Effective Date: January 1st, 2016
THIS AGREEMENT CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “USER”) AND UPPSTER INTERACTIVE TECHNOLOGIES, INC. D/B/A UPPSTER (“UPPSTER” OR “US”). THIS AGREEMENT GOVERNS YOUR USE OF OUR SERVICES AND PLATFORM THAT FACILITATES COMMUNICATIONS BETWEEN USERS OFFERED THROUGH OUR WEBSITE LOCATED AT WWW.UPPSTER.COM, AS IT MAY BE MODIFIED, RELOCATED AND/OR REDIRECTED FROM TIME TO TIME (THE “SITE”), AND THE MOBILE APPLICATIONS OFFERED BY US (THE “APPS”). OUR SERVICES, PLATFORM, SITE AND APPS ARE COLLECTIVELY REFERRED TO AS THE “UPPSTER PLATFORM”.
- Services Connect Professionals and Clients.Company provides an online marketplace that connects Users who are willing to provide Professional Services (“Professional(s)”) with Users who are looking for Professionals (“Clients”). Each Client request for Professional Services (a “Booking Request”) to be provided by one or more Professionals (the “Professional Services”) is hereinafter referred to as a “Mission”. Company does not employ Professionals, so the actual contracts for Professional Services are directly between Clients and Professionals. In providing the Service under this Term of Use it is expressly agreed that the Talent is acting as an independent contractor and not as an employee. Therefore the Client is solely responsible for any damages due to its negligence and liable for any injuries occurred at is workplace and to pay any indemnity to Talent. Client agrees not to claim any damages to Company resulting from injuries to Talent. No joint venture, partnership, employment, or agency relationship exists between any User, Talent and Company as a result of these Terms, or the use of the Company Properties.
COMPANY OFFERS INFORMATION AND A METHOD FOR CLIENTS TO REQUEST PROFESSIONAL SERVICES AND TO CONTRACT WITH ONE OR MORE PROFESSIONALS TO PROVIDE PROFESSIONAL SERVICES, BUT COMPANY DOES NOT PROVIDE PROFESSIONAL SERVICES AND HAS NO RESPONSIBILITY OR LIABILITY FOR ANY PROFESSIONAL SERVICES PROVIDED TO YOU BY PROFESSIONALS.
- Company Only Provides a Venue.While Company supplies Clients with Professionals who are available to provide Professional Services for Missions and facilitates these Missions by supplying a medium for exchange of money between Clients and Professionals, Company does not take part in the interaction between Users. We do not have control over the quality, timing, legality, or failure to provide Professional Services or any aspect whatsoever of any ratings provided by Users, or of the integrity, responsibility, or any actions of any Users. Company makes no representations about the suitability, reliability, or timeliness of the Professional Services provided by Professionals. Although Company may confirm that Professionals are licensed to provide Professional Services in the relevant jurisdiction, as described in Section 12.1 below, we cannot confirm that each User is who they claim to be. When interacting with other Users you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know. You are solely responsible for your interactions with other Users of Company Properties and any other parties with whom you interact through Company Properties. NEITHER COMPANY NOR ITS AFFILIATES OR THIRD PARTY PROVIDERS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES. COMPANY AND ITS THIRD PARTY PROVIDERS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF COMPANY PROPERTIES.
- Use of the Services and Company Properties.Company Properties and the information and content available on Company Properties are protected by copyright laws throughout the world. Subject to the Terms, Company grants you a limited license to reproduce portions of Company Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Company in a separate license, your right to use any Company Properties is subject to the Terms.
Application License. Subject to your compliance with the Terms, Company grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Company Properties or any portion of Company Properties, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Company Properties (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Company’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Company Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access Company Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Company Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Company Properties. Any future release, update or other addition to Company Properties shall be subject to the Terms. Company, affiliates and third party providers reserve all rights not granted in the Terms. Any unauthorized use of Company Properties terminates the licenses granted by Company pursuant to its Terms.
