UPWEST TERMS & CONDITIONS
Welcome to UpWest! These Terms and Conditions (“Terms”) govern your use of the website on which they appear, including upwest.com (the “Site”). These Terms also govern any account you may have on upwest.com (“Site Account”).
The Services are made available to you by UW, LLC (“UpWest,” “we,” or “us”). Please review these Terms before using the Services, including making purchases, creating an Account, using the Site, or participating in the Program. These Terms, which may be modified from time to time, apply to all visitors to, or users of, the Services, including without limitation all participants in the Program.
ACCESSING, BROWSING OR OTHERWISE USING THE SERVICES INDICATES YOUR AGREEMENT TO THESE TERMS INCLUDING THE ARBITRATION PROVISION WITH A CLASS ACTION WAIVER, SO PLEASE READ THESE TERMS CAREFULLY BEFORE PROCEEDING. THIS SERVICES ARE INTENDED FOR USE AND PARTICIPATION IN THE UNITED STATES ONLY AND WILL BE GOVERNED BY US LAW. IF YOU DO NOT AGREE TO THESE TERMS AND/OR ARE NOT LOCATED IN THE UNITED STATES, DO NOT USE THE SERVICES.
From time to time we may update the Services and these Terms. For example, we reserve the right to add, withdraw, or otherwise change the ways in which you can earn Points at our sole discretion, with or without notice to you. Your use of the Services after we post any changes to these Terms constitutes your agreement to those changes. You agree to review these Terms periodically to ensure that you are familiar with the most recent version. UpWest may, in its sole discretion, and at any time, discontinue the Services or any part thereof (including, without limitation the Program), with or without notice, or may prevent your use of the Services with or without notice to you. You agree that you do not have any rights in the Services and that UpWest will have no liability to you if the Services are discontinued or your ability to access the Services or any content you may have posted on the Services is terminated. In the event of a violation of these Terms, we reserve the right to seek all remedies available by law and in equity.LIMITED LICENSE:
Unless otherwise indicated, the Services and any materials or contents thereof (including without limitation, all text, photographs, artwork, images, video and audio; all materials provided in connection with or related to the Program; and all software, HTML code, and scripts) (collectively, “Materials”) are the exclusive property of UpWest, and are protected by copyright, trademark, trade dress and other laws, as well as other U.S. and international laws and treaties. All Materials are provided by UpWest as a service to its current and prospective customers and visitors to the Services and may be used only for personal informational purposes and only if you also retain all copyright and other proprietary notices contained on the Materials. No right, title or interest in our Materials is conveyed to you. This is a limited license, not a transfer of title to our Materials, and such license is subject to the following restrictions: (a) you may not copy, reproduce, publish, transmit, distribute, perform, display, post, modify, create derivative works from, sell, license or otherwise exploit the Services or any of our Materials without our express prior written permission; and (b) you may not access or use the Services for any competitive or commercial purpose. Any unauthorized copying, alteration, distribution, transmission, performance, display, or other use of these Materials is prohibited. UpWest may revoke this limited license at any time for any or no reason. All rights not expressly granted are reserved by UpWest.TRADEMARKS:
UpWest, or its affiliates, retains all rights regarding their trademarks, trade names, brand names and trade dress. These marks, names or trade dress, and all associated logos or images, are registered and/or common law trademarks of UpWest or its affiliates and are protected by U.S. and international laws and treaties. No license to the use of such marks, names or trade dress is granted to you under these Terms or by your use of the Services. Your misuse of the trademarks displayed on the Services is strictly prohibited. The Services may also contain references to other trademarks, trade names, brand names and/or trade dress from entities other than UpWest. These trademarks, trade names, brand names and/or trade dress are the property of the respective owners and references to them do not suggest sponsorship or association with UpWest.
UpWest has a no-tolerance policy regarding the use of our trademarks and trade dress in meta tags and/or hidden text. Specifically, the use of our trademarks and trade dress in metatag keywords or in search engine tags or links is trademark infringement, and the use of our trademarks and trade dress in page text, metatags and/or hidden text for purposes of gaining higher rankings from search engines is unfair competition. Linking to any page on the Services is prohibited without our express written permission. Framing, inline linking or other association of the Services or its Materials with links, advertisements and/or other information not originating from the Services is also prohibited. You are also advised that we will enforce our intellectual property rights to the fullest extent of the law, including the seeking of civil remedies and criminal prosecution.USER SUBMISSIONS:
The Services may permit the submission of user-submitted text, artwork, photographs, product ideas, video, audio, and images ("User Submissions"). You understand that such User Submissions may be accessed and viewed by others, including by the general public, and, whether or not such User Submissions are published, UpWest does not guarantee any confidentiality with respect to any User Submissions. You are solely responsible for your own User Submissions and the consequences of publishing them on the Services. UpWest reserves the right to waive any requirements with respect to User Submissions set forth herein in its reasonable discretion.
