Last Revised June 1, 2015

 

PLEASE READ THESE CONSUMER TERMS OF SERVICE AND THE RELATED PRIVACY POLICY LOCATED AT www.upsessive.com/privacypolicy CAREFULLY BEFORE USING THIS WEBSITE.

 

1.     General

This website is owned and operated by Upsessive Inc. (“Company, “us” or “we”).  These Consumer terms of service (the “Terms of Service”, “TOS” or “Agreement”) set forth the legal terms and conditions governing your use of our website located at www.upsessive.com and any other online and mobile websites and interactive applications operated by Company that are related to www.upsessive.com (collectively, the “Site”), unless a different policy is provided on a particular site, application or service.  If a different policy is provided, that policy will govern your use of the particular site or application to which it applies.  Your use of this Site confirms your unconditional agreement to be bound by these Terms of Service and any other applicable terms they incorporate. Your right to use the Site is subject to your continued compliance with these Terms of Service.  If you do not agree to be bound by these Terms of Service, you may not access or otherwise use the Site.  Before using the Site, please review the related Company Privacy Policy, located at www.upsessive.com/privacypolicy (the “Privacy Policy”), which is incorporated by these Terms of Service.

 

2.     Upsessive’s relationship with the consumer

Company is a service provider that enables consumers to make payments to merchants in the context of buying products or services online on www.upsessive.com, using their payment cards. Except for Company’s role in processing payments that the consumer authorizes or initiates.  

 

3.     Eligibility

  1. To use the Company service, the consumer needs to:

    1. Be of at least 18 years of age.

    2. Be a resident of the USA

    3. Be authorized to make payments with the provided payment card.

  2. Provide accurate, current and complete information and maintain it over time.

  3. In case of a dispute about an order, work directly with Upsessive to achieve an amicable solution. Please see sections on disputes and chargebacks.

  4. Company, in its sole discretion, remains the right to, at any time, request additional information to verify the information provided by the consumer and that the consumer is authorized to use the provided payment card.

  5. Consumer may not post obscene or offensive comments related to the Company service.

  6. Consumer does a reasonable effort to keep his account secure, i.e. uses an adequately secure password, does not disclose his password to and does not share his account with third parties.

 

4.     Profile and account

Certain parts or features of the Site may require registration or may otherwise require you to provide information to participate in certain features or to access certain content.  The decision to provide this information is purely voluntary and optional; however, if you elect not to provide such information, you may not be able to access certain content or participate in certain parts or features of the Site.  You agree that the information you provide shall be truthful and accurate, and that you will not provide any false information to or through the Site. You agree that you will not create an account for anyone other than yourself without the permission of the person for whom you create the account.  You also agree that you will also not create more than one personal profile, and if you select a username for your account, we reserve the right to remove or reclaim it if we believe appropriate (such as if a trademark owner complains about a username).  If you register with the Site, you are responsible for maintaining the confidentiality of your password, if any, and for restricting access to your computer so that others may not access the password protected portion of the Site.  You accept responsibility for all activities that occur under your account, email or password, if any, and agree you will not sell, transfer or assign your membership or any membership rights.  The Company may, in its sole discretion, and at any time, with or without notice, terminate your password and membership, for any reason or no reason at all.  If we disable your account, you agree that you will not create another one without our permission.

 

5.     License to the Site

Company grants you a non-exclusive, non-transferable, limited right and license to access, use and privately display the Site and the materials thereon for your personal use only, provided that you comply fully with these Terms of Service. You will not interfere or attempt to interfere (or permit the use of your membership by a third party to interfere or attempt to interfere) with the operation or use of Site by the Company or by other members or merchants in any way, through any means or device including, but not limited to, spamming, hacking, uploading computer viruses or time bombs, or any other means expressly prohibited by any provision of these Terms of Service.

