TERMS OF SERVICES – SPACE PARTNER
As of July 23, 2018
Welcome to Upflex!
These terms govern the use of the Upflex website, mobile applications, application program interfaces, and all associated services (“Services“). By using our Services, you are agreeing to these terms. Please read them carefully.
Sometimes additional terms will apply to your use of specific Services. These additional terms will be available with the relevant Services, and will become part of your agreement with us if you use those Services.
These terms require the use of arbitration to resolve disputes, rather than jury trials or class actions, and also limit the remedies available to you in the event of a dispute.
1. Our Services
- enable owners and/or operators of workspaces (“Hosts”) to list their workspaces (“Workspaces”) for use by Upflex “Users”, and to and manage such use via a Host dashboard; and
- enable employers and employees (“Users”) to access, book, and manage employee use of Host Workspaces via a User dashboard and Upflex App.
When Users make a booking, Hosts and Users are entering into a contract directly with each other. Upflex is not and does not become a party to any contractual relationship between the Users and Hosts, nor is Upflex a real estate broker or insurer. Upflex is not acting as an agent in any capacity for any User or Host.
- If you choose to BECOME OR AGREE TO BE A HOST (use the Services) your relationship with Upflex is limited to being an independent, third-party contractor, and not an employee, agent, joint venturer or partner of Upflex for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of Upflex. Upflex does not, and shall not be deemed to, direct or control you generally or in your performance under these terms specifically, including in connection with your provision of the services as a Host. You acknowledge and agree that you have complete discretion whether to receive bookings and list Workspaces or otherwise engage in other business activities.
While Upflex may help facilitate the resolution of disputes, Upflex has no control over and does not guarantee (a) the existence, quality, safety, suitability, or legality of any Workspace, (b) the accuracy of any Workspace listing, Ratings, Reviews, or other User/Host Content (as defined below), or (c) the performance or conduct of any User, Host, or third party. Upflex does not endorse any User, Host, or Workspace. You should always exercise due diligence and care when deciding whether to use a Workspace or communicate and interact with other Users or Hosts, whether online or in person.
Our Services may contain links to third-party websites or services (“Third-Party Services”). Such Third-Party Services are not under Upflex’s control, and we are not responsible for any Third-Party Services. Upflex provides access to these Third-Party Services only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services. You use all Third-Party Services at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the links to Third-Party Services, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Services.
Due to the nature of the Internet, Upflex cannot guarantee the continuous and uninterrupted availability and accessibility of the Services. Also, Upflex may restrict the availability of the Services or certain areas or features of the Services to ensure the security or integrity of our servers or to carry out maintenance measures that ensure the proper or improved functioning of the Services.
Upflex may improve, enhance and modify the Services and introduce new services from time to time.
2. Eligibility; Account Registration
You must be at least 18 years old and able to enter into legally binding contracts to access and use the Services or register an Upflex account. By accessing or using the Services you represent and warrant that you are 18 or older and have the legal capacity and authority to enter into a contract.
In order to use certain features of the Services, such as listing or viewing bookings of a Workspace, you must register for an account (“Upflex Account”) and provide certain information about Workspace as prompted by the account registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. If you are registering an Upflex Account for a company or other legal entity, you represent and warrant that you have the authority to legally bind that entity and grant Upflex all permissions and licenses provided in these Terms.
You may not register more than one Upflex Account unless Upflex authorizes you to do so. You may not assign or otherwise transfer your Upflex Account to another party.
You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Upflex of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Upflex cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
You may delete your Upflex Account at any time, for any reason, by following the instructions on our website or with our applications. Upflex may terminate or suspend your Account in accordance with Section 12.
3. Membership Packages, Fees, and Payment
User’s employer may purchase a membership package (“Membership Package”) through the Services, which entitles a User to a specified number of hours of Workspace usage (“Time Blocks”). Users may use such Time Blocks in one-hour increments at any Workspace, subject to availability and Workspace usage policy and these Terms. Usage of Time Blocks can be tracked and managed in the User dashboard.
Upflex has sole discretion to determining the Membership Packages available to Users, as listed within the Services. Upflex reserves the right to change the Membership Packages, as well as the fee charged to Users for such Membership Packages.
As a Host, you will be paid an hourly fee for the usage of your Workspace. The hourly fee will be based on the plan as displayed in your Host dashboard. Upflex reserves the right to change the hourly fee. As a Host, you can track the use of your Workspace on the Host dashboard that is updated daily with Users Workspace usage session.
Upflex will collect all payments from Users for use of Workspaces. As a Host, you may not ask a User to pay you directly for use of a Workspace, but you may charge a User for ancillary services (e.g. printing costs, catering, etc.).
