END USER LICENSE AGREEMENT AND TERMS OF SERVICE

This End User License Agreement and Terms of Service (the “EULA”) is a binding contract between you, an individual user (“you”) or the Subscribing Entity (defined below) on whose behalf you are acting, and ABM Design, LLC (“us” or “we”) governing your use of Upstairs services available through the UPSTAIRS website (the “Website”), as well as your access to and use of the Website. BY ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE EULA. IF YOU DO NOT AGREE TO THE EULA, THEN YOU MAY NOT USE THE SERVICE.

To have a copy of the EULA and the Upstairs Privacy Policy (the “Privacy Policy”) sent to you, contact UPSTAIRS at studio@upstairs.design.

1) Summary of Material Terms.

1.1) As provided in greater detail in the EULA (and without limiting the express language of the EULA), you acknowledge the following:

1. a) you consent to the collection, use, and disclosure of your personally identifiable information in accordance with the Privacy Policy, including with respect to the collection of location information;
2. b) the Website and Service is provided “as is” without warranties of any kind and UPSTAIRS’ liability to you is limited; and
3. c) disputes arising hereunder will be resolved by binding arbitration.

2) General.
The Service is a platform enabling people and companies seeking interior design services (“Clients”) to get a custom interior design, including one final design plan, and one revision of the final design plan based on user comments (Clients are “Users”).

2.1) Acceptance of Privacy Policy. Your use of the Service is subject to the Privacy Policy, which is available by email and is hereby incorporated by reference into the EULA. By using the Service you agree that you have read, understood, and agreed to the data collection, use, and disclosure provisions set forth in the Privacy Policy.

2.2) Third Party Fees. You may incur third party fees through use of the Service, such as fees charged by Vendors (defined below) for products or services. In addition, you may be subject to third party terms, such as Vendors’ warranties and return policies. You acknowledge and agree that you are solely responsible for all such fees incurred by you for use of the Service, and you agree to pay all such fees and abide by all such terms.

2.3) Changes to the EULA. We may revise the EULA at any time by posting an updated version. You should visit this page periodically to review the most current EULA, because you are bound by it. Your continued use of the Service after a change to the EULA constitutes your binding acceptance of the EULA.

2.4) Eligibility. If you are using or opening an account on the Service on behalf of a company, entity, or organization (each a “Subscribing Entity”), then you represent and warrant that you: (i) are an authorized representative of that Subscribing Entity with the authority to bind such entity to the EULA and (ii) agree on behalf of such Subscribing Entity to bind the Subscribing Entity to the EULA.

2.5) Children. No part of the Service is directed to persons under the age of 18. IF YOU ARE UNDER 18 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER.

3) Scope of License to Users.

3.1) License Grant to You. The Website is licensed, not sold, to you for use only under the terms of the EULA. Subject to your complete and ongoing compliance with the terms and conditions of the EULA, UPSTAIRS hereby grants you a personal, limited, revocable, non-transferable license to access and use the Website, in both instances solely for your own use or for the use of the Subscribing Entity on whose behalf you are authorized to act to access and receive the Service.

3.2) License Limitations. You may not modify, alter, reproduce, or distribute the Website. You may not rent, lease, lend, sell, redistribute or sublicense the Service or Website. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any portion of the Website, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law), nor attempt to disable or circumvent any security or other technological measure designed to protect the Service or Website or any content available through the Service. If you breach these license restrictions, or otherwise exceed the scope of the licenses granted in the EULA, then you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights, and denial of access to the Service.

3.3) Applicability to Updates. The terms of the EULA will govern any updates provided to you by UPSTAIRS that replace and/or supplement the Website or App, unless such upgrade is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern.

4) Registration and Eligibility.

4.1) Account Types and Registration. Anyone may browse the public-facing pages of the Website and Service, but to start the custom design plan, the client must register.

4.2) Client. To become a UPSTAIRS Design Client, you must provide your zip code, phone number, email address, name and in some cases your credit card number. You will provide us photos of your space, and provide us additional information about your room and project. You will then either meet in person or via video call with your designer. The designer will then provide you recommendations for your space as well as a shoppable list of products according to your service package selected.