By submitting User Submissions, you hereby grant to UpWest an unrestricted, nonexclusive, perpetual, royalty-free, worldwide, transferable and irrevocable license and right, but not the obligation, to use, edit, alter, copy, reproduce, disclose, display, publish, remove, prepare derivative works from, perform, distribute, exhibit, broadcast, or otherwise exploit the User Submissions, in whole or in part, in any form, media or technology, now known or hereafter developed including, without limitation, broadcast and cable television, radio, mobile transmission, and the Internet, for any purpose whatsoever including, without limitation, advertising, promotion, entertainment or commercial purposes, without any payment to or further authorization by you. This license includes the right to host, index, cache, distribute, and tag any User Submissions, as well as the right to sublicense User Submissions to third parties, including other users, for use on other media or platforms known or hereinafter developed, such as for use on mobile phones, or in video, music, or software programs. Under the license granted herein, UpWest shall be free to use or disclose any ideas or concepts contained in the User Submissions without further attribution, compensation or notice to you. You acknowledge that, by acceptance of a User Submission, UpWest does not waive any rights to use similar or related ideas previously known to UpWest, or developed by its employees, or obtained from sources other than you. UpWest does not endorse any User Submissions or any opinion, recommendation, or advice expressed therein. USER SUBMISSIONS POSTED TO THE SERVICES ARE NOT EDITED BY UPWEST AND ARE THE VIEWS/OPINIONS OF THE INDIVIDUAL USER. USER SUBMISSIONS DO NOT REFLECT THE VIEWS OF UPWEST IN ANY MANNER. UpWest reserves the right to determine in its sole discretion whether User Submissions are appropriate and comply with these Terms, including without limitation, the Prohibited Uses (as defined below) of Services and other applicable rules and restrictions and whether or not to allow the uploading and/or removal of any User Submissions.
In connection with User Submissions, you affirm, represent, and warrant to UpWest that: (i) the content of your User Submission(s) is original (no lifts from previously published material, including music); (ii) you own all right, title and interest to your User Submission(s) and have the sole and exclusive right (including all intellectual property and other proprietary rights embodied by the User Submissions or represented by such User Submissions) to license all of the rights therein to UpWest as set forth in the license granted above; (iii) use of your User Submission(s) on the Services or otherwise by UpWest, in whole or in part, will not infringe upon the rights of any third party including, without limitation, any intellectual property or privacy rights; and (iv) you have obtained written permission from any other person named, photographed or otherwise depicted or whose voice is used in your User Submission(s) which will allow UpWest to utilize the User Submission(s) without compensation or objection. For clarity, UpWest obtains the license above, but does not claim ownership of your User Submissions.PROHIBITED USES OF THE SERVICES:
You shall not post, transmit, redistribute, upload, or promote any communications, content or materials that (a) contain corrupted files, viruses, or any other similar software files, the intent of which is to damage the operation of another's computer; (b) are unlawful, threatening, harassing, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, sexually explicit, hateful, profane, indecent, racially or ethnically derogatory, or otherwise objectionable; (c) contain chain letters or pyramid schemes; (d) contain any unsolicited advertising, promotional materials, or other forms of solicitation to other users, individuals or entities; (e) impersonate any person, business or entity, including our company and our employees and agents; (f) encourage conduct that would constitute a criminal offense; (g) give rise to civil liability; (h) otherwise violate any law; or (i) in doing so, amounts to any conduct that, in the judgment of UpWest, restricts, impairs, interferes or inhibits any other user from using or enjoying the Services and/or our related services and products (“Prohibited Uses”). Notwithstanding the foregoing, these Terms in no way limit your rights under the Consumer Review Fairness Act of 2016 (H.R. 5111).
You shall not circumvent, disable or otherwise interfere with security-related features of the Services, including, without limitation, any features that enforce limitations on the use of promo codes, the Services or Materials. You shall not circumvent, disable or otherwise interfere with security-related features of the Services that prevent use, restrict use, or restrict copying of any content. You shall not attempt to, or interfere with, the proper working of the Services or impair, overburden, or disable the same.