 

6.     Changes to the Site and/or Terms of Service

The Company reserves the right, from time to time, in its sole discretion, to change, modify, update, discontinue, remove, revise, delete or otherwise change any portion of the Site or these TOS, in whole or in part, at any time, and without further notice.  For changes to these TOS that we deem material, we will place a notice on the Company website located at www.upsessive.com by revising the link on the homepage to read substantially as “Updated Terms of Service” for up to three (3) weeks or some other amount of time that we determine in our discretion.  We may also, at our discretion, provide notification of changes by other means.  If you access or use the Site in any way after the TOS have been changed, you will be deemed to have read, understood and unconditionally consented to and agreed to such changes.  The most current version of these TOS will be available on the Site and will supersede all previous versions of these TOS.

 

7.     Trademarks, Copyrights and Restrictions

The Site and all of the content it contains, or may in the future contain, including but not limited to text, video, pictures, graphics, designs, information, applications, software, music, audio files, articles, directories, guides, photographs as well as the trademarks, service marks, trade names, trade dress, copyrights, logos, domain names, code, patents and/or any other form of intellectual property (collectively, the “Material”) that relates to the Site are owned by or licensed by Company or other third parties and are protected from any unauthorized use, copying and distribution by copyright, trademark and other laws and international treaties.  Except as expressly permitted in writing by Company, you shall not capture, reproduce, perform, transfer, sell, license, modify, create derivative works from or based upon, republish, reverse engineer, upload, edit, post, transmit, publicly display, frame, link, distribute or exploit, in whole or in part, any of the Material.  Nothing contained in this Agreement or on the Site does or may be construed to grant, by implication, estoppel or otherwise, any license or right to use any Material in any manner without the prior written consent of Company or such third party that may own the Material or intellectual property displayed on the Site.  Unauthorized use, copying, reproduction, modification, publication, republication, uploading, framing, downloading, posting, transmitting, distributing, duplicating or any other misuse of any of the material is strictly prohibited.  Any use of the Material other than as permitted by this Agreement will violate this Agreement and may infringe upon our rights or the rights of the third party that owns the affected Material.  You agree to report any violation of this Agreement by others of which you become aware.  You are advised that Company will enforce its rights to the fullest extent of the law.  Company may add, change, discontinue, remove or suspend any of the Material at any time, without notice and without liability.

 

8.     Linked Sites

The Site may contain links to third party websites or resources, which may or may not be obvious (“Third Party Sites”) as well as software, text, graphics, articles, photographs, pictures, designs, sound, video, music, information, software applications and other content originating from third parties (collectively, “Third Party Applications, Software or Content”).  Our provision of links to Third Party Sites is not an endorsement of any information, product or service that is offered on or reached through such Third Party Site or of any Third Party Application, Software or Content.  Such Third Party Sites and Third Party Applications, Software or Content are not monitored or checked for accuracy, appropriateness, effectiveness, security, or completeness by us, and we are not responsible for the content or performance of any Third Party Sites accessed through the Site or any Third Party Applications, Software or Content posted on, available through or installed from the Site.  In particular, and without limitation, we are not responsible for the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Applications, Software or Content.  If you decide to leave the Site and access the Third Party Sites or to use or install any Third Party Applications, Software or Content, you do so at your own risk, and you acknowledge that our terms and policies do not govern your use of them.

 

You agree that your use of third-party sites or third party applications, software or content, including, without limitation, your use of any content, information, data, advertising, products, or other materials on or available through such websites and resources, is at your own risk and is subject to the terms and conditions of use applicable to such sites and resources.

 

9.  Promotions

From time to time, the Site may offer sweepstakes, contests or other promotions that require you to send material or information about yourself.  Please note that sweepstakes, contests or promotions offered via the Site may be, and often are, governed by a separate set of rules.  In addition to describing such sweepstakes, contest or promotion, these separate rules may have eligibility requirements, such as certain age or geographic area restrictions, terms and conditions governing the use of material you submit, and supplemental disclosures about how your personal information may be used.  It is your responsibility to read such rules to determine whether or not you want to and are eligible to participate, register and/or enter.  By entering any such sweepstakes, contest or other promotion, you warrant that you are eligible to participate, and you agree to comply with such rules and with the decisions of the sponsor(s) identified therein, which shall be final and binding in all respects.

