Terms of Use

These Terms of Use are effective as of August 3, 2020.

Welcome to Upness!

These are the terms of use ("Terms of Use") for your use of services or features (the “Services”) on the site owned and controlled by Upness, LLC ("Upness"), including www.upness.com (the "Site"). We may add additional Sites from time to time as we expand our offerings and these Terms of Use will govern those new Sites when added. You may be accessing our Site from a computer or mobile phone device and these Terms of Use govern your use of our Site and your conduct, regardless of the means of access.

Please also review our Privacy Policy and the other terms and policies you may find throughout our Site in connection with certain functionality, ordering information or promotions. By accessing or using the Site, you are acknowledging that you have read, understand, and agree to be bound by these Terms of Use, and the other guidelines, policies and terms posted on the Site.

Upness reserves the right to change or modify any of the terms contained in the Terms of Use from time to time at any time, without notice, and in its sole discretion. If Upness decides to change these Terms of Use, Upness will post a new version on the Site and update the date set forth above. Any changes or modifications to these Terms of Use will be effective upon posting of the revisions. Your continued use of or access to our Site or the Services following the posting of any changes to them constitutes acceptance of those changes. For this reason, you should frequently review these Terms of Use and any other applicable policies, including their dates, to understand the Terms of Use that apply to your use of the Site.

Binding Contract

These Terms of Use form a legally binding contract between you and Upness. Please read these Terms of Use carefully before accessing or using the Site. By accessing or using the Site, you are acknowledging that you have read, understand, and agree to be bound by these Terms of Use, and the other guidelines, policies and terms posted on the Site.

Certain services may be subject to additional terms, guidelines or rules, which will be available in conjunction with those relevant Services, and those additional terms will become part of these Terms of Use when you use those Services. Any new features or products which are added to the current store shall also be subject to the Terms of Use.

We also like to interact with you on third party sites where we post content or invite your feedback, ("Third-Party Sites"). Upness does not control those Third-Party Sites, and these Terms of Use do not apply to companies that Upness does not own or control, or to the actions of people that Upness does not employ or manage. You should always check the terms of use posted on Third Party Sites.

Intellectual Property

Upness™ and other Upness trademarks, service marks, graphics and logos used in connection with the Services are trademarks or registered trademarks of Upness or other affiliated companies of Upness (collectively the “Upness Marks”). Other trademarks, service marks, graphics and logos used in connection with the Services are the trademarks of their respective owners (collectively “Third-Party Marks”). The Upness Marks and Third-Party Marks may not be copied, imitated or used, in whole or in part, without the prior written permission of Upness or the applicable trademark holder. The Services and Content (as defined herein) are protected by copyright, trademark, patent, trade secret, international treaties, laws and other proprietary rights, and also may have security components that protect digital information only as authorized by Upness or the owner of the Content.

Use of any materials on the Site in connection with any product or service that is not offered by Upness in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Upness, is also prohibited.

You may not use any data mining, robots, or similar data gathering and extraction tools on the Site or frame any portion of the Site. You may not circumvent any mechanisms included in the Site for preventing the unauthorized reproduction or distribution of the content or materials contained on the Site.

Accuracy of Information

From time to time there may be information on the Site that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, and availability. Upness reserves the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice (including after you have submitted your order).

While we make reasonable efforts to ensure the information provided on the Site is accurate, we make no warranties about the accuracy and reliability of the information, data or content on the Site. The content on the Site is provided for informational purposes only. Upness shall not be responsible or liable for the accuracy, usefulness or availability of any information transmitted or made available via the Site. See the “Disclaimer” Section below for more details.

We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor’s display of any color will be accurate.

Proper Use of the Site

By agreeing to these Terms of Use, you represent that you are at least the age of majority in your state or province of residence. You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction. You agree that you will use the Site in compliance with all applicable local, state, national, and international laws, rules and regulations, including any laws regarding the transmission of technical data exported from your country of residence and all United States export control laws. Violation of any of the foregoing may result in immediate termination of these Terms of Use and may subject you to state and federal penalties and other legal consequences. We reserve the right, but shall have no obligation, to investigate your use of the Site in order to (a) determine whether a violation of these Terms of Use has occurred or (b) comply with any applicable law, regulation, legal process or governmental request.