Upflex will pay Host 30 days after months end for the use of their Workspaces. All payment will be remitted to Hosts using the Upflex payback platform (where Host can opt for wire transfer, ACH or Paypal.) Hosts will be responsible for any currency conversion costs and banking fees associated with their receiving bank.
4. Workspace Listings
When listing a Workspace through the Services you must (a) provide complete and accurate information about your Workspace (such as listing description, location, and availability), (b) disclose any requirements that apply and (c) provide any other pertinent information requested by Upflex. Any images used in your Workspace listings must accurately reflect the quality and condition of your Workspace. You are responsible for keeping your listing information (including availability) up-to-date at all times.
When a User books a Workspace, you are entering into a legally binding agreement with the User and are required to provide your Workspace(s) to the User as described in your Workspace listing when the booking request is made.
The placement and ranking of listings in search results on the Services may vary and depend on a variety of factors, such as location, User search parameters, and preferences, Host requirements, availability, Reviews and Ratings, customer service and cancellation history, type of Workspace, and/or ease of booking.
Upflex recommends that Hosts obtain appropriate insurance for their Workspace. Please review any respective insurance policy carefully, and in particular make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Users (and their guests, if applicable) while working at your Workspace.
You represent and warrant that any Workspace listings you post will (a) not breach any agreements you have entered into with any third parties, and (b) comply with all applicable laws, tax requirements, and other rules and regulations (including having all required permits, licenses, and registrations). As a Host, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who are present at the Workspace at your request or invitation, excluding the User and any individuals the User invites to the Workspace.
5. Booking Changes, Cancellations and Refunds
Hosts and Users are responsible for any changes to a booking that they make via the Services or direct Upflex customer service to make and agree to pay any additional fees and/or taxes associated with such changes.
Users can cancel a booking at any time. If a User cancels a booking 24 hours in advance, Upflex will refund any applicable fees. If a User cancels a booking less than 24 hours in advance, there will be no refund of applicable fees.
If a Host cancels a confirmed booking, the User will receive a full refund of applicable fees for such booking within a commercially reasonable time of the cancellation. In some instances, Upflex may allow the User to apply the refund to a new booking, in which case Upflex will credit the amount against the User’s subsequent booking at the User’s direction.
In certain circumstances, Upflex may decide, in its sole discretion, that it is necessary to cancel a confirmed booking and make appropriate refund decisions. This may be for reasons where Upflex believes in good faith while taking the legitimate interests of both parties into account, this is necessary to avoid significant harm to Upflex, other Users or Hosts, third parties or property, or for any of the reasons set out in these Terms.
If, as a Host, a User cancels a confirmed booking or Upflex decides that it is necessary to cancel a confirmed booking, and Upflex issues a refund to the User applicable cancellation policies, you agree that in the event you have already been paid, Upflex will be entitled to recover the amount of any such refund from you, including by subtracting such refund amount out from any future payments due to you.
6. Ratings and Reviews
Within a certain timeframe after completing a booking, Users can leave a public review (“Review”) and submit a rating (“Rating”) about each visit other. Ratings or Reviews reflect the opinions of individual Users and do not reflect the opinion of Upflex. Ratings and Reviews are not verified by Upflex for accuracy and may be incorrect or misleading.
Ratings and Reviews by Users must be accurate and may not contain any offensive or defamatory language. Ratings and Reviews are subject to Section 10.
Members are prohibited from manipulating the Ratings and Reviews system in any manner, such as instructing a third party to write a positive or negative Review about another User or Host.
7. Damage to Workspaces, Disputes between Users and Hosts
If you as a Host claim and provide evidence that a User has damaged a Workspace or any personal or other property at a Workspace (“Damage Claim“), you can seek payment from a User through Upflex.
Users and Hosts agree to cooperate with and assist Upflex in good faith, and to provide Upflex with such information and take such actions as may be reasonably requested by Upflex, in connection with any Damage Claims or other complaints or claims made by Members relating to Workspaces or any personal or other property located at a Workspace. A Member shall, upon Upflex’s reasonable request and at no cost to the Member, participate in mediation or a similar resolution process with another Member, which process will be conducted by Upflex or a third party selected by Upflex or its insurer, with respect to losses for which a Member is requesting payment from Upflex.
As a Host you are solely responsible for determining your obligations to report, collect, remit any indirect sales taxes or income taxes.
