TERMS AND CONDITIONS OF USE AGREEMENT
Last Updated on: August 1, 2023
Read this Terms and Conditions of Use Agreement (“Agreement”) before using www.theupapp.com (the “Site”), UP! Industrial Machine Repair (the “App”), or any services offered on the App or Site (the “Service(s)”), making any purchases, or responding to any survey, question, and/or other inquiry from UP! LLC (“UP!” or “we/us”) on or through the App or Site. By using any part of the Site/ App, making a purchase on or through the Site/App, subscribing to or using any Services accessed through the Site, or responding to any survey, question, and/or other inquiry from UP! you (“you” or “User”) agree to the terms and conditions contained in this Agreement. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, YOU SHOULD NOT USE THE SITE/APP, ANY USAGE OF THE SITE/APP, SERVICES, CONSTITUTES YOUR ACCEPTANCE TO THIS AGREEMENT.
DESCRIPTION OF SERVICES
UP! provides a platform via its Site/App whereby a User who owns or has rights of use to an industrial piece of equipment, may submit requests for equipment maintenance (hereinafter “Engagements”). Service Providers (individuals or entities in the business of providing maintenance services to specified industrial equipment) may 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 Site/App. The response will contain relevant information regarding their expertise, and competency to fulfill the Engagement.
The User may contact one or more Service Providers and independently arrange the specific terms of the maintenance services. UP! is not responsible for any terms, contracts, proposals, agreements etc., that are in relation to the actual maintenance services that result from an Engagement.
Users may not use the App/Site in connection with any commercial endeavors 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, solicit or sell to any other User without prior explicit consent. UP! may investigate and take any available legal action in response to illegal and/or unauthorized uses of the Service, Site or App, including but not limited termination of your User account.
You are responsible for maintaining the confidentiality of the username and password you designate when subscribing to the Service process, and you are solely responsible for all activities that occur under your account. 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! reserves the right to terminate any User account or Subscription, without refund, in the event UP! in its sole discretion determines an account security has been breached at the fault of the User.
UP! owns and retains all proprietary rights in the App and Site and all content, trademarks, trade names, service marks, and other intellectual property rights related thereto. The Site 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 Site, 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. Failure to comply with this section may subject you to legal action, in addition to the termination of your User account and/or Subscription without refund.
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 or testimonials) on the App or Site or transmit to other Users, including emails, videos, photographs, voice notes, recordings or profile text, whether publicly posted or privately transmitted (collectively “User Content”).
By placing or downloading material on the Site, including intellectual property, documents, text, images, audio files or other audio-visual content to the Site (“User Content”), you represent and warrant: (a) You own or otherwise have all necessary rights to the User Content you provide and the rights to provide it under this Agreement; and (b) the User Content will not cause injury to any person or entity. Without limitation, you may not submit to or transmit through this Site any material, or otherwise engage in any conduct that:
- Violates or infringes the rights of UP! or others including, without limitation, patent, trademark, trade secret, copyright, publicity, privacy, proprietary and/or intellectual property rights;
- Is inaccurate, unlawful, discriminatory, threatening, abusive, harmful, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, pornographic, obscene, offensive, or otherwise objectionable to UP! or other uses of the Site;
- Victimizes, harasses, degrades, intimidates, discriminates against, or retaliates against an individual or group of individuals on the basis of religion, sex, race, national origin, age, physical or mental disability, sexual orientation, or other characteristics protected by applicable state or federal law;
- Collects, stores, and/or discloses personal data about other others unless specifically authorized by such others;
- Impersonates any person, business or entity, including UP!, and UP!’s employees and agents;
- Misrepresents your affiliation with a person or entity;
- Contains viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise permit the unauthorized use of a computer or computer network;
- Attempts to gain unauthorized access to any services, user accounts, computer systems or networks, through hacking, password mining, or any other means;
- Transmits spam, bulk or unsolicited communications or posts third-party advertisements;
- That would violate any fiduciary relationship, any applicable local, state, national or international law, or any regulations or other government requirements or rules having the force of law, including but not limited to attempting to compromise the security of any networked account or site, operating an illegal lottery or gambling operation, stalking, or making threats of harm, or that otherwise could constitute a criminal offense or give rise to civil liability;
- Violates this Agreement, guidelines, or any policy UP! posts on the Site or App; or
By posting User Content on the Site or App, 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 User Content (ii) prepare derivative works of the User Content or incorporate the User 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 User Content by UP! will not infringe or violate the rights of any third party.
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 Site and terminating or suspending the Subscription of such violators, without refund.
UP! Provides assistance and guidance for Subscribers through its customer care representatives. Phone calls between you and customer care representatives may be recorded for quality assurance purposes. UP! customer care representatives do not assist with any Service issues to the extent they relate to any User and Service Provider conflicts resulting from the Engagement, i.e., payment, faulty service or other issues that may arise from the User’s engagement of the Service Provider.
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 Site or App may contain, and the Service or third parties may provide, advertisement and promotions offered by third parties and links to other websites 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.
NEITHER YOU NOR WE WILL PARTICIPATE IN A CLASS ACTION OR CLASS-WIDE ARBITRATION FOR ANY CLAIMS COVERED BY THIS AGREEMENT. BY USING THE SITE OR APP, YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER IN ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. YOU ALSO AGREE NOT TO PARTICIPATE IN CLAIMS BROUGHT IN A PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE CAPACITY, OR CONSOLIDATED CLAIMS INVOLVING ANOTHER PERSON’S ACCOUNT, IF WE ARE A PARTY TO THE PROCEEDING
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, SITE OR APP 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 harmless UP!, and its officers, agents, partners, and employees 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 User Content you post on the Site 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, at your cost, and control of any matter otherwise subject to indemnification by, in which event you will fully cooperate with the UP! in connection therewith.