You may not use the Site in any manner that could damage, disable, overburden, or impair our servers or networks, or interfere with any other party's use and enjoyment of the Site. You may not attempt to gain unauthorized access to any services, user accounts, computer systems or networks, through hacking, password mining or any other means. We may take any legal and technical remedies to prevent the violation of this provision and to enforce these terms.

Certain parts of the Site may require a password to enter. You agree that you are responsible for all acts or omissions that occur on your account while your password is being used. If you believe someone has used your password or account without your authorization, you must notify us immediately. We reserve the right to access and disclose any information, including, without limitation, user names of accounts and other information, to comply with applicable laws and lawful government requests.

We may terminate the Services or any portion thereof, any website or webpage within the Site or any products or services offered through the Site, or terminate your right to access or use the Services or any portion thereof without notice and at any time for any reason. In the event of such termination, you are no longer authorized to access the Services, and the restrictions imposed on you with respect to the Content and the disclaimers, indemnities, and limitations of liabilities set forth in these Terms of Use, shall each survive such termination.

Use of Products and Services

All products should be used strictly in accordance with their instructions, precautions and guidelines. You should always check the ingredients for products to avoid potential allergic reactions. Please consult with your own physician or health care practitioner regarding the use of any goods, products or information received from the Site before using or relying on them. Your physician or health care practitioner should address any and all medical questions, concerns and decisions regarding the possible treatment of any medical condition. Upness does not give or intend to give any answers to medical related questions and the Site does not replace any medical professional or medical resource. IF YOU ARE IN NEED OF MEDICAL ATTENTION, CALL 911 OR YOUR PHYSICIAN IMMEDIATELY.

Fraud Protection

As part of our order processing procedures, we screen all received orders for fraud or other types of unauthorized or illegal activity. Upness reserves the right to refuse to process an order or refund due to suspected fraud or unauthorized or illegal activity. If such is the case, Upness may reject your order or our Customer Service department may call you at the phone number you provided to confirm your order. We also reserve the right to cancel any accounts, refuse to ship to certain addresses, or withhold refunds or concessions due to suspected fraud or unauthorized or illegal activity. Upness takes these measures to protect its customers as well as itself from fraud or other unauthorized or illegal activity.

No Reseller Activity

The products and services available on the Site are for personal use only. You may not sell or resell any of the products or services you purchase or otherwise receive from Upness. We reserve the right, with or without notice, to cancel or reduce the quantity of any order or withhold refunds or concessions, in our sole discretion, to those individuals we believe may be engaged in suspicious reseller activity or are otherwise violating these Terms of Use. Among other things, we may suspect reseller activity based on factors such as order frequency, amount and quantity.

Comments, Feedback and Other Submissions

Upness welcomes your comments and feedback regarding the Site, and Upness products and services. Any information, materials, suggestions, ideas or comments sent to us will not be treated as confidential, proprietary or trade secret information and, by submitting such information, you are granting Upness an irrevocable and unrestricted license to use, modify, reproduce, transmit, display and distribute such information for any purpose whatsoever. Unless required by law, Upness will not use your full name in connection with any such information, materials, suggestions, ideas or comments without your prior written consent.

We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Use.

Disclaimer of Warranties

UPNESS IS PROVIDING THE SITE AND THEIR CONTENTS ON AN "AS-IS" BASIS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE OPERATION OF THE SITE, THE INFORMATION, OR CONTENT INCLUDED ON THE SITE. TO THE FULLEST EXTENT PERMITTED BY LAW, UPNESS DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING FOR EXAMPLE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, UPNESS DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THE SITE IS ACCURATE, COMPLETE OR CURRENT. UPNESS WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SITE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY, AND THE LIABILITY OF OUR SUBSIDIARIES AND AFFILIATES, SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

We may provide you with access to third-party tools over which we neither monitor nor have any control nor input. You acknowledge and agree that we provide access to such tools is” as is” and “as available” without any warranties or representations of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.

Limitation of Liability

EXCEPT AS PROVIDED IN THE DISCLAIMER SECTION ABOVE, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY OTHER DISPUTE WITH US RELATING TO THE USE OF THE SITE IS TO DISCONTINUE YOUR USE OF THE SITE. IN NO EVENT SHALL OUR LIABILITY, OR THE LIABILITY OF OUR AGENTS, AFFILIATES, SUBSIDIARIES AND REPRESENTATIVES FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SITE EXCEED THE TOTAL AMOUNT OF FEES THAT YOU PAID US DURING A ONE-YEAR PERIOD FOR THE SPECIFIC SERVICE AT ISSUE OR THE COST OF THE PRODUCT AT ISSUE.