 

10.  Termination

You understand and agree that the Company may, in its sole discretion and at any time, terminate your password or Account and/or prohibit you from accessing the Site, in whole or in part, for any reason or no reason at all, in its sole discretion.  You understand and agree that the Company may take any one or more of these actions without prior notice to you.  Should the Company take any of these actions, it may, in its sole discretion, immediately deactivate and/or delete any or all information about and concerning your account, including your Registration Information.  You understand and agree that Company shall not have any liability to you or any other person for any termination of your account or the removal of information concerning your account.  Company will determine your compliance with this Agreement in its sole discretion.  Any violation of this Agreement may result in restrictions on your access to all or part of the Site and may be referred to law enforcement authorities.  No changes to or waiver of any part of this Agreement shall be of any force or effect unless formally posted by the Company or made in writing and signed by a duly authorized officer of Company.  Upon termination of your membership or access to the Site, or upon demand by Company, you must destroy all materials obtained from the Site and all related documentation and all copies and installations thereof.  You are advised that the Company will enforce its rights to the fullest extent of the law.  

 

11.  Returns & Exchanges

Returns and exchanges are handled by Upsessive, which also define the conditions under which items can be returned:

  1. In general, items are returnable within 30 days of purchase.

  2. Items may be excluded, e.g. if they show obvious signs of usage or wear.

  3. In case of an exchange, shipping fees are paid by the Company.

  4. If the consumer experiences an issue related to returning an item, user can, at any time, contact Company which will then undertake an adequate effort to achieve a satisfactory outcome for the consumer. Company does not guarantee that it will be able to resolve the issue to the consumer’s satisfaction.

 

To learn how to return items to Upsessive click here.

 

12.  Disputes and chargebacks

In the unfortunate case that the consumer experiences an issue related to a purchase, (e.g., does not receive the purchased product or service or the received product is damaged), the user needs to contact the Company to work on an amicable solution. In case the consumer, instead of contacting the Company, initiates a chargeback with his payment card’s issuer, Company treats this as a fraudulent activity and immediately and indefinitely suspends the consumer from the Company service to prevent further abuse.

 

13.  Jurisdictional Issues

The Site is controlled and operated by Company from its offices within the State of California, United States.  The Company makes no representation that materials in the Site are appropriate or available for use in other locations.  Software made available from this Site is further subject to United States export controls. No software from this Site may be downloaded or otherwise exported or re-exported:  (i) Into (or to a national or resident of) any countries that are subject to U.S. export restrictions; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders.  By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.

 

14.  Disclaimers

The Site may be unavailable from time to time due to maintenance or malfunction of computer equipment or for various other reasons.  The Company assumes no responsibility for any delays, interruptions, errors, defects, omissions, or deletions, related to the communications line failure, operation or transmission, or alteration of, or theft or destruction or unauthorized access to, user communications.  The Company is not responsible for any technical or non-technical malfunction or other problems of any hosting services, computer systems, servers or providers, telephone networks or telephone services, computer or mobile phone equipment, software, failure of e-mail or players on account of technical problems or traffic congestion on the Internet or in connection with the Site, including injury or damage to a user’s or to any other person's computer, mobile phone, or other hardware or software, related to or resulting from using or downloading materials in connection with the Web and/or in connection with the Site.

 

The Company makes no representation or warranty whatsoever regarding the completeness, accuracy, currency or adequacy of any information, facts, views, opinions, statements or recommendations contained on the Site and/or the Material.  References to any product, process, publication or service of any third party by trade name, domain name, trademark, service mark, logo, manufacturer or otherwise does not constitute or imply its endorsement or recommendation by the Company.  Views and opinions of users of the Site do not necessarily state or reflect those of the Company.

 

The Internet may be subject to breaches of security.  The Company is not responsible for any resulting damage to any user's computer from any such security breach, or from any virus, bugs, tampering, unauthorized intervention, fraud, error, omission, interruption, deletion, defect, delay in operation or transmission, computer line failure or any other technical or other malfunction.  You should also be aware that email submissions over the Internet may not be secure, and you should consider this before submitting any information to anyone over the internet.