- Registration. Registering Your Account.In order to access certain features of Company Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account on the Website or through the Application (“Account”).
Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least eighteen (18+) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using Company Properties under the laws of the United States or Canada, your place of residence or any other applicable jurisdiction. As a User, you are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Company Properties by minors. You may not share your Account or password with anyone, and you agree to (1) notify Company immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your Account and refuse any and all current or future use of Company Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. You agree not to create an Account or use Company Properties if you have been previously removed by Company, or if you have been previously banned from any of Company Properties.
In addition, if you are registering to become a certified agent in your field of practice, you represent that your certificate or registration number (or other applicable government or administrative licensing organization or professional association) (“License”) is valid and in force; you agree to provide a clear headshot of your likeness for your profile; and you represent to Company that your License/Certificate or Registration will remain in force for so long as you make yourself available to provide Professional Services hereunder.
- Client Terms. The following terms apply to Users who are Clients:
You acknowledge and agree that Company does not and cannot guarantee that Professionals will be available to fulfill your Booking Requests.
The fee that Company will charge for a Booking Request will be listed on the page where Client submits its Booking Request. Company, at its sole discretion, may make promotional offers with different features and different rates to any Client. These promotional offers, unless made to you, shall have no bearing whatsoever on the amount you owe to Company.
If your Booking Request is for Professional Services on a recurring basis (i.e., weekly or monthly) (a “Recurring Mission”), Company will charge you at the end of each week period for Professional Services within such week period. If your Booking Request is for Professional Services at a single event (a “Single Mission”), Company will charge you upon completion of the Single Mission. Company will preauthorize and charge your credit card for the hours worked by the Professionals hired by you, and you hereby authorize Company to charge your credit card for such amounts.
Payments made to Company are non-refundable. This no refund policy shall apply at all times regardless of your decision to terminate your usage, our decision to terminate your usage, disruption caused to the Company Properties either planned, accidental, or intentional, or any other reason whatsoever. Company has no obligation to provide refunds or credits, but may grant them in extenuating circumstances in Company’s sole discretion, such as to correct any errors made by Company.
Client will be liable for all transaction taxes on the Professional Services provided by Professionals (other than taxes based on Company’s income).
- Professionals Terms. The following terms apply to Users who are Professionals:
Once a Client submits a Booking request, Company selects the Professionals who will receive notice of and be invited to provide the requested Professional Services. If you are selected by the Company to provide Professional Services for a Client who has requested such services, Company will notify you by email or text message of the Mission, providing you with the date, hours and location of the Mission (the “Company Notice”). You agree that you shall notify Company within 30 minutes of receipt of the Company Notice if you are unable to provide the requested Professional Services, and that your failure to respond to the Company Notice within such time period shall constitute your acceptance of the Mission. After you have indicated your availability to provide Professional Services for a Mission, Company will notify you whether the Client has engaged you to provide the Professional Services. You acknowledge and agree that Company does not and cannot guarantee that you will be selected to provide any Professional Services or that any Client will engage you to perform Professional Services for which you have indicated you are available.
You represent that you are duly licensed (as applicable) and have the experience, qualifications and ability to provide Professional Services. You further represent that you shall use your best efforts to perform the Professional Services for any Missions for which you are selected and which you have accepted, such that the results are satisfactory to the Clients who requested such Missions.
You hereby represent and affirm that you have not been convicted of a crime, which does not include the following: (i) minor traffic infractions; (ii) misdemeanor convictions more than two years ago for the possession, transportation or furnishing of marijuana, or for the possession of instruments or paraphernalia related to the use of marijuana or similar controlled substances, or presence where such substances were used; or (iii) convictions which have been expunged or sealed by the court.
For each Mission that you perform, Company will pay you the fees specified on your Dashboard page. The payment shall be made within 30 days after the month in which Company received Client’s payment for your Professional Services. Company has no obligation to pay you for any Professional Services for which Company does not receive payment from the relevant Client.
