that it is associated with Upswing, or (ix) appear to create liability for Upswing or cause Upswing to lose (in whole or in part) the services of Upswing's ISPs or other suppliers.
20. Funds available in a Member's account and any account balance may be forfeited upon breach of this Agreement.
21. Upswing processes all payments to Tutors at least two times per month. At Upswing's discretion, these payments may occur more frequently. All payments shall occur by either: (1) issuing a check to the requesting Tutor at the mailing address provided by the Tutor; or (2) issuing a payment via PayPal at the PayPal Account provided by the Tutor.
22. In accordance with applicable laws, Upswing will file Form 1099-K, or other required documentation, to report unadjusted annual gross sales information for sellers that meet both of the following thresholds in a calendar year (reporting): (1) more than $15,000 in gross sales and (2) more than 200 transactions.
Students
23. Student represents and warrants that all registration information submitted is accurate and truthful. Student affirms that he/she is either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent to enter into this Agreement, and is fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in Agreement, and to abide by and comply with these Terms of Service.
24. In any case, Student affirms that he is over the age of 13, as the Service is not intended for children under 13.
25. Student agrees to comply with all local laws regarding online conduct and acceptable content. In addition, Student must abide by Upswing's policies as stated in the Agreement and any of Upswing's policies applicable to activities on or use of the Site as well as all other operating rules, policies and procedures that may be published from time to time.
26. In connection with the receipt of Tutoring services, Student may have the opportunity to leave feedback and make comments about Student's experience with the Coach. Upswing advises all Students to exercise caution and good judgment when leaving such comments. Once comments are submitted, Student will will not be able to go back and edit their comments. Moreover, Student could be held legally responsible for damages to someone's reputation if comments are deemed to be defamatory. Upswing has no obligation to monitor or censor comments that are provided by Members, but has the right to do so for the purpose of operating the Site and Services, to ensure compliance with this Agreement or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Upswing disclaims any and all liability relating to Tutor Reviews. Notwithstanding the foregoing, Upswing does reserve the right, in its sole discretion, to remove any Review that it deems to be inconsistent with the online activities that are permitted under this Agreement.
All Members
27. While using the Upswing platform, students may from time to time contact an Upswing representative through chat or via phone for technical support. Student, who may intend to contact Upswing support via chat and/or phone, hereby affirms that he/she is either more than 18 years of age, or an emancipated minor, or possesses legal parental or guardian consent to contact Upswing support via chat and/or phone.
28. All Members are responsible for safeguarding and maintaining the confidentiality of login information and corresponding account information. All Members agree not to disclose passwords to any third party and that Members are entirely and solely responsible for any and all activities or actions that occur under the Member's Account. Member will immediately notify Upswing at support@upswing.io of any unauthorized use of the password or Account. Member agrees that Upswing cannot and will not be liable for any loss or damage arising from failure to keep the password secure, or from third-party use of the account.
29. Member shall not permit, enable, introduce or facilitate (I) persons who do not have an account to have access to or use the features of the Site and or services only made available to registered Members; and (ii) other Users to use a specific Service through the Member's Account.
30. Upswing reserves the right, in Upswing's sole discretion, to cancel unconfirmed or inactive accounts. Upswing reserves the right to refuse service to anyone, for any reason, at any time.
31. If Student feels that he or she was not sufficiently provided services through the Upswing Tutoring session - Student must contact Upswing at support@upswing.io.
32. Member understands and agrees that provision of services may require use of a third party website or service (each a "Third-Party Service"). Use of any Third Party Service is voluntary. Member shall be solely responsible for acquiring, paying for, and maintaining all telecommunications, Internet services, hardware, software, materials, supplies, etc. Upswing shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such Third-Party Service.
33. Member authorizes Upswing, its affiliates, agents, and independent contractors to contact Member in regards to receiving alerts, notifications, updates, or other important aspects of the company.
34. Member acknowledges and agrees that Upswing does not have an obligation to conduct reference checks, background checks, or subject matter checks on or to interview or screen any User of the site or services, including, but not limited to, Tutors, but may conduct such reference checks or interviews in its sole discretion.
35. Institutions who offer the Upswing services to its Students have the right to request access to personal information and electronic conversations occurring through Upswing. Upswing provides such information -- specifically and in aggregate -- through the Institution's Upswing Admin Panel. Institutions, however, are subject to the Family Education Rights and Privacy Acts of 1974 (FERPA) restrictions on further disclosure. For further information on FERPA rules and responsibilities, Students should contact their school administrator.
36. By using Upswing, Member agrees to be automatically opted into Upswing communications including, when applicable, Ana and platform SMS messages and email communications. Member can adjust messaging preferences within their Upswing platform or opt out of SMS messages by replying ‘STOP’ at any time. Member can opt out of email communications by clicking the ‘unsubscribe’ link at the bottom of all Upswing email communications.
37. By using Upswing, Member agrees to the above stated terms and conditions. Unless otherwise stated in subsequent Agreements between Upswing and the institution using this service, this Agreement is entered into in the State of Delaware and shall be construed in accordance with the laws of Delaware, exclusive of its choice of law rules. Each party to this Agreement submits to the exclusive jurisdiction of the state and federal courts having jurisdiction in Delaware, and waives any jurisdictional, venue, or inconvenient forum objections to such courts. In any action to enforce this Agreement, the prevailing party will be entitled to costs and attorneys' fees. In the event that any of the provisions of this Agreement are held to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. This Agreement constitutes the entire understanding between the parties pertaining to the subject matter hereof, and any prior written or oral Agreements between the parties are expressly canceled. Upswing may modify the terms of this Agreement by posting notice of such modification on this page before the modification takes effect. Member shall be bound by such revisions and should periodically visit this page to review the current Agreement.
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