UPNESS, ITS AGENTS, AFFILIATES, SUBSIDIARIES AND REPRESENTATIVES SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF OR INABILITY TO USE THE SITE. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY, AND THE LIABILITY OF OUR SUBSIDIARIES AND AFFILIATES, SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, INFORMATION, ADVICE OR STATEMENT ON THE SITE. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION, OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE SITE. PLEASE SEEK THE ADVICE OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC INFORMATION, OPINION, ADVICE OR OTHER CONTENT ON THE SITE.

Indemnification

You agree to indemnify, defend and hold Upness (and its parents, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees), harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party, or any allegation thereof. This indemnification obligation will survive the termination of these Terms of Use and your use of the Site.

If you believe your work or content has been copied and posted to the Site in a way that constitutes copyright infringement, please provide Upness’ designated copyright agent, listed below, the following written information in accordance with the Digital Millennium Copyright Act (17 U.S.C. 512 et seq.): (the "DMCA"):

An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
A description of the copyrighted work that you claim has been infringed upon;
A description of where the material that you claim is infringing is located on the Site;
A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
Your name, address, telephone number and email address (if available); and
A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf.

If you receive such a notice, you may provide counter-notification in writing to the designated agent that includes the information below. To be effective, the counter-notification must be a written communication that includes the following:

Your physical or electronic signature;
Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
A statement from you, under penalty of perjury, that you have a good-faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a Federal District Court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be found, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.

Upness’ designated agent for claims of copyright infringement can be reached at:

c/o Legal Department

Upness, LLC

19867 Prairie Street

Suite 300

Chatsworth, CA 91311

E mail: legal@upness.com

Responsibility for your Content

You are solely responsible for all content that you upload, post, email or otherwise transmit via or to the Site, including the submission of product ratings & reviews and all other data, profile information, documents, text, software, applications, music, sound, photographs, graphics, video, messages, forum postings, comments, questions, answers or other materials (collectively, the "Content").

For any Content that you submit, you grant Upness a worldwide, perpetual, non-exclusive, irrevocable, royalty-free, sublicenseable and transferable right and license to use, reproduce, communicate, distribute, share, copy, modify, delete in its entirety, edit, adapt, publish, translate, publicly display, publicly perform, use, create derivative works from and/or sell and/or distribute such Content and/or incorporate such Content into any form, medium or technology whether now or hereafter known throughout the world without compensation to you. This license will survive the termination of these Terms of Use and your use of the Site.

Subject to your compliance with this Agreement, Upness hereby grants you a limited, personal, revocable, non-transferable, non-sublicensable, and non-exclusive license to access the Service and use the content, information, text, images, graphics, interfaces, audio and video clips and any other materials displayed through the Services (collectively, the “Content”), solely for your personal, non-commercial use.

You may not copy, modify, reproduce, publicly display or perform, distribute, or otherwise use the Content except as expressly set forth in this Agreement. You may not remove any copyright or other proprietary notices from any Content. If you breach any term, your authorization to use the Services and Content automatically terminates without notice to you.

Severability

In the event that any provision of these Terms of Use is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Use, such determination shall not affect the validity and enforceability of any other remaining provisions.

15. Chat Sessions

Upness may offer to its customers the ability to enter into an instant messaging session (“Chat Sessions”) with an Upness Customer Care Agent (“Customer Care Agent”). In order to maintain a high standard of service and provide a safe environment for its Customer Care Agents, Upness reserves the right to refuse, discontinue, and/or block you from Chat Sessions for acts we consider to be inappropriate, such as unreasonable demands, misrepresentations, personally threatening or offensive language, and/or erratic behavior or acts that violate the Terms of Use.

Due to account security restrictions Customer Care Agents are not able and will not fulfill certain types of requests. If your request requires making a payment OR canceling your service, please log onto your account or email customer service at customercare@Upness.com to complete such transactions. Customer Care Agents may request your account login user name, email address, or other personally identifiable information in order ensure the identity and security of the chat. Customer Care Agents will not request your password to confirm your account. If a Care Agent asks for your password information, please immediately discontinue the Chat Session and email Upness at: support@upness.com.