5) Content You Submit; License Grants from You.

5.1) Your Content. If you are a Client, you may be able to create, post, or share content, such as messages, comments, or pictures of your space, floor plans and household objects, on or through the Service (“Your Content”) with UPSTAIRS. Your Content may be made public, so do not upload any confidential content. UPSTAIRS claims no ownership or control over Your Content. You or a third-party licensor, as appropriate, retain all copyright, patent, and trademark rights to any of Your Content that you post on or through the Service. You are responsible for protecting those rights. Separately, you may give UPSTAIRS or UPSTAIRS’ agent the right to take photos or record video of areas of your home after the design services are complete (“After Images”).

5.2) You, and not UPSTAIRS, are responsible and liable for Your Content. Because we do not control the Your Content or the content posted on or through the Service by other users (collectively with Your Content, “UGC”), we cannot and do not warrant or guarantee the truthfulness, integrity, suitability, or quality of that UGC. You also agree and understand that by accessing this Service, you may encounter UGC that you may consider to be objectionable. We have no responsibility for any UGC, including without limitation any errors or omissions therein.

5.3)We may disclose and/or remove UGC. UPSTAIRS has certain rights. We have the right (but do not assume the obligation) to:

1. a)monitor all UGC;
2. b)remove or block any UGC at any time without notice at our sole and absolute discretion;
3. c)disclose any UGC and the identity of the user who posted it in response to a subpoena or whenever we believe that disclosure is appropriate to comply with the law or a court order, to prevent or investigate a possible crime or other violation of law, to protect the rights of UPSTAIRS or others, or to enforce these terms; and
4. d)terminate your access to and use of this Service, or to modify, edit or block your transmissions thereto, for any reason and in our sole discretion.

5.4) You agree that our exercise of such discretion shall not render us the owners of UGC you post, and that you will retain ownership thereof as described above.

5.5) Your Content cannot be unlawful, harmful, hateful, threatening, abusive, harassing, libelous, defamatory, obscene, vulgar, pornographic, profane, racially disparaging, indecent, or invasive of another’s privacy.

5.6) License Grants to UPSTAIRS. By creating, posting, or sharing Your Content on or through the Service, or allowing UPSTAIRS to take, obtain, or record After Images, you grant UPSTAIRS a world-wide, non-exclusive, sub-licensable, royalty-free, fully paid, transferable, perpetual, irrevocable license to use, modify, remove, publish, transmit, or display Your Content and After Images in any and all media or form of communication now existing or hereinafter developed in order to operate UPSTAIRS’ business, and to provide Services, including, without limitation, (a) facilitate a design or recommended product list for the Client (b) advertise and promote the Service, and (c) with regard to After Images only, for any lawful business purpose.

5.7) You Must Have Rights to the Content You Post. You represent and warrant that: (i) you own Your Content or otherwise have the right to grant the license set forth in the EULA, (ii) the posting and use of Your Content on or through the Service, or of the After Images does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, and (iii) the posting of Your Content on the Service does not result in a breach of contract between you and a third party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of Your Content that you post on or through the Service You also acknowledge and agree that Your Content and After Images is non-confidential and non-proprietary.

5.8) Users may message each other through the Service. You agree that your use of the Service will not include sending unsolicited marketing messages or broadcasts (i.e. spam). UPSTAIRS will utilize any means possible to block spammers and abusers from using the Service If you believe spam originated from the Service, please email us immediately at studio@upstairs.design.

6) Fees; Payments.

6.1) Fees. The fee (the “Fee”) to be charged to Clients for the Service(s) purchased will be set forth during the ordering process for the Service(s) that you go through on the Website. A deposit payment is due at check-out. The remaining Fee amount is due and payable in advance of Client’s design or product recommendation process, following the initial design consultation.

6.2) Payments. The Service currently uses third parties to process payments. Our third-party payment processors accept payments through various credit cards, as detailed on the applicable payment screen. All monetary transactions on the Service take place in U.S. Dollars. When you use the Service to place an order for merchandise, you authorize the purchase and delivery of the merchandise. You agree that UPSTAIRS will obtain a temporary pre-authorization of your credit card to cover the cost of the merchandise you have purchased, along with any estimated taxes, fees, and shipping costs, and excluding any unvalidated promotions. Your credit card statement will reflect the final total amount charged to you upon order completion.

