Upside Services, Inc. (“Upside,” “we,” “us,” “our”) provides its services (described below) to you through its website located at www.upside.com (the “Site”) and through its mobile applications and related services (collectively, such services, including any new features and applications, and the Site, the “Services”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Services user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Services after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST UPSIDE ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
Services Description: The Services are designed to allow you to earn Cash Back rewards on purchases you make at gas stations, grocery stores, restaurants and other participating establishments. The Services are completely free for you to use; the Cash Back rewards are offered in exchange for your loyalty to our participating merchants, subject to the terms below.
Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. Your account belongs to you only, and you may not share your account with any other individual(s). You agree to immediately notify Upside of any unauthorized use of your password or account or any other breach of security. Each individual is permitted to create one account. Because our Services generate rewards offers that are personalized, as well as bonuses to incentivize referrals, creating multiple accounts is prohibited and considered fraudulent activity. Upside will not be liable for any loss or damage arising from your failure to comply with this Section.
Modifications to Services: Upside reserves the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that Upside will not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
General Practices Regarding Use and Storage: You acknowledge that Upside may establish general practices and limits concerning use of the Services, including without limitation the maximum period of time that data or other content will be retained by the Services and the maximum storage space that will be allotted on Upside’s servers on your behalf. You agree that Upside has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Services. You acknowledge that Upside reserves the right to terminate your account if you do not comply with these Terms of Service or other limits we may set from time to time regarding the use of the Services. Termination of your account, by you or by us, will result in forfeiture or cancellation of any accumulated Cash Back rewards in your account, subject to applicable law. You further acknowledge that Upside reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Mobile Services: The Services include certain services that are available via a mobile device, including (i) the ability to upload content to the Services via a mobile device, (ii) the ability to browse the Services and the Site from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Services through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Upside and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. If you revoke your consent to communicate by these means, we may terminate your account. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Upside account information to ensure that your messages are not sent to the person that acquires your old number.
General: As part of the Services, Upside lets you accumulate Cash Back rewards by buying certain products with an associated Cash Back value (an “Upside Offer”). We have created mobile applications and websites that let our members “check in” at retail establishments and/or upload or email photos of their receipts so we can validate their purchase of products and services associated with an Upside Offer and begin to accumulate Cash Back rewards. We may also validate our members’ purchase of products associated with an Upside Offer through retailer or other partner-provided transaction log data, receipt data using a unique identifier (such as a loyalty card number, credit card number, phone number, etc.) to match an Upside member to a transaction, or the user’s location as determined by the phone. If we are not able to validate your purchase, or if you return, modify, or cancel the purchase, we have no obligation to issue Cash Back rewards for that purchase, and we may revoke any Cash Back rewards that was previously issued to your account for that purchase. Certain items may be ineligible for Cash Back rewards, where prohibited by law or as otherwise determined by Upside, such as tobacco, alcohol, prescription medication, lottery tickets, and service tips. Gasoline sign prices displayed in the Services are not always current or accurate, due to limitations in data reporting. Except through the Referral Program (discussed below), you are only permitted to earn Cash Back rewards on purchases and transactions that you personally have made. Cash Back rewards are for your benefit and yours alone. You may not share them with anyone else. If we discover that you have (1) violated the foregoing, (2) provided us with receipts or purchase confirmations for purchases and transactions made by someone other than you, or (3) provided us with fraudulent or erroneous receipts or purchase confirmations, we may deactivate your account in our sole discretion and/or deduct any fraudulently earned Cash Back rewards from your account. Upside offers are issued solely for loyalty and promotional purposes, and cannot be purchased in exchange for cash.
Referral and Affiliate Programs: Upside offers you the opportunity to earn additional Cash Back rewards through its Referral Program, by recruiting friends and personal acquaintances to join Upside. You can earn a referral bonus when a new user creates an Upside account using your personal referral code and subsequently claims an Upside Offer that we are able to validate. The Referral Program is only intended for referrals to friends and personal acquaintances. You are prohibited from (i) sharing your personal referral code on a website or blog, except as specified herein; (ii) purchasing advertisements featuring or promoting your personal referral code; (iii) posting your personal referral code at gas stations, restaurants, grocery stores, or other participating establishments; and (iv) otherwise disseminating or publishing your personal referral code for widespread public use. You may share your personal referral code through your own personal account(s) on social media, provided that you have fewer than 2500 followers.
