The Up! App Terms And Conditions Of Use
UP! (UP! LLC or “the Company”) is dedicated to helping equipment owners/operators in need of service find service providers to minimize equipment downtime. The following Terms and Conditions of Use outline important aspects of your use of the Service. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS OF USE, YOU MAY NOT USE THE SERVICE.
By accessing the UP! website and/or mobile applications, you agree to be bound by these Terms and Conditions of Use (the “Agreement”). If you wish to become a Subscriber and make use of the UP! website, application (the “App”), and Service (the “Service”), please read the Agreement.
ACCEPTANCE OF TERMS AND CONDITIONS OF USE
This Agreement is an electronic contract that establishes the legally binding terms you must accept to become a Subscriber, use the Website, App, and the Service.
By accessing the website, App or using the Service, you accept this Agreement and agree to the terms, conditions, and notices contained or referenced herein and consent to have this Agreement and all notices provided to you in electronic form. This Agreement may be modified by UP! at any time, effective upon posting by UP! in the App.
By using the Service, you consent to receive this Agreement in electronic form by using the Service. To withdraw this consent, you must cease using the Service and terminate your account.
To use the Service and App, you must be at least 18 years of age. As an Equipment Owner, you must have legal title and full capacity to authorize service upon a piece of equipment. As a Service Provider, you have a responsibility to accurately and honestly present your qualifications.
Agreement means this document and all of its content.
Subscriber means a person or entity that either provides repair services to industrial equipment or is the owner of such equipment, and who registers on the website or App for the Service.
App means the mobile applications UP! has developed to execute the Services.
Equipment Owner means a Subscriber who owns or has rights of use to subject industrial equipment.
Service Provider means and individual or entity in the business of providing maintenance services to specified industrial equipment.
Specified Industrial Equipment means those classes, models, makes of equipment in which the Service Provider indicates an ability to provide maintenance services.
Subscription Profile means the information collected in the UP! website or App to initiate the Services.
Engagement means a detailed description of the maintenance needed by the Equipment Owner, including but not limited to information about the equipment and other relevant circumstances.
Account Settings means that section of the App containing your Subscription profile.
Subscription means the completion of your Profile on the website or App detailing your equipment needing the Service or your capabilities as a Service Provider.
DESCRIPTION OF SERVICES
UP! provides a platform via its website and mobile applications found on handheld computing devices whereby Equipment Owners may submit requests for equipment maintenance through the Service. Service Providers may then review the information in the request and determine that it wishes to respond to the request. A responding Service Provider will indicate interest via the website or App. The response will contain relevant information from the Profile the Service Provider has submitted with its Subscription.
The Equipment Owner may contact one or more Service Providers and independently arrange the specific terms of the maintenance services. UP! is not responsible for any terms of the actual maintenance services that may follow from an Engagement.
SUBSCRIPTION AND PAYMENT
To become a Subscriber means you have completed the Profile, confirmed your acceptance of this Agreement, and arranged payment, if required, to receive the Service.
Your subscription will continue indefinitely until canceled or terminated if you cancel your subscription, you may use your subscription until the end of your then-current subscription term: your subscription will not be renewed after your then-current term expires.
TERM AND TERMINATION
This Agreement will remain in full force and effect while you use the Service and/or are a Subscriber.
You may change or cancel your subscription at any time online by following the instructions on the “Subscription” page on your “Accounts Settings” page. You may also cancel your membership by sending UP! written notice of cancellation to UP! LLC, 5412 Courseview Dr, Suite 200A, Mason, OH 45040 or by email notice of cancellation to Customer Care. If you cancel your membership via the App, we may ask you to provide a reason for your cancellation.
After your subscription is terminated for any reason, all terms of this Agreement survive such termination and continue in full force and effect, except for any terms that by their nature expire or are fully satisfied.
Subscribers may not use the App/Service in connection with any commercial endeavors (other than the intended purpose of the Service), such as (i) advertising or soliciting any user to buy or sell any products or services not offered by or promoted by UP! or (ii) soliciting others to attend events or networking for commercial purposes. Users of the Service may not use any information obtained from the Service to contact, advertise to, solicit or sell to any other user without prior explicit consent. The Company may investigate and take any available legal action in response to illegal and/or unauthorized uses of the Service, including a collection of usernames and/or email addresses by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of or linking the Service.
You are responsible for maintaining the confidentiality of the username and password you designate during the registration process, and you are solely responsible for all activities that occur under your username and password. You agree to immediately notify UP! of any disclosure or unauthorized use of your username or password or any other breach of security, and ensure that you log out from your account at the end of each session.