6.3) Taxes. The Fees are exclusive of tax. Clients are responsible for determining and paying the appropriate government taxes, fees, and service charges resulting from a transaction occurring through the Service, except for taxes on UPSTAIRS’ income on the design service Fee. We are not responsible for collecting, reporting, paying, or remitting to you any such taxes, fees, or service charges, except as may otherwise be required by law.

6.4) Refunds. The Service may offer any Client a full refund at UPSTAIRS’ discretion. Please email studio@upstairs.design to request a refund.

7) Additional Services From UPSTAIRS.

7.1) Third Party Purchases. A Client may wish to purchase items from third parties (“Vendor”) through the Service. UPSTAIRS will collect the cost of the items from you in advance of placing orders with the Vendor for the purchase. All Vendor terms and conditions apply to these purchases, including return policies and shipping costs.

7.2) Installation. The Service may offer to assist Clients with installation of furniture (“Installation”) for a fee, which will be set forth on the Service. To facilitate Installation, UPSTAIRS may provide third party contractors personal information to identify location and costs, and facilitate Installation.

8) Third Party Materials; UPSTAIRS Content.

8.1) You understand that by using the Service, you may encounter data, information, applications, materials and other content from third parties, including other users (collectively, “Third Party Materials”), and data, information, applications, materials and other content from UPSTAIRS (collectively, “UPSTAIRS Content” and, together with Third Party Materials, but excluding Your Content, “Service Content”), that may be offensive, indecent, or objectionable Nevertheless, you agree to use the Service at your sole risk and that UPSTAIRS shall not have any liability to you for any Service Content that may be found to be offensive, indecent, or that is inaccurate, incomplete, untimely, invalid, illegal, indecent, of poor quality or otherwise objectionable You use the Service, and rely upon any Service Content accessible through the Service, at your sole risk.

8.2) In addition, third party services and Service Content that may be accessed from, displayed on or linked to your device are not available in all languages or in all countries UPSTAIRS makes no representation that the Service, any third party services, and Service Content are appropriate or available for use in any particular location To the extent you choose to access such services or materials, you do so at your own initiative and are responsible for compliance with any and all applicable laws.

9) Your Use of the Service and Service Content.

9.1) Your right to use the Service is a privilege, not a right, and is expressly conditioned on the following:

9.2) You may access the Service solely as intended through the provided functionality of the Service and as permitted under the EULA.

9.3) You shall not copy, reproduce, distribute, publish, display, perform, transmit, stream or broadcast any part of the Service or Website, or content you encounter on through the Service without UPSTAIRS’ prior written authorization, including, by way of example and not limitation, by doing or engaging in any of the following without UPSTAIRS’ express written consent:

1. a) altering, defacing, mutilating or otherwise bypassing any approved software through which the Service is made available; and
2. b) using any trademarks, service marks, design marks, logos, photographs or other content belonging to UPSTAIRS or obtained from the Service.

9.4) You shall not bypass, circumvent, damage or otherwise interfere with any security or other features of the Website designed to control the manner in which the Service is used, harvest or mine Service Content from the Service, or otherwise access or use the Service in a manner inconsistent with individual human usage. You shall not copy or scrape any Service Content.

9.5) You shall not undertake, cause, permit or authorize the translation, reverse engineering, disassembling or hacking of any aspect of the Website or Service, including any Service Content available on or through the Service, or attempt to do any of the foregoing, except and solely to the extent permitted by the EULA, the authorized features of the Service, or by law, or otherwise attempt to use or access any portion of the Service other than as intended by UPSTAIRS.

9.6) You shall not use, display, mirror, frame or utilize framing techniques to enclose the Service, including any Service Content available on or through the Service, or any portion thereof, through any other application or website, unless and solely to the extent UPSTAIRS makes available the means for embedding any part of the Service or Service Content.