You acknowledge and agree to comply with the terms and conditions of the Company’s Professional Services Agreement. You acknowledge and agree that Company provides the Website and Application for the purposes of connecting Professionals with prospective Clients and that there is no (i) employment, (ii) part-time employment, (iii) consulting, (iv) contractor, or (v) joint-venture relationship whatsoever between Company and you.
Text messaging. By creating an Account, you agree that the Services may send you informational text (SMS) messages as part of the normal business operation of your use of the Services. You may opt-out of receiving text (SMS) messages from Uppster at any time by contacting us. You acknowledge that opting out of receiving text (SMS) messages may impact your use of the Services.
No Circumvention. The value of the Company rests in its thriving marketplace of Clients and Professionals. It is a violation of the Terms to (a) intentionally avoid the payment of fees by arranging Missions with Professionals outside of the context of the Company Properties, or (b) for a Talent to knowingly accept a Mission with the intention of delegating the performance of the Professional Services to another security Talent.
- Payment.Each User understands and agrees that:
The transmission of funds in the manner described herein is not a separate and discrete service that Company provides in addition to the Services. Company acts as agent of each User and not as a trustee or fiduciary with respect to payments received through Company.
Company will not voluntarily make your funds available to its creditors in the event of bankruptcy.
You agree that Company has sole discretion over the establishment and maintenance of any Pooled Account. You agree that you will not receive interest or other earnings on the funds that Company handles as your agent and places in a Pooled Account. In consideration for your use of Company Properties, you irrevocably transfer and assign to Company any ownership right that you may have in any interest that may accrue on funds held in a Pooled Account. This assignment applies only to interest earned on your funds, and nothing in this Agreement grants Company any ownership right to the principal of the funds you maintain with Company. In addition to or instead of earning interest on Pooled Accounts, Company may receive a reduction in fees or expenses charged for banking services by the banks that hold your funds.
You understand that use of the Services may result in charges to you for the services or goods you receive from a Third Party Provider (“Charges”). After you have received services or goods obtained through your use of the Service, Uppster will facilitate your payment of the applicable Charges on behalf of the Third Party Provider, as such Third Party Provider’s limited payment collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Third Party Provider. Charges will be inclusive of applicable taxes where required by law. Charges paid by you are final and non-refundable, unless otherwise determined by Uppster. You retain the right to request lower Charges from a Third Party Provider for services or goods received by you from such Third Party Provider at the time you receive such services or goods. Uppster will respond accordingly to any request from a Third Party Provider to modify the Charges for a particular service or good.
All Charges are due immediately and payment will be facilitated by Uppster using the preferred payment method designated in your Account, after which Uppster will send you a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Uppster may, as the Third Party Provider’s limited payment collection agent, use a secondary payment method in your Account, if available.
As between you and Uppster, Uppster reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time in Uppster’s sole discretion. Further, you acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times of high demand. Uppster will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. Uppster may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. You may elect to cancel your request for services or goods from a Third Party Provider at any time prior to such Third Party Provider’s arrival, in which case you may be charged a cancellation fee.
This payment structure is intended to fully compensate the Third Party Provider for the services or goods provided. Except with respect to taxicab transportation services requested through the Application, Uppster does not designate any portion of your payment as a tip or gratuity to the Third Party Provider. Any representation by Uppster (on Uppster’s website, in the Application, or in Uppster’s marketing materials) to the effect that tipping is “voluntary,” “not required,” and/or “included” in the payments you make for services or goods provided is not intended to suggest that Uppster provides any additional amounts, beyond those described above, to the Third Party Provider. You understand and agree that, while you are free to provide additional payment as a gratuity to any Third Party Provider who provides you with services or goods obtained through the Service, you are under no obligation to do so. Gratuities are voluntary. After you have received services or goods obtained through the Service, you will have the opportunity to rate your experience and leave additional feedback about your Third Party Provider.