9. Content; Licenses
Upflex may, in its sole discretion, enable Users and Hosts to (a) create, upload, post, send, receive and store content, such as text, photos, audio, video, or other materials and information on or through the Services (“User/Host Content“); and (b) access and view User/Host Content and any content that Upflex itself makes available on or through the Services, including proprietary Upflex content and any content licensed or authorized for use by or through Upflex from a third party (“Upflex Content” and together with User/Host Content, “Collective Content“).
The Services, User/Host Content, and Upflex Content may in its entirety or in part be protected by copyright, trademark, and/or other laws of the United States and other countries. You acknowledge and agree that the Services and Upflex Content, including all associated intellectual property rights, are the exclusive property of Upflex and/or its licensors or authorizing third-parties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services, Upflex Content or User/Host Content. All trademarks, service marks, logos, trade names, and any other source identifiers of Upflex used on or in connection with the Services and Upflex Content are trademarks or registered trademarks of Upflex in the United States and abroad. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the Services, Upflex Content, and/or Collective Content are used for identification purposes only and may be the property of their respective owners.
You will not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Services or Collective Content, except to the extent you are the legal owner of certain User/Host Content or as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Upflex or its licensors, except for the licenses and rights expressly granted in these Terms.
Subject to your compliance with these Terms, Upflex grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to (a) download and use the Upflex mobile application on your mobile device(s); and (b) access and view any Collective Content made available on or through the Services and accessible to you, solely for your personal and non-commercial use.
By creating, uploading, posting, sending, receiving, storing, or otherwise making available any User/Host Content on or through the Services, you grant to Upflex a non-exclusive, worldwide, royalty-free, irrevocable, perpetual (or for the term of the protection), sub-licensable and transferable license to such User/Host Content to access, use, store, copy, modify, prepare derivative works of, distribute, publish, transmit, broadcast, and otherwise exploit in any manner such User/Host Content to provide and/or promote the Services, in any media or platform. Unless you provide specific consent, Upflex does not claim any ownership rights in any User/Host Content and nothing in these Terms will be deemed to restrict any rights that you may have to use or exploit your User/Host Content.
You are solely responsible for all User/Host Content that you make available on or through the Services. Accordingly, you represent and warrant that: (a) you either are the sole and exclusive owner of all User/Host Content that you make available on or through the Services or you have all rights, licenses, consents and releases that are necessary to grant to Upflex the rights in and to such User/Host Content, as contemplated under these Terms; and (b) neither the User/Host Content nor your posting, uploading, publication, submission or transmittal of the User/Host Content or Upflex’s use of the User/Host Content (or any portion thereof) will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Upflex may, without prior notice, remove or disable access to any User/Host Content that Upflex finds to be in violation of these Terms or Upflex’s then-current policies, or otherwise may be harmful or objectionable to Upflex, its Members, third parties, or property.
10. Prohibited Activities
You are solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to your use of the Services. In connection with your use of the Services, you will not and will not assist or enable others to:
- breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or our Terms.
- use the Services or Collective Content for any commercial or other purposes that are not expressly permitted by these Terms or in a manner that falsely implies Upflex endorsement, partnership or otherwise misleads others as to your affiliation with Upflex;
- use the Services in connection with the distribution of unsolicited commercial messages (“spam”);
- the offer, as a Host, any Workspace that you do not yourself own or have permission to make available through the Services;
- discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any violent, harmful, abusive or disruptive behavior;
- post, upload, publish, submit or transmit any User/Host Content that: (a) is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive; (b) is defamatory, libelous, obscene, pornographic, vulgar or offensive; (c) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (d) is violent or threatening or promotes violence or actions that are threatening to any other person or animal; (e) promotes illegal or harmful activities or substances; or (f) violates any other Upflex policy.
- use, display, mirror or frame the Services or Collective Content, or any individual element within the Services, Upflex’s name, any Upflex trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Services, without Upflex’s express written consent;
- dilute, tarnish or otherwise harm the Upflex brand in any way, including through unauthorized use of Upflex Content, registering and/or using Upflex or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to Upflex domains, trademarks, copyrights, or Upflex Content;
- use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with the Services for any purpose;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by Upflex or any of Upflex’s providers or any other third party to protect the Services;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
- take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the Services;
- export, re-export, import, or transfer the Services except as authorized by United States law, the export control laws of your jurisdiction, and any other applicable laws; or
- violate or infringe anyone else’s rights or otherwise cause harm to anyone.