Users who want to promote Upside beyond their friends and personal acquaintances are invited to apply to join Upside’s Affiliate Program. You are not permitted to participate in both the Referral Program and Affiliate Program and/or claim referral bonuses through both Programs. Upside reserves the right in its sole discretion to change the terms of its Referral and Affiliate Programs at any time, including the amount and frequency of referral bonuses.
Redeeming Cash Back Rewards: You are eligible to redeem Cash Back rewards for an equivalent amount of cash or cash value so long as your Upside account is in good standing, subject to these terms. Upside reserves the right at any time in its sole discretion to establish a minimum distribution amount up to a maximum of $20 (“Minimum Distribution Amount”). Below the Minimum Distribution Amount, Upside may prohibit redemptions of Cash Back rewards. Upside may also deduct a fee of up to $1 from your balance for using certain payment methods to redeem Cash Back rewards. If applicable, the Minimum Distribution Amount and/or redemption fee will be indicated in the Cash Out feature of the mobile application. You may also accumulate Cash Back rewards in an amount greater than the Minimum Distribution Amount which will be held in your Cash Back rewards balance until you redeem them or they expire.
If you are eligible and make a request to redeem your Cash Back rewards (“Distribution Request”), you may elect to receive your Cash Back rewards using any payment method we support, from time to time, in accordance with the payment terms described below. If you do not make a Distribution Request, we are under no obligation to send you a Cash Back rewards distribution. You are responsible for successfully completing a Distribution Request in order to redeem Cash Back rewards for cash. There is no automatic redemption or periodic distribution of Cash Back rewards. Cash Back rewards balances are loyalty and promotional credits which have no cash, monetary or other value until they are successfully redeemed pursuant to a valid Distribution Request made in accordance with these terms. No interest is paid on Cash Back rewards balances. Cash Back rewards balances are not FDIC-insured. You are responsible for maintaining the security of your Upside account and Cash Back rewards balance. All redemptions of Cash Back rewards are final and cannot be reversed or refunded. Members have no property rights or other legal interest in the Cash Back rewards for any purpose. Prior to our fulfillment of a Distribution Request, we may, for our own account, pledge, repledge, hypothecate, rehypothecate, lend or otherwise transfer or use any amount or all of an amount of cash equivalent to your Cash Back rewards balance, separately or together with other property, with all attendant rights of ownership from time to time, without notice to you and without retaining a like amount of cash in our possession or control for delivery. Your Cash Back rewards balance or any part of it is not transferable by you, and you cannot divide it as part of a settlement, legal proceeding or death, nor can you combine it with Cash Back rewards of any other user of the Services.
Violation of Terms: If we determine in our sole discretion that you have violated the Terms of Service, we may in our sole discretion and as permitted by law terminate your account and forfeit or cancel any pending, current, or future Cash Back rewards balance you may have. We will notify you of such termination at the email address associated with your account, and such termination shall be effective immediately.
Responsibility for Taxes: You agree that you are solely responsible for all applicable federal, state, or provincial withholding, taxes, and government fees or costs associated with Cash Back rewards and any redemptions and distributions. We may ask you for a valid tax identification number and other identifying information for reporting purposes and withhold Cash Back rewards distributions if you decline to cooperate. Tax forms, such as an IRS Form 1099, may be issued in your name for the actual value of payments that we distribute to you.
Expiration of Cash Back Rewards: Cash Back rewards will expire if your Upside account is inactive for six consecutive months. Your account will be considered inactive for any period of time during which no Cash Back rewards are earned from purchases you make or redeemed.
User Conduct: You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise use via the Services or the internet. The following are examples of the kind of content and/or use that is illegal or prohibited by Upside. Upside reserves the right to investigate and take appropriate legal action against anyone who, in Upside’s sole discretion, violates this provision, including without limitation, removing the offending content from the Services, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree not to:
Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Services and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Services, including as it concerns online conduct and acceptable content.
Commercial Use: The Services are for your personal use. Unless otherwise expressly authorized herein or in the Services, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Services, use of the Services, or access to the Services.
Upside offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
Upside and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
Services Content, Software and Trademarks: You acknowledge and agree that the Services may contain content or features (“Services Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Upside, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Services or the Services Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Services. In connection with your use of the Services you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Upside from accessing the Services (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Services or the Services Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Services or distributed in connection therewith are the property of Upside, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Upside.