9.7) You shall not access, tamper with, or use non-public areas of the Service, UPSTAIRS (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of UPSTAIRS’ providers.

9.8) You shall not harass, abuse, harm or advocate or incite harassment, abuse or harm of another person or group, including UPSTAIRS’ employees and other users.

9.9) You shall not provide any false personal information to UPSTAIRS or any other user, or create a false identify or impersonate another person or entity in any way.

9.11) You shall not solicit, or attempt to solicit, personal information from other users.

9.12) You shall not restrict, discourage or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of such person, or collect information about users.

9.13) You shall not use the Service, without UPSTAIRS’ express written consent, to communicate or facilitate any commercial advertisement or solicitation, except as expressly permitted in the EULA.

9.14) You shall not gain or attempt to gain unauthorized access to the Service, to other users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Service.

9.15) You shall not post, transmit or otherwise make available any virus, worm, spyware or any other computer code, file or program that may or is intended to disable, overburden, impair, damage or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service.

9.16) You shall not interfere with or disrupt the Service, or networks or servers connected to the Service, or violate the regulations, policies or procedures of such networks or servers.

9.17) You shall not violate any applicable federal, state or local laws or regulations or the EULA.

9.18) You shall not assist or permit any persons in engaging in any of the activities described above.

10) Consent to Use of Data.

10.1) You agree that UPSTAIRS may collect and use technical data and related information, including, but not limited to, UDID, contacts, usage data, location and other technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the Service, and to anonymously track and report your activity inside of the Service, including for analytics purposes Please see the Privacy Policy.

11) Ownership.

11.1) The Service, Service Content, After Images, and the media and materials contained therein, including all intellectual property rights therein, are the sole and exclusive property of UPSTAIRS and its licensors. Except for the limited licenses expressly granted to you under the EULA, no other rights, licenses, or immunities are granted or will be deemed to be granted to you under the EULA, either expressly, or by implication, estoppel or otherwise.

12) Feedback.

12.1) We appreciate hearing from our users and welcome your comments regarding the Service Please be advised, however, that if you send us creative ideas, suggestions, inventions, or materials (“Creative Ideas”), we will:

1. a) own, exclusively, all now known or later discovered rights to the Creative Ideas;
2. b) not be subject to any obligation of confidentiality and will not be liable for any use or disclosure of any Creative Ideas; and
3. c) be entitled to unrestricted use of the Creative Ideas for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.

13) Consequences of Violating These Terms.

13.1) We reserve the right to suspend or terminate your account and prevent access to the Service for any reason, at our discretion. We reserve the right to refuse to provide the Service to you in the future. UPSTAIRS may review and remove any of Your Content at any time for any reason, including activity which, in its sole judgment: violates the EULA; violates applicable laws, rules, or regulations; is abusive, disruptive, offensive or illegal; or violates the rights of, or harms or threatens the safety of, Users of the Service. You are responsible for any claims, fees, fines, penalties, and other liability incurred by us or others caused by or arising out of your breach of the EULA and your use of the Service.

14) UPSTAIRS’ Liability.

14.1) Changes to the Service. We may change, suspend, or discontinue any aspect of the Service at any time, including hours of operation or availability of the Service or any feature, without notice or liability.