You acknowledge that Upflex has no obligation to monitor the access to or use of the Services by any User or Host or to review, disable access to, or edit any User/Host Content, but has the right to do so to (a) operate, secure and improve the Services (including for fraud prevention, risk assessment, investigation and customer support purposes); (b) ensure Members’ compliance with these Terms; (c) comply with applicable law or the order or requirement of a court, law enforcement or other administrative agency or governmental body; (d) respond to User/Host Content that it determines is harmful or objectionable; or (e) as otherwise set forth in these Terms. Members agree to cooperate with and assist Upflex in good faith and to provide Upflex with such information and take such actions as may be reasonably requested by Upflex with respect to any investigation undertaken by Upflex or a representative of Upflex regarding the use or abuse of the Services.
If you feel that any User or Host you interact with, whether online or in person, is acting or has acted inappropriately, including but not limited to anyone who (a) engages in offensive, violent or sexually inappropriate behavior, (b) you suspect of stealing from you or (c) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to Upflex. You agree that any report you make will not obligate us to take any action (beyond that required by law, if any).
- Copyright Policy
Upflex respects the intellectual property of others and asks that those that use our Services do the same. In connection with our Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of the accounts of those that use our Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
- your physical or electronic signature;
- identification of the copyrighted work(s) that you claim to have been infringed;
- identification of the material on our services that you claim is infringing and that you request us to remove;
- sufficient information to permit us to locate such material;
- your address, telephone number, and e-mail address;
- a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
Our designated copyright agent is as follows:
Attn: Copyright Agent
New York, NY 10003, USA
12. Termination and Suspension
These Terms will remain in full force and effect while you use the Services. We may suspend or terminate this agreement and your rights to use the Services at any time for any reason at our sole discretion, including for any use of the Services in violation of these Terms. You may also terminate this agreement at any time deleting your account or by sending us an email. Upon termination of this agreement, your right to access and use the Services will terminate immediately.
If you delete your Upflex account as a Host, any confirmed booking(s) will be automatically canceled and your Users will receive a full refund for any pending bookings.
When this agreement has been terminated, you are not entitled to a restoration of your Upflex account or any of your User/Host Content.
If you or we terminate this agreement, the clauses of these Terms that reasonably should survive termination of the agreement will remain in effect.
In addition, Upflex may take any of the following measures (a) to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body, or if (b) you have breached these Terms, applicable laws, regulations, or third-party rights, (c) you have provided Upflex with inaccurate, fraudulent, outdated or incomplete information, (d) you and/or your Workspaces at any time fail to meet any applicable quality or eligibility criteria, (e) you have repeatedly received poor Ratings or Reviews or Upflex otherwise becomes aware of or has received complaints about your performance or conduct, (f) you have repeatedly canceled confirmed bookings or failed to respond to booking requests without a valid reason, or (g) Upflex believes in good faith that such action is reasonably necessary to protect the personal safety or property of Upflex, its Users, its Hosts, or third parties, or to prevent fraud or other illegal activity:
- obscure, delete, or delay any Workspace listings, Ratings, Reviews, or other User/Host Content;
- cancel any pending or confirmed bookings;
- limit your access to or use of the Services;
- temporarily or in case of severe or repeated offenses permanently suspend your Upflex Account and stop providing access to the Services.
If we take any of the measures described above (a) we may refund your Users in full for any and all confirmed bookings that have been canceled, irrespective of preexisting cancellation policies, and (b) you will not be entitled to any compensation for pending or confirmed bookings that were canceled.
If your access to or use of the Services has been limited or your Upflex Account has been suspended or this agreement has been terminated by us, you may not register a new Upflex account or access and use the Services through an Upflex account of another User or Host.
If you choose to use the Services or User/Host Content, you do so voluntarily and at your sole risk. The Services and User/Host Content are provided on an “as is” and “as available basis”, and Upflex expressly disclaims any and all warranties and conditions of any kind, whether express, implied, or statutory, including all warranties or conditions of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement. We make no warranty that the Services will meet your requirements, will be available on an uninterrupted, timely, secure, or error-free basis, or will be accurate, reliable, free of viruses or other harmful code, complete, legal, or safe. If applicable law requires any warranties with respect to the site, all such warranties are limited in duration to 90 days from the date of first use.
Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. Some jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you.
14. Limitation on Liability
To the maximum extent permitted by law, the entire risk arising out of your use of the Services and User/Host Content, your listing a Workspace via the Services, your booking of any Workspace via the Services, your use of any Workspace, or any other interaction you have with other Users or Hosts whether in person or online, remains with you.