 

The Company makes no representation or warranty whatsoever regarding the suitability, functionality, availability or operation of the Site.  The Company is not responsible for the content or performance of any portion of the Internet including other websites to which this Site may be linked or from which this Site may be accessed.

 

THE SITE, THE MATERIALS, AND THE SOFTWARE, IF APPLICABLE, ARE PROVIDED “AS IS” “WITH ALL FAULTS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THOSE ARISING BY STATUTE OR OTHERWISE IN LAW FROM A COURSE OF DEALING OR USAGE OF TRADE. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

THE COMPANY DOES NOT WARRANT THE AVAILABILITY OF THE SITE OR ANY FEATURE OR CONTENT OF THE SITE WILL BE UNINTERRUPTED.  THE COMPANY DOES NOT WARRANT THAT THE SERVICES PROVIDED BY THE SITE, THE MATERIALS OR THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; THAT THE SITE, THE SERVER THAT MAKES IT AVAILABLE OR THE SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT THE SITE, MATERIALS, SOFTWARE, OR SERVER DO NOT VIOLATE ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON OR ENTITY.  THE COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE, THE MATERIALS OR THE SOFTWARE. THE COMPANY MAKES NO WARRANTIES OR REPRESENTATION WITH RESPECT TO THE CORRECTNESS, ACCURACY, RELIABILITY, SAFETY, SECURITY, OR OTHER QUALITIES OF THE SITE, THE MATERIALS OR THE SOFTWARE. YOU (AND NOT COMPANY) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE EXCLUSIONS ABOVE MAY NOT FULLY APPLY TO YOU.

 

15.  Limitation of Liability

YOU AGREE THAT THE COMPANY AND ITS PARENTS, AFFILIATES, SUBSIDIARIES, LICENSORS AND ASSIGNS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, OFFICERS AND DIRECTORS (COLLECTIVELY, THE “RELEASED PARTIES”) ARE NOT LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND, WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING OUT OF OR RESULTING IN ANY WAY FROM OR IN CONNECTION WITH THE SITE, THE MATERIAL, ANY LISTING OR ANY ERRORS OR OMISSIONS IN THE TECHNICAL OPERATION OF THE SITE, EVEN IF THE COMPANY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, THEFT OR DESTRUCTION OF, OR UNAUTHORIZED ACCESS TO THE SITE (COLLECTIVELY, THE “RELEASED MATTERS”).

 

BY ACCESSING THE SITE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS:

 

“A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”

 

You hereby waive any and all rights you have or may have under California Civil Code Section 1542, and/or any similar provision of law or successor statute to it, with respect to the Released Matters.  In connection with this waiver and release, you acknowledge that you are aware that you may hereafter discover claims presently unknown or unsuspected, or facts in addition to or different from those which you now know or believe to be true.  Nevertheless, you intend by this Agreement to release fully, finally and forever all Released Matters under this Agreement.  In furtherance of such intention, the releases set forth in this Agreement shall be and shall remain in effect as full and complete releases notwithstanding the discovery or existence of any such additional or different claims or facts relevant hereto.

 

TO THE EXTENT THAT ANY WARRANTY OR LIABILITY MAY NOT, BY LAW, BE FULLY DISCLAIMED, OR THAT THE DISCLAIMERS OF WARRANTIES AND LIABILITIES HEREIN ARE FOUND TO BE UNENFORCEABLE, COMPANY’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION OR THE NATURE OF THE CLAIM, WILL AT ALL TIMES BE LIMITED TO NOT MORE THAN $1000.  YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE APPROXIMATION OF THE MAXIMUM AMOUNT OF ECONOMIC HARM THAT MIGHT RESULT FROM THE USE OF THE SITE, AND THAT THIS LIMITED REMEDY IS VALID AND ENFORCEABLE EVEN IF IT FAILS OF ITS ESSENTIAL PURPOSE, AND YOU WAIVE ANY CLAIMS TO THE CONTRARY.