- Release.Because Company is not involved in the actual contracts between Professionals and Clients or in the completion of a Mission, in the event that you have a dispute with one or more Users, you hereby release Company, its affiliates, and third party providers (and our officers, directors, agents, investors, and employees) from any and all claims, demands, or damages (actual or consequential) 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. Company reserves the right, but has no obligation, to intercede in any disputes between Users.
- Responsibility for Content.
Types of Content. You acknowledge that all information, data, text, images and/or other materials accessible through the Company Properties (“Content”) is the sole responsibility of the party from whom such Content originated. This means that you, and not Company, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Company Properties (“Your Content”), and other Users of Company Properties, and not Company, are similarly responsible for all Content they Make Available through Company Properties (“User Content”). You agree that you will not make available any Content that contains nudity, violence, sexually explicit, or offensive subject matter.
No Obligation to Pre-Screen Content. You acknowledge that Company has no obligation to pre-screen Content (including, but not limited to, Your Content and other User Content), although Company reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Company pre-screens, refuses or removes any Content, you acknowledge that Company will do so for Company’s benefit, not yours. Without limiting the foregoing, Company shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
- Ownership. Company Properties.Except with respect to Your Content and other User Content, you agree that Company and its suppliers own all rights, title and interest in Company Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying Company Properties.
Trademarks. Company’s stylized name and other related graphics, logos, service marks and trade names used on or in connection with Company Properties are the trademarks of Company and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Company Properties are the property of their respective owners.
Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in Company Properties.
Your Content. Company does not claim ownership of Your Content. However, when you as a User make available Your Content on or in Company Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
License to Your Content. Subject to any applicable account settings that you select, you grant Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing Company Properties to you and to our other Users. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Company, are responsible for all of Your Content that you Make Available on or in Company Properties.
Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Company.
Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Company (“Feedback”) is at your own risk and that Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Company Properties.
Reviews. The Services may in the future host Client reviews or ratings of Professionals, which are user generated content. Such reviews or ratings are Client opinions, are not the opinion of Company, and have not been verified by Company. You agree that Company is not liable for any reviews or ratings.
- No Solicitation.The Services may not be used to solicit for any other business, website or services. You may not solicit, advertise for, or contact in any form Users for employment, contracting, or any other purpose not related to the Services facilitated through Company Properties. You may not use the Services to collect usernames and/or email addresses of Users by electronic or other means without the express prior written consent of Company.
- Investigations.For Professionals who register to provide Professional Services with Uppster, Company will, at the time such User registers with Company, confirm that organization which provide certification/registration or permit or licence the Talent registration number provided by such User is valid and in force. Company does not conduct any other background checks or investigations of its Users.
Company may, but is not obligated to, monitor or review Company Properties and Content at any time. Without limiting the foregoing, Company shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law.
Although Company does not generally monitor User activity occurring in connection with Company Properties or Content, if Company becomes aware of any possible violations by you of any provision of the Terms, Company reserves the right to investigate such violations, and Company may, at its sole discretion, immediately terminate your right to use Company Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
- App Stores.You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from which you received the Application license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge that the Terms are between you and Company and not with the App Store. Company, not the App Store, is solely responsible for Company Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Company Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using Company Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
- Indemnification.You agree to indemnify and hold Company, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your Content; (b) your use of, or inability to use, Company Properties or Professional Services; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; (e) your violation of any applicable laws, rules or regulations; or (f) if you are a Talent, your performance of Professional Services. Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Company in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to Company Properties.
- Disclaimer of Warranties. As Is.YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF COMPANY PROPERTIES IS AT YOUR SOLE RISK, AND COMPANY PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) COMPANY PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF COMPANY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE QUALITY OF THE PROFESSIONAL SERVICES OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS.