To the maximum extent permitted by law, neither Upflex nor any other party involved in creating, producing, or delivering the Services or Collective Content will be liable to you or any third party for any lost profits, lost data, loss of goodwill, costs of procurement of substitute products or services, any indirect, consequential, exemplary, incidental, special or punitive damages, or for any damages for personal or bodily injury or emotional distress arising from or relating to (a) these Terms, (b) from the use of or inability to use the Services or Collective Content, (c) from any communications, interactions or meetings with other Users, Hosts or other persons with whom you communicate, interact or meet with as a result of your use of the Services, (d) from your listing of a Workspace, (e) or from your booking of a Workspace, including the provision or use of a Workspace, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Upflex has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.
Except for our obligations to pay amounts to applicable Hosts under these Terms, in no event will Upflex’s aggregate liability arising out of or in connection with these Terms and your use of the Services exceed US$100.
The limitations of damages set forth above are fundamental elements of the basis of the bargain between Upflex and you.
Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
You agree to release, indemnify, and hold Upflex (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your improper use of the Services, (b) your violation of these Terms, (c) your violation of applicable laws or regulations, (d) your User/Host Content, (e) your interaction with any User or Host, (f) your use of a Workspace. Upflex reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
16. Dispute Resolution and Arbitration Agreement.
Please read this Arbitration Agreement carefully. It is part of your agreement with Upflex and affects your rights. It contains procedures for mandatory binding arbitration and a class action waiver.
- Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the Services that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Upflex, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Services.
- Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Upflex should be sent to: Upflex, Inc. 833 Broadway, New York, NY 10003, USA. After the Notice is received, you and Upflex may attempt to resolve the claim or dispute informally. If you and Upflex do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
- Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than US $10,000.00 may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is US $10,000.00 or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing may be held, at your option, in a location within 100 miles of your residence (unless you reside outside of the United States), in New York, NY, via phone or video conference, or in any other place that you and Upflex agree. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that Upflex made to you prior to the initiation of arbitration, Upflex will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
- Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
- Time Limits. If you or Upflex pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
- Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Upflex, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Upflex.
- Waiver of Jury Trial. The parties hereby waive their constitutional and statutory rights to go to court and have a trial in front of a judge or a jury, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Upflex in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, you and Upflex waive all rights to a jury trial, instead electing that the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. All claims and disputes within the scope of this arbitration agreement must be arbitrated or litigated on an individual basis and not on a class basis, and claims of more than one customer or a user cannot be arbitrated or litigated jointly or consolidated with those of any other customer or user.
- Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of this Arbitration Agreement shall continue in full force and effect.
- Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Upflex.
- Small Claims Court. Notwithstanding the foregoing, either you or Upflex may bring an individual action in small claims court.
- Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
- Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
- Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Manhattan County, New York, for such purpose.
17. Applicable Law and Jurisdiction
These Terms will be interpreted in accordance with the laws of the State of Delaware and the United States of America, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims actions) that are excluded from the Arbitration Agreement in Section 16 must be brought in state or federal court in Manhattan County, New York unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in Manhattan County, New York.
We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Services (“Feedback“). If you provide Upflex with any Feedback, you hereby assign to Company all rights in such Feedback and agree that Upflex will have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Upflex will treat any Feedback you provide to us as non-confidential and non-proprietary. You agree that you will not submit to Upflex any information or ideas that you consider to be confidential or proprietary.
19. Changes to these Terms
Upflex may change these Terms from time to time. Changes will be effective when Upflex posts updated Terms at this location or within the applicable Services. Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as changed. If Uber changes these Terms after the date you first agreed to the Terms (or to any subsequent changes to these Terms), you may reject any such change by providing Upflex written notice of such rejection within 30 days of the date such change became effective, as indicated in the “Effective” date above. This written notice must be provided either (a) by mail to 833 Broadway, New York, NY 10003, USA, or (b) by email from the email address associated with your account to: [email protected] In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to these Terms. By rejecting changes, you are agreeing that you will continue to be bound by the provisions of these Terms as of the date you first agreed to the Terms (or to any subsequent changes to these Terms).
20. General Provisions
Except as they may be supplemented by additional terms, these Terms constitute the entire understanding between the parties with respect to the subject matter of this agreement and supersedes all other agreements, whether written or oral, between the parties.
These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.
If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision.
You may not assign, transfer or delegate this agreement and your rights and obligations hereunder without Upflex’s prior written consent. Upflex may without restriction assign, transfer or delegate this agreement and any rights and obligations hereunder, at its sole discretion. Your right to terminate this agreement at any time remains unaffected.
Unless specified otherwise, any notices or other communications to Members permitted or required under this agreement, will be provided electronically and given by Upflex via email, Services notification, or messaging service (including SMS). The date of receipt will be deemed the date on which Upflex transmits the notice.
21. Contact Us
We welcome your comments, questions, concerns, or suggestions. Please contact us using the information below:
New York, NY 10003, USA