 

16.  Linking Policy

If you link to the Site, we require that you follow these guidelines.  You may link only to the home page, and the link must be in plain text, unless otherwise approved in writing by an authorized representative of the Company.  The link to this Site must not damage, dilute or tarnish the goodwill associated with any Company names and/or intellectual property, nor may the link create the false appearance that your website and/or organization is sponsored, endorsed by, affiliated and/or associated with Company.  You may not “frame” the Site or engage in “in-line linking” to the Site.  You may not alter the Site or its intellectual property or Material in any way.  You may not link to the Site from a site that is unlawful, abusive, indecent or obscene, that promotes violence or illegal acts, that contains expressions of racism, that is libelous, defamatory, scandalous, or inflammatory or is otherwise deemed inappropriate, as determined by the Company in its sole discretion.  The Company reserves the right, in its sole discretion, to terminate a link with any website for any reason or no reason at all, including without limitation any website that the Company deems to be inappropriate or inconsistent with or antithetical to the Site and/or these Terms.

 

17.  Indemnification

BY USING THE SITE YOU AGREE TO INDEMNIFY, DEFEND AND HOLD THE RELEASED PARTIES HARMLESS FROM AND AGAINST ANY THIRD PARTY CLAIMS, ALLEGED CLAIMS, DEMANDS, CAUSES OF ACTION, JUDGMENTS, DAMAGES, LOSSES, LIABILITIES, AND ALL COSTS AND EXPENSES OF DEFENSE, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES, ARISING OUT OF OR RELATING TO: YOUR BREACH OF YOUR REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS HEREUNDER; YOUR VIOLATION OF THESE TERMS OF SERVICE OR ANY LAW; YOUR USE OF THIS SITE AND/OR THE MATERIAL IN VIOLATION OF THESE TERMS OF SERVICE; INFORMATION OR MATERIAL POSTED OR TRANSMITTED THROUGH YOUR COMPUTER OR MEMBERSHIP ACCOUNT, EVEN IF NOT SUBMITTED BY YOU, THAT INFRINGES ANY COPYRIGHT, TRADEMARK, TRADE SECRET, TRADE DRESS, PATENT, PUBLICITY, PRIVACY OR OTHER RIGHT OF ANY PERSON OR DEFAMES ANY PERSON; ANY MISREPRESENTATION MADE BY YOU; AND/OR THE COMPANY’S USE OF YOUR INFORMATION.  YOU WILL COOPERATE AS REASONABLY REQUIRED IN THE COMPANY’S DEFENSE OF ANY CLAIM. THE COMPANY RESERVES THE RIGHT, AT ITS OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, AND YOU SHALL NOT IN ANY EVENT SETTLE ANY SUCH MATTER WITHOUT THE WRITTEN CONSENT OF THE COMPANY.

 

18.  Governing Law

These TOS shall be governed and construed in accordance with the laws of the State of California applicable to contracts entered into and fully performed in California (without regard to its conflicts of law principles that would cause the application of any other jurisdiction's laws).  With respect to any disputes or claims not subject to arbitration, you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts located in Oakland, California and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Oakland, California.

 

19.  Arbitration

By using this Site in any way, you unconditionally consent and agree that:

 

(1) Any claim, dispute, or controversy (whether in contract, tort, or otherwise) between you and the Company or its officers, directors, employees, parents, subsidiaries, or affiliates (collectively referred to as the “Company Entities”) arising out of, relating to, or connected in any way with the Site, your use of the Site, or the determination of the scope or applicability of this agreement to arbitrate, will be resolved exclusively by final and binding arbitration administered by JAMS and conducted before a single arbitrator, in accordance with the JAMS Streamlined Arbitration Rules & Procedures (except to the degree that those rules are modified by this Agreement).