14.2) User Disputes. We are not responsible for any disputes or disagreements between you and any third party you interact with using the Service. This includes disputes between Clients and designers. You assume all risk associated with dealing with third parties and designers. You agree to resolve disputes directly with the other party. You release UPSTAIRS of all claims, demands, and damages in disputes among users of the Service. You shall not involve us in such disputes. Use caution and common sense when using the Service. If you participate in an Installation, you are solely responsible for your interactions with other Users. You understand that UPSTAIRS does not currently conduct background checks, including criminal background checks, on its Users. UPSTAIRS makes no representations or warranties as to the conduct of Users. IN NO EVENT WILL THE RELEASED PARTIES (AS DEFINED BELOW) BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH YOUR USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER USERS OF THIS SERVICE OR PERSONS YOU MEET THROUGH THE SERVICE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER USERS OF THE SERVICE, PARTICULARLY IF YOU MEET OFFLINE OR IN PERSON. YOU ASSUME ALL RISK WHEN ENGAGING THE SERVICES OF ANY OTHER USER AND IN CONNECTION WITH USING THE SERVICE, INCLUDING BUT NOT LIMITED TO ANY RISKS ASSOCIATED WITH OBTAINING SERVICES FROM ANY DESIGNER OR PROVIDING ANY SERVICES TO ANY CLIENT, INCLUDING ALL RISKS OF PHYSICAL OR EMOTIONAL INJURY OR HARM RESULTING ANY WAY OR ARISING OUT OF INSTALLATION SERVICES OR CLIENTS OBTAINED THROUGH THE SERVICE. ALL USERS, INCLUDING CLIENTS AND DESIGNERS, HEREBY EXPRESSLY AGREE NOT TO HOLD THE RELEASED PARTIES LIABLE FOR ANY INSTALLATION, INSTRUCTION, ADVICE OR SERVICES DELIVERED WHICH ORIGINATED THROUGH THE SERVICE AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ANY LIABILITY WHATSOEVER FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES THAT ARISE OR RELATED IN ANY WAY TO THE SERVICE, THE INFORMATION PROVIDED THROUGH THE SERVICE AND THE SERVICES PROVIDED BY OR TO ANY USER OF THE SERVICE.

14.3) Content Accuracy. We make no representations about accuracy, reliability, completeness, or timeliness of any contents of the Service, including designs. Similarly, we make no representations about accuracy, reliability, completeness, or timeliness of any data from a third-party service provider or the quality or nature of third-party products or services obtained through the Service. Use the Service at your own risk.

14.4) Third-Party Websites. The Service may include links to third party websites and applications. You are responsible for evaluating whether you want to access or use them. We are not responsible for and do not endorse any features, content, advertising, products, or other materials on other websites or applications. You assume all risk and we disclaim all liability arising from your use of them. We make no promises and disclaim all liability of specific results from the use of the Service.

15) Termination.

15.1) The EULA is effective until terminated by you or UPSTAIRS. Your rights under the EULA will terminate automatically without notice from UPSTAIRS if you fail to comply with any term(s) of the EULA (including by violating any license restriction provided herein). You may terminate the EULA ceasing use of the Service. Upon any termination of the EULA, you must immediately cease all use of the Service. If you are a designer that was selected by a user to provide a design and you terminate your account before you have completely delivered the Design Package, you may not be allowed to use the Service in the future.

16) Disclaimer.

16.1) “Released Parties” include UPSTAIRS and its affiliates, officers, employees, agents, partners, and licensors YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, AND THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES OFFERED BY BUSINESSES LISTED ON THE SERVICE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) THE RELEASED PARTIES MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, INCLUDING DATA, WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY GOODS, DATA OR SERVICE AVAILABLE ON THE SERVICE WILL MEET YOUR EXPECTATIONS AND, (iv) ANY ERRORS IN THE SERVICE WILL BE CORRECTED; AND (C) ANY MATERIAL OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE USE OF ANY SUCH MATERIAL.

17) Limitation of Liability.

17.1) YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE RELEASED PARTIES WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF UPSTAIRS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE SITE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY USER OR THIRD PARTY ON THE SERVICE; (v) YOUR RELIANCE ON CONTENT OR DATA MADE AVAILABLE BY US; OR (vi) ANY OTHER MATTER RELATING TO THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.

TO THE FULLEST EXTENT POSSIBLE BY LAW, THE RELEASED PARTIES’ MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR YOUR USE OF COMPANY CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE GREATER OF (A), IF YOU ARE A CLIENT, THE FEES YOU HAVE PAID TO UPSTAIRS, (B) IF YOU ARE A DESIGNER, THE FEES PAID BY UPSTAIRS TO YOU, AND (C) $100.

18) Indemnity.

18.1) You agree to defend, indemnify, and hold harmless the Released Parties from and against any claims, actions, or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from (i) your use of or reliance on any Third-Party Content, (ii) your use of or reliance on any UPSTAIRS Content or designs, or (iii) your breach of the EULA. We will provide notice to you promptly of any such claim, suit, or proceeding.