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. COMPANY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
No Liability for Conduct of Other Users. YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE COMPANY PARTIES LIABLE, FOR THE CONDUCT OF OTHER USERS, AND THAT THE RISK OF ANY INJURY RESTS ENTIRELY WITH YOU. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF COMPANY PROPERTIES. YOU UNDERSTAND THAT COMPANY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF COMPANY PROPERTIES EXCEPT AS SET FORTH IN SECTION 12.1. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF COMPANY PROPERTIES, INCLUDING BUT NOT LIMITED TO THE PERFORMANCE OF PROFESSIONAL SERVICES BY PROFESSIONALS. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF COMPANY PROPERTIES.
- Limitation of Liability.
Disclaimer of Certain Damages. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” UPPSTER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, UPPSTER MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. UPPSTER DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY LOSS OF USE, DATA, OR PROFITS, OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH COMPANY PROPERTIES, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF COMPANY PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE COMPANY PROPERTIES OR PROFESSIONAL SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE PROFESSIONAL SERVICES IF YOU ARE UNABLE TO SECURE PROFESSIONAL SERVICES THROUGH THE COMPANY PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON COMPANY PROPERTIES; (5) THE PERFORMANCE OF PROFESSIONAL SERVICES BY PROFESSIONALS, OR OTHERWISE ARISING OUT OF OR RELATED TO MISSIONS; OR (6) ANY OTHER MATTER RELATED TO COMPANY PROPERTIES, PROFESSIONAL SERVICES, OR MISSIONS, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
Cap on Liability. UNDER NO CIRCUMSTANCES WILL COMPANY PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY COMPANY AS A RESULT OF YOUR USE OF COMPANY PROPERTIES DURING THE SIX MONTH PERIOD PRECEDING THE DATE ON WHICH YOUR CLAIM AGAINST COMPANY PARTIES AROSE. IF YOU HAVE NOT PAID COMPANY ANY AMOUNTS DURING SUCH PERIOD, COMPANY’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50).
UPPSTER SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, EVEN IF UPPSTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UPPSTER SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF UPPSTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UPPSTER SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND UPPSTER’S REASONABLE CONTROL. YOU ACKNOWLEDGE THAT THIRD PARTY TRANSPORTATION PROVIDERS PROVIDING TRANSPORTATION SERVICES REQUESTED THROUGH SOME REQUEST BRANDS MAY OFFER RIDESHARING OR PEER-TO-PEER TRANSPORTATION SERVICES AND MAY NOT BE PROFESSIONALLY LICENSED OR PERMITTED. IN NO EVENT SHALL UPPSTER’S TOTAL LIABILITY TO YOU IN CONNECTION WITH THE SERVICES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED FIFTY U.S. OR CANADIAN DOLLARS ($50).
Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
User Content. COMPANY PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT).
Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
- Termination and Suspension.Company may terminate or suspend your right to use Company Properties at any time for any or no reason by providing you with written or email notice of such termination, and termination will be effective immediately upon delivery of such notice. We may cancel unconfirmed Accounts or Accounts that have been inactive for a long time, or modify or discontinue our Services. Without limitation, Company may terminate or suspend your right to use Company Properties if you breach any provision of the Terms or any policy of Company posted through Company Properties from time to time; if Company otherwise finds that you have engaged in inappropriate and/or offensive behavior; if Company believes you are creating problems or possible legal liabilities; if Company believes such action will improve the security of our community or reduce another User’s exposure to financial liabilities; if Company believes you are infringing the rights of third parties; if Company believes you are acting inconsistently with the spirit of these Terms; if despite our reasonable endeavors, Company is unable to verify or authenticate any information you provide; or if you fail to pay all fees due for our Services by the payment due date. In addition to terminating or suspending your Account, Company reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress. Even after your right to use the Services is terminated or suspended, these Terms will remain enforceable against you.