 

(2) If the JAMS will not accept and administer the arbitration in accordance with this Agreement, the parties will select an independent arbitrator.  The arbitrator shall be a retired judge or an attorney with substantial experience as an arbitrator.  The arbitrator will be selected as follows:  (i) within twenty (20) days of notice from JAMS, each party will propose three potential arbitrators; (ii) the parties will make a good faith effort to agree on an arbitrator selected from one or both of the parties’ lists; (iii) if the parties do not agree on an arbitrator within twenty days, the parties will each specify one of the potential arbitrators identified, and those two shall select an arbitrator for the dispute.  If the potential arbitrators are unable to agree or the selected arbitrator is unable or unwilling to serve at any time, the process for selection of an arbitrator specified above will be repeated until an arbitrator able and willing to serve is identified.  The arbitration will be governed by the JAMS Streamlined Arbitration Rules & Procedures, as modified by this Agreement.

 

(3) This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16.

 

(4) The arbitration shall be held in Oakland, California, unless the arbitrator determines that it is necessary for the arbitration to be conducted in another location.  You may elect to have the arbitration conducted based entirely on the papers submitted by you and the Company Entities, or you may elect to participate in the arbitration by telephone or video conference.

 

(5) The arbitrator’s decision shall be controlled by this Privacy Policy, the Terms of Service, and any of the other agreements referenced herein that you may have entered into in connection with the Site.

 

(6) The arbitrator shall apply California law and statutes of limitation to any claims asserted by you or the Company Entities, consistent with the FAA, and shall honor claims of privilege recognized at law.

 

(7)  Neither you nor any Company Entity may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any claim subject to arbitration.  Claims subject to arbitration may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or a Company Entity’s individual claims.  The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.

 

(8) The arbitrator shall not have the power to award exemplary or punitive damages against you or any Company Entity.

 

(9) In the event that the administrative fees and deposits that must be paid to initiate arbitration against any Company Entity exceed $125 USD, and you are unable (or not required under the JAMS rules) to pay any fees and deposits that exceed this amount, Company agrees to pay them and/or forward them on your behalf, subject to ultimate allocation by the arbitrator.  In addition, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Company will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.

 

(10) The arbitrator may award legal, declaratory, equitable, or injunctive relief, but only in favor of the individual party seeking relief and only as necessary to provide the relief warranted by that party's individual claim.  Any award may be confirmed and enforced in any court of competent jurisdiction.  Any proceedings to enforce, vacate, or modify any arbitration award will be governed by the FAA and the laws of the State of California, without regard to its choice of law provisions.

 

(11) You and the Company agree that no federal, state, or local court shall have any authority to address or resolve any claim subject to arbitration, except as expressly provided herein.  You and the Company hereby waive any right to a jury trial of any claim.  This agreement does not preclude you or any Company Entity from seeking action by federal, state, or local government agencies; such agencies can, if the law allows, seek relief on your or the Company’s behalf.  You and any Company Entity also have the right to bring qualifying claims in small claims court.  In addition, you and the the Company Entities retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, except that any dispute as to the arbitrability of any claim and the application or enforceability of this arbitration agreement will be addressed and resolved exclusively by the arbitrator.

 

(12) If any part of this arbitration agreement (other than paragraph (6) above) is deemed to be invalid, unenforceable or illegal, or conflicts with the JAMS rules, then the balance of this arbitration agreement shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein.  If paragraph (6) of this arbitration agreement is found to be invalid, unenforceable or illegal, then the entirety of this arbitration agreement shall be null and void, and neither you nor the Company shall be required or entitled to arbitrate disputes.

 

20.  Miscellaneous

These TOS constitute the entire agreement of the parties with respect to the subject matter hereof and supersede all prior or contemporaneous written or oral agreements between the parties with respect to the subject matter hereof.  These TOS may not be amended, nor any obligation waived, without the Company’s written authorization.  Any failure to enforce any provision of these TOS shall not constitute a waiver thereof or of any other provision thereof.

 

If any provision of these TOS shall be found unlawful, void, or for any reason unenforceable, then except as provided in the provisions under the heading “Arbitration” above, that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions.

 

For any questions, suggestions, or concerns related to these Terms of Service, please visit our “Contact Us” page for more info.

 

© 2016 Upsessive Inc.  All rights reserved.