19) Third Party Disputes.

19.1) UPSTAIRS IS NOT AFFILIATED WITH ANY SERVICE PROVIDER OR THIRD PARTY SERVICE, AND ANY DISPUTE YOU HAVE WITH ANY SERVICE PROVIDER, THIRD PARTY SERVICE OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE RELEASED PARTIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.

20) Copyright Policy.

20.1) The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials posted on the Service infringe your copyright, you (or your agent) may send UPSTAIRS a “Notification of Claimed Infringement” requesting that the material be removed, or access to it blocked The notice must include the following information:

1. a) A physical or electronic signature of a person authorized to act on behalf of the owner of the works that have been allegedly infringed;
2. b) Identification of the copyrighted work alleged to have been infringed (or if multiple copyrighted works located on the Service are covered by a single notification, a representative list of such works);
3. c) Identification of the specific material alleged to be infringing or the subject of infringing activity, and information reasonably sufficient to allow UPSTAIRS to locate the material on the Service;
4. d) Your name, address, telephone number, and email address (if available);
5. e) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. f) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

20.2) If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send UPSTAIRS a counter-notice.

20.3) Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details. If you believe your copyrighted content has been displayed inappropriately on the Service, please email studio@upstairs.design. Consult your legal advisor and see 17 U.S.C. ¤512 before filing a notice or counter-notice as there are penalties for false claims under the DMCA:

21) Dispute Resolution.

21.1) The EULA and the relationship between you and UPSTAIRS will be governed by the laws of the State of New York without regard to its conflict of law provisions. You and UPSTAIRS agree to submit to the personal and exclusive arbitration of any disputes relating to your use of the Service under the rules of the American Arbitration Association. Any such arbitration, to the extent necessary, shall be conducted in Kings County in the State of New York. You covenant not to sue UPSTAIRS in any other forum.

21.2) You also acknowledge and understand that, with respect to any dispute with the Released Parties arising out of or relating to your use of the Service or the EULA:

1. a) YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY;
2. b) YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE; AND
3. c) YOU MUST FILE ANY CLAIM WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE OR IT IS FOREVER BARRED.

22) Miscellaneous.

22.1) Assignment. You may not assign this EULA or any of the rights or licenses granted hereunder, directly or indirectly, including by sale, merger, change of control, operation of law or otherwise, without the prior written consent of UPSTAIRS. UPSTAIRS may assign the EULA, including all its rights hereunder, without restriction.

22.2) Survival. The provisions of the EULA that are intended to survive the termination of the EULA by their nature will survive the termination of the EULA, including, but not limited to, Sections 2 (General), 5 (Content You Submit; License Grants from You), 8 (Third Party Software), 9 (Your Use of the Service and Service Content), 10 (Consent to Use of Data), 11 (Ownership), 12 (Feedback), 14 (UPSTAIRS’ Liability), 15 (Termination), 16 (Disclaimer), 17 (Limitation of Liability), 18 (Indemnity), 19 (Third Party Disputes), 20 (Copyright Policy), 21 (Dispute Resolution), and 22 (Miscellaneous).

22.3) Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.

22.4) The EULA, together with the Privacy Policy and any other agreements expressly incorporated by reference herein, constitute the entire and exclusive understanding and agreement between you and UPSTAIRS regarding your use of and access to the Service, and, except as expressly permitted above, may be amended only by a written agreement signed by authorized representatives of all parties to the EULA. The failure to require performance of any provision will not affect our right to require performance at any time thereafter, nor will a waiver of any breach or default of the EULA or any provision of the EULA constitute a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in the EULA is for convenience only and will not have any impact on the interpretation of particular provisions. In the event that any part of the EULA is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect. You agree that no joint venture, partnership, employment, or agency relationship exists between you and UPSTAIRS as a result of the EULA or use of the Service.

22.5) Contacting UPSTAIRS. You can contact UPSTAIRS by e-mail at studio@upstairs.design, or by U.S. Post at UPSTAIRS, 557 Leonard St, Studio A 2nd Fl, Brooklyn, NY 11222.