Violations. If Company becomes aware of any possible violations by you of the Terms, Company reserves the right to investigate such violations. If, as a result of the investigation, Company believes that criminal activity has occurred, Company reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Company is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Company Properties, including Your Content, in Company’s possession in connection with your use of Company Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms; (3) respond to any claims by Users related to any Missions; (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Company, its Users or the public, and all enforcement or other government officials, as Company in its sole discretion believes to be necessary or appropriate.
Breach. In the event that Company determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for Company Properties, Company reserves the right to:
- Warn you via e-mail (to any e-mail address you have provided to Company) that you have violated the Terms;
- Delete any of Your Content provided by you or your agent(s) to Company Properties;
- Discontinue your registration(s) with any of Company Properties;
- Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
- Pursue any other action which Company deems to be appropriate.
No Subsequent Registration. If your registration(s) with or ability to access Company Properties, or any other Company community is discontinued by Company due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Company Properties or any Company community through use of a different user name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Company Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Company reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
- General Provisions.
Electronic Communications. The communications between you and Company use electronic means, whether you visit Company Properties or send Company e-mails, or whether Company posts notices on Company Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
Release. You hereby release Company Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Company Properties or any Missions or Professional Services arranged in accordance with these Terms, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms, your use of Company Properties, or any Missions or Professional Services arranged pursuant to these Terms. The Client knowingly agrees to waive his unilateral right of termination.
Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. You may not assign these Terms without Uppster’s prior written approval. Uppster may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Uppster’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, Uppster or any Third Party Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Uppster’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Uppster in writing.
Force Majeure. Company shall not be liable for any delay or failure to perform any Services resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. Company shall not be liable for any delay or failure by Professionals to perform Professional Services requested by Clients.
Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Company Properties, please contact us at: UPPSTER INTERACTIVE TECHNOLOGIES INC. dba Uppster, 4, Notre-Dame East, Suite 803, Montreal (Quebec) H2Y 1B8, Attn: Customer Service, calling (888) 601-1615, or emailing at firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
Limitations Period. YOU AND COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, COMPANY PROPERTIES, CONTENT, OR ANY MISSIONS OR PROFESSIONAL SERVICES, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Arbitration and governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the Province of Quebec, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The exclusive venue and jurisdiction for any and all disputes, claims, and controversies arising from or relating to these Terms shall be the state courts located in the district of Montreal, Quebec.
Arbitration dispute. You agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be settled by binding arbitration between you and Uppster, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Uppster are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and Uppster otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
The arbitration will be administered by Institut de médiation et d’arbitrage du Québec (IMAQ). The Institut will govern the interpretation and enforcement of this Section.
Arbitrator decision. The arbitrator will render an award within the time frame. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Uppster will not seek, and hereby waives all rights Uppster may have under applicable law to recover, attorneys’ fees and expenses if Uppster prevail in arbitration.
Notice. Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address. In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/permitted by the Terms, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notices to Company at the following address: UPPSTER INTERACTIVE TECHNOLOGIES INC., Uppster or Plongeur Montreal or Plongeur Express or Dishwasher Express, 4, Notre-Dame East, Suite 803, Montreal (Quebec) H2Y 1B8, Attn: Client Service. Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
Export Control. You may not use, export, import, or transfer Company Properties except as authorized by U.S. or Canadian law, the laws of the jurisdiction in which you obtained Company Properties, and any other applicable laws. In particular, but without limitation, Company Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Company Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. or Canadian Government list of prohibited or restricted parties. You also will not use Company Properties for any purpose prohibited by U.S.or Canadian law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Company are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. or Canadian government authorization, export, re-export, or transfer Company products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
Accessing and Download the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store: You acknowledge and agree that (i) the Terms are concluded between you and Company only, and not Apple, and (ii) Company, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Company and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Company.
You and Company acknowledge that, as between Company and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and Company acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Company and Apple, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
You and Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
Consumer Complaints. In accordance with our consumer complaints policy, you may report complaints to the at (888) 601-1615
Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
End of Terms