UP! owns and retains all proprietary rights in the Service and all content, trademarks, trade names, service marks, and other intellectual property rights related thereto. The website and App contain the copyrighted material, trademarks, and other proprietary information of UP! and its licensors. You agree not to copy, modify, transmit, create any derivative works from, make use of, or reproduce in any way any copyrighted material, trademarks, trade names, service marks, or other intellectual property or proprietary information accessible on the website, the App or through the Service, without first obtaining the prior written consent of UP!, if UP! does not own such property, then from the owner of such intellectual property or proprietary rights. You agree not to remove, obscure, or otherwise alter any proprietary notices appearing on any content, including copyright, trademark, and other intellectual property notices.
CONTENT POSTED BY YOU
You are solely responsible for the content and information that you post, upload, publish, link to, transmit, record display or otherwise make available (ratings) on the Service or transmit to other Subscribers, including emails, videos, photographs, voice notes, recordings or profile text, whether publicly posted or private transmitted. “Content” you may not post on the Service, or transmit to any other Subscriber, includes any offensive, inaccurate, abusive, obscene, profane, sexually-oriented, threatening, intimidating, harassing, racial offensive, illegal material or any material that infringes or violates another person’s or entities rights. You represent and warrant that all information that you submit upon registration is accurate and truthful and that you will promptly update any information provided by you that subsequently becomes inaccurate, misleading, or false.
You understand and agree that UP! may, but is not obligated to, monitor, or review any Content you post on the Service. UP! may delete any Content in whole or in part that in the sole judgment of UP! violates this Agreement or may harm the reputation of a Subscriber or UP! may restrict the number of emails which may be sent in our sole discretion.
By posting Content on the Service, you automatically grant to UP!, an irrevocable perpetual non-exclusive fully paid-up worldwide right and license to (i) use, copy, store, perform, display, reproduce, record, play, adapt, modify and distribute the Content (ii) prepare derivative works of Content or incorporate the Content into other works, (iii) grant and authorize sublicense of the foregoing in a media now known or hereafter created. You represent and warrant that any posting and use of your Content by UP! will not infringe or violate the rights of any third party.
In addition to the types of Content described in the sections above, the following is a partial, yet illustrative list of the kind of Content that is prohibited on the Service. You may not post, upload, display, or otherwise make available Content that:
That promotes racism, bigotry, hatred or physical harm of any kind against any group or individual
Advocates harassment or intimidation of another person
Requests money from or is intended to defraud other users of Service otherwise
Involve the transmission of junk mail, or any other unsolicited mass mailing
Promotes information that is false or misleading or promotes illegal activities or conduct that is defamatory, libelous or otherwise objectionable
Promotes an illegal or unauthorized copy of another person’s copyrighted work
Contains video and/or photographs or image of another person without permission
Contains restricted or password-only pages
Provide material that exploits people in any manner
Provide instruction information about illegal activities
Contains viruses, or any disruptive codes
Impersonate any persons or entity
Provides information or data you do not have a right to make available under law or contract
Disrupts the normal flow of the Service
Solicits passwords or personal information
Publicizes or promotes commercial activities and/or sales without our prior written consent
UP! reserves the right, in its sole discretion, to investigate and take appropriate legal action against anyone who violates this provision, including removing the offending communication from the Service and terminating or suspending the Subscription of such violators.
The Company reserves the right to investigate and/or terminate your membership if you have misused the Service or behave in a way the Company regards as inappropriate or unlawful, including actions or communications that occur off the Service but involve Subscribers you meet through the Service. The following is a partial list of the type of actions that you may not engage in with respect to the Service. You will not:
Impersonate any person or entity
Solicit money from any Subscriber
Post any content that is prohibited
Harass any persons
Express or imply that any statements you make are endorsed by UP! without our specific prior written consent
Use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the Service or its Content.
Collect usernames and/or email addresses of Subscribers by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the Service
Interfere with or disrupt the Service or the servers or networks connected to the Service email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt destroy or limit the functionality of any computer software or hardware or telecommunication equipment
Forge headers or otherwise manipulate identities to disguise the origin of any information transmitted to or through the Service (either directly or indirectly through use of third party software
“Frame” or “mirror” any part of the Service, without the UP!’s prior written authorization
Use meta tags or code or other device containing any reference to UP! or the Service (or any trademark, trade name, service mark, logo, or slogan of the company) to direct anyone to any other website for any purpose
Modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Service or any software used on or for the Service or cause others to do so
Post, use, transmit or distribute, directly or indirectly (e.g., screen scrape) in any manner or media any content or information obtained from the Service other than solely in connection with your use of the Service in accordance with Agreement
UP! provides assistance and guidance through its customer care representatives. When communicating with our customer care representative (whether over the phone, via email, letter, or any other means), you agree not to be abusive, obscene, profane, offensive, sexist, threatening, harassing, racially offensive or to not otherwise behave inappropriately. Phone calls between you and customer care representatives may be recorded for quality assurance purposes. If we feel that your behavior towards any of our customer care representatives or to other employees of UP! is at any time threatening or offensive, we reserve the right to immediately terminate your Subscription.