The Upside name and logos are trademarks and service marks of Upside (collectively the “Upside Trademarks”). Other Upside product and service names and logos used and displayed via the Services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Upside. Nothing in this Terms of Service or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the Upside Trademarks displayed on the Services, without our prior written permission in each instance. All goodwill generated from the use of Upside Trademarks will inure to our exclusive benefit.
Third Party Material: Under no circumstances will Upside be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Upside does not pre-screen content, but that Upside and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Services. Without limiting the foregoing, Upside and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Upside, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User Content Transmitted Through the Services: With respect to the content or other materials you upload through the Services or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content you hereby grant and will grant Upside and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Services in any form, medium or technology now known or later developed.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Services (“Submissions”), provided by you to Upside are non-confidential and Upside will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that Upside may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Upside, its users and the public. You understand that the technical processing and transmission of the Services, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
The Services may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Upside has no control over such sites and resources and Upside is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Upside will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Services are between you and the third party, and you agree that Upside is not liable for any loss or claim that you may have against any such third party.
In addition, Upside is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, Upside is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. Upside enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
By texting to an Upside short code or by submitting your phone number in a web form, you consent to receive one or more automated texts at the phone number from which you texted or at the phone number you entered in the form, in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
Upside is not liable for delayed or undelivered messages.
United States Participating Carriers Include AT&T, T-Mobile®, Verizon Wireless, Sprint, Boost, U.S. Cellular®, MetroPCS®, InterOp, Cellcom, C Spire Wireless, Cricket, Virgin Mobile and others.
You agree to release, indemnify and hold Upside and its affiliates and their officers, employees, directors and agents (collectively, “Indemnitees”) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Services, any User Content, your connection to the Services, your violation of these Terms of Service or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. UPSIDE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
UPSIDE MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT UPSIDE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF UPSIDE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (V) ANY OTHER MATTER RELATING TO THE SERVICES. IN NO EVENT WILL UPSIDE’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID UPSIDE IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Dispute Resolution: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS. TO OPT OUT OF THIS ARBITRATION AND CLASS ACTION WAIVER AGREEMENT, YOU MUST WRITE US AT:
Upside Services, Inc.
1701 Rhode Island Avenue NW
Washington, DC 20036
Att’n: Legal Department
TO BE EFFECTIVE, WE MUST RECEIVE YOUR WRITTEN NOTICE WITHIN THIRTY (30) DAYS OF THE FIRST DATE YOU REGISTER FOR THE SERVICES.
IF YOU OPT OUT, ANY DISPUTES WILL STILL BE GOVERNED BY THE LAWS OF THE STATE WHERE YOU RESIDE AND APPLICABLE FEDERAL LAW AND MUST BE BROUGHT WITHIN SUCH STATE’S COURT SYSTEM.
This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Upside, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. YOU AGREE THAT, BY ENTERING INTO THIS TERMS OF SERVICE, YOU AND UPSIDE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
YOU AND UPSIDE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND UPSIDE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
Upside is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support email@example.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Upside should be sent to Upside Services, Inc., 1701 Rhode Island Avenue NW, Washington, DC 20036 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Upside and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Upside may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Upside or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Upside is entitled.
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Upside and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Upside agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Upside will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Upside will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Upside will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms of Service will continue to apply.
Notwithstanding any provision in this Terms of Service to the contrary, Upside agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Upside written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
You agree that Upside, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Services and remove and discard any content within the Services, for any reason, including, without limitation, for lack of use or if Upside believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Services may be referred to appropriate law enforcement authorities. Upside may also in its sole discretion and at any time discontinue providing the Services, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Upside may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Services. Further, you agree that Upside will not be liable to you or any third party for any termination of your access to the Services.
You agree that you are solely responsible for your interactions with any other user in connection with the Services and Upside will have no liability or responsibility with respect thereto. Upside reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Services.
These Terms of Service constitute the entire agreement between you and Upside and govern your use of the Services, superseding any prior agreements between you and Upside with respect to the Services. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service will be governed by the laws of the State of Delaware. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Upside agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Washington, DC. The failure of Upside to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of Upside, but Upside may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Services may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Services.
Under California Civil Code Section 1789.3, users of the Services from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Upside Services, Inc., 1701 Rhode Island Avenue NW, Washington, DC 20036, and (800) 741-6726
Please contact us at firstname.lastname@example.org to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Services.