SMS/MMS Mobile Message Marketing Program Terms and Conditions

16.1 Program. Opting in to or participating in any of our Mobile Messaging Programs, (the “Program”) you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below.

16.2 User Opt In. The Program allows users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.

16.3 User Opt Out. If you do not wish to continue participating in the Program or no longer agree with these terms, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.

16.4 Duty to Notify and Indemnify. If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.

YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.

16.5 Program Description. Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning Postscript's services, including performance metrics, tips, alerts, promotions and other notifications.

16.6 Cost and Frequency. Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.

16.7 Support Instructions. For support regarding the Program, text “HELP” to the number you received messages from or email us at support@postscript.io. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.

16.8 MMS Disclosure. The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.

16.9 Our Disclaimer of Warranty. The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.

16.10 Participant Requirements. You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.

16.11 Prohibited Content. You acknowledge and agree to not send any prohibited content over the Site or through the Program. Prohibited content includes:

Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.

16.12 Message Deliverability. Carriers (e.g. AT&T, Verizon, T-Mobile, Sprint, etc.) are not responsible or liable for undelivered or delayed messages.

No Waiver

The failure of Upness to insist upon strict adherence to any term of these Terms of Use shall not constitute a waiver of such term. Further, it shall not impact Upness’ ability to enforce any other provision in these Terms of Use. You agree that regardless of any statute or law to the contrary, any claim of cause of action arising from or relating to use of the Site or these Terms of Use must be filed within one (1) year after such claim or cause of action arose, or will be forever barred.

Agreement to Arbitrate Disputes; Class Waiver; Waiver of Trial by Jury

Please read this Section carefully. It is part of your contract with Upness and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

Most customer concerns can be resolved quickly and to a customer’s satisfaction by writing to our customer service department at customercare@upness.com or Upness, Attn: Customer Service, 19867 Prairie Street, Suite 300, Chatsworth, California 91311. In the unlikely event that our customer service department is unable to resolve a complaint you may have to your satisfaction, the terms of this Section govern dispute resolution between us.

All claims and disputes in connection with these Terms of Use or the use of any product or the Services provided by Upness 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 Section. This Arbitration Agreement applies to you and Upness, and to any of Upness’ licensors, suppliers, dealers or third-party vendors, subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under these Terms of Use.

Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. 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 this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with this Arbitration Agreement (“Arbitration Rules”). The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879.

Authority of Arbitrator. The arbitrator will decide the rights and liabilities, if any, of you and Upness, 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 and 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 Arbitration Rules, and the Terms of Use. 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 Upness.

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 court and are subject to very limited review by a court. In the event any litigation should arise between you and Upness in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND UPNESS 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 ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable that neither you nor Upness are entitled to arbitration, claims and disputes shall be resolved in a court located in Los Angeles County, California.

30-Day Right to Opt Out You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: Upness, Attn: Legal Department, 19867 Prairie Street, Suite 300, Chatsworth, California 91311.The Opt-Out Notice must be emailed no later than thirty (30) days after the date you first accept these Terms of Use by using the Site. If you send this notice, then the Arbitration Agreement will not apply to either party and you must litigate pursuant to the terms contained in Section 20 below. If you do not send this notice, then you agree to be bound by this Arbitration Agreement.

This Agreement to Arbitrate will survive the termination of your relationship with Upness.

Entire Agreement

These Terms of Use and any policies or operating rules posted by us on this site or in respect to The Services and the Site constitutes the entire agreement and understanding between you and us and govern your use of the Services, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Use).

Governing Law and VenueThese Terms of Use are governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of California, without regard to its conflicts of laws rules. Foreign laws do not apply. If any provision of the Agreement is invalid under the law of a particular jurisdiction, that provision will not apply in that jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this Agreement. For any action where the Arbitration Agreement permits the parties to litigate in court, you further expressly consent and agree to submit to the exclusive jurisdiction and venue of a court of competent jurisdiction located in Los Angeles County, California.
Privacy and Date Protection

Upness is committed to protecting the privacy of your personal information. By using the Site, you acknowledge and agree that Upness’ collection, usage and disclosure of this personal information is governed by our Privacy Policy.

Questions about the Terms of Use should be sent to us at: legal@upness.com.