MODIFICATIONS TO SERVICE
The Company reserves the right at any time to modify or discontinue, temporarily or permanently, the Service with or without notice. You agree that UP! shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service. To protect the integrity of the Service, the company reserves the right at any time in its sole discretion to block users from certain IP addresses from accessing the Service.
You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights. Without limiting the foregoing, if you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information:
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest
A description of the copyrighted work that you claim has been infringed A description of where the material that you claim is infringing is located (and such description must be reasonably sufficient to enable UP! to find the alleged infringing material, such as a URL)
Your address, telephone number, and email address
A written statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf
Notice of claims of copyright infringement should be provided to the UP! Copyright Agent at copyright@ UP!.com or the following address: UP! LLC, 5412 Courseview Dr, Suite 200A, Mason, OH 45040, Attn: Copyright Agent.
The Service may contain, and the Service or third parties may provide, advertisement and promotions offered by third parties and links to other web sites or resources. You acknowledge and agree that UP! is not responsible for the availability of such external websites or resources and does not endorse and is not responsible or liable for any content, information, statements, advertising, goods or service, or other material on or available from such websites or resources. Your correspondence or business dealings with or participation in promotions of third parties found on or through the Service, inducing payment and delivery of related goods or services, and any other terms and conditions, warranties, or representations associated with such dealings are solely between you and such third party. You further acknowledge and agree that UP! shall not be responsible or liable directly or indirectly for any damage, of loss caused or alleged to be caused by or in connection with use of or reliance upon any such content, information, statements, advertising, goods or service or other materials available on or through any such website or resource.
LIMITATIONS OF LIABILITY
UP! 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, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT UP! HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL, INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
UP! SHALL NOT BE LIABLE FOR (i) ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF YOUR USE OR RELIANCE ON THE SERVICE OR YOUR INABILITY TO ACCESS OR USE THE SERVICE; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY OTHER USER OR ANY THIRD PARTY. UP! SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND UP!’S REASONABLE CONTROL. IN NO EVENT, SHALL UP!’S TOTAL LIABILITY TO YOU IN CONNECTION WITH THE SERVICE FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION EXCEED FIVE HUNDRED U.S. DOLLARS (US$500.00)
THE LIMITATIONS AND DISCLAIMER ABOVE DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof) and the Service shall be BINDING ARBITRATION administered by the American Arbitration Association. The one exception to the exclusivity of arbitration is that you have the right to bring an individual claim against the Company in a small claims court of competent jurisdiction.
But whether you choose arbitration or small-claims court, you may not under any circumstances commence or maintain against the Company any class action, class arbitration, or other representative action or proceeding.
By using the Service in any manner, you agree to the above arbitration agreement. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and UP! (except for matters that may be taken to small claims court). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY, and the arbitrator shall determine all issues regarding the arbitrability of the dispute. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for a very limited reason. For details on the arbitration process, see our Arbitration Procedures.
Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that this arbitration agreement is for any reason held to be unenforceable, any litigation against UP! (except for small claims court actions) may be commenced only in the federal or state courts located in Franklin County, Ohio. You hereby irrevocably consent to the jurisdiction of those courts for such purposes.
This Agreement, and any dispute between you and UP!, shall be governed by the laws of the State of Ohio without regard to principles of conflicts of law, provided that this arbitration agreement shall be governed by the Federal Arbitration Act.
THE SERVICE IS PROVIDED “AS IS” AND ‘AS AVAILABLE.” UP! EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PURPOSE, OR NON-INFRINGEMENT. UP! MAKES NO WARRANTY THAT THE SERVICE: (A) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS;(B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE; OR (D) RESULT IN ANY REVENUE, PROFITS OR COST REDUCTION.
THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATION. UP! IS NOT RESPONSIBLE FOR ANY DELAY, DELIVERY, FAILURE OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
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.
UP!’S SERVICES MAY BE USED BY YOU TO REQUEST EQUIPMENT MAINTENANCE SERVICE WITH OTHER USERS, BUT YOU AGREE THAT UP! HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO SUCH MAINTENANCE SERVICES OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT. YOU ASSUME ALL LIABILITY AND RISKS OF USING THE SERVICES AND COORDINATING AND/OR OFFERING MAINTENANCE SERVICES
You agree to indemnify and hold UP!, and its officers, agents, partners, and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party due to or arising out of your breach of or failure to comply with this Agreement (including any breach of your representations and warranties contained herein), any postings or Content you post on the website or App, or as a result of the Service, and the violation of any law or regulation by you. UP! reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by, in which event you will fully cooperate with the Company in connection therewith.