You understand and agree that you have no ownership rights to any Account you may have with us, or other access to the Services or features therein. UpWest may cancel your Account(s) and delete all User Submissions associated with your Account(s) at any time, and without notice, including without limitation if UpWest deems that you have violated these Terms, the law, or for any other reason. UpWest assumes no liability for any information removed from our Services, and reserves the right to permanently restrict access to the Services or an Account. You agree that UpWest shall not be liable to you or any third party for any termination or suspension of your Account(s) or for blocking your access to the Services.NOTICE OF COPYRIGHT INFRINGEMENT:
UpWest does not permit copyright infringing activities on the Services, and UpWest may remove any User Submissions or Materials if properly informed that any such User Submissions or Materials infringe on another’s copyright. UpWest will terminate a user's ability to submit User Submissions if, under appropriate circumstances, such user is determined to be a repeat infringer. If you are a copyright owner or an agent thereof and believe that any Material (including any User Submission) infringes upon your copyrights, you may notify UpWest by providing the following information in writing:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive copyright right that is allegedly infringed;
- Identification of the location where the original or an authorized copy of the copyrighted work exists;
- Identification of the Material (including a User Submission) that is claimed to be infringing and a description of the infringing activity and information reasonably sufficient to permit UpWest to locate the same;
- Information reasonably sufficient to permit UpWest to contact you, such as an address, telephone number, and, if available, an email address;
- A statement that you have a good faith belief that use of the Material (including a User Submission) in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive copyright right that is allegedly infringed.
Our agent for notice of claims of copyright infringement can be reached as follows: Attn.: LEGAL, UW, LLC, 750 Cross Point Rd. Suite V, Gahanna, Ohio 43230.
You acknowledge that if you fail to comply with all of the requirements above, your notice may not be valid.PRODUCTS AND ORDERS:
All features, specifications, products and prices of products and services described on the Services are subject to change at any time without notice. From time to time there may be information on the Services that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, and availability. We make no representation as to the completeness, accuracy, or currency of any information on the Services. We reserve the right to make changes in information about price, description, or availability without notice. If any information on the Services or your order is inaccurate, we reserve the right, without prior notice, to limit the order quantity on any product, refuse service, and/or cancel orders at any time without prior notice (including after you have submitted your order). We have made every effort to display as accurately as possible the colors of our products that appear on the Services; however, the actual color you will see will depend on your device, and we cannot guarantee that your device will accurately display our colors. The inclusion of any products or services on the Services does not imply or warrant that these products or services will be available over the internet any particular time. ANY PRODUCTS AND/OR SERVICES DESCRIBED ON THE SERVICES ARE OFFERED IN JURISDICTIONS WHERE THEY MAY BE LEGALLY OFFERED FOR SALE. THE INFORMATION ON THE SERVICES IS NOT AN OFFER OR SOLICITATION BY ANYONE IN ANYONE IN ANY JURISDICTION IN WHICH AN OFFER OR SOLICITATION CANNOT LEGALLY BE MADE, OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE A SOLICITATION.
For information regarding our Returns Policy, please visit: upwest.comUSE OF ACCOUNTS AND CREDIT CARDS:
Certain areas of the Site require registration or otherwise ask you to provide information to participate in certain features or access certain content. If you elect not to provide such information, you may not be able to access certain content or participate in certain features of the Site, or any features at all. If you create any Account on the Site or otherwise submit information to us, you must complete the specified process by providing us with current, complete, and accurate information as requested by the applicable registration form. It is your responsibility to maintain the currency, completeness, and accuracy of your registration data, and any loss caused by your failure to do so is your responsibility. During the registration process, you may be asked to enter your name and valid email address and choose a password. It is entirely your responsibility to maintain the confidentiality of your password and Account(s). Additionally, you are entirely responsible for any and all activities that occur under your Account(s). You agree to notify UpWest immediately of any unauthorized use of any of your Accounts. You further agree not to email, post, or otherwise disseminate any user ID, password, or other information which provides you access to the Site. UpWest is not liable for any loss that you may incur as a result of someone else using your password or Account(s), either with or without your knowledge, and is not responsible for any delay in shutting down your Account(s) after you have reported a breach of security to us.
If you wish to purchase any product or service made available through the Services, you may be asked to supply certain information relevant to your transaction, including without limitation your credit card number, the expiration date of your credit card, your billing address, and your shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION. By submitting such information, you grant us or the third party collecting that information on our behalf the right to provide such information to third parties for purposes of facilitating the completion of transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any transaction. YOU UNDERSTAND AND AGREE THAT YOU ARE CHARGED AT THE TIME YOU PLACE YOUR ORDER FOR PRODUCTS OR SERVICES. YOU FURTHER UNDERSTAND AND AGREE THAT THE TRANSACTION FOR THE PURCHASE OF PRODUCTS OR SERVICES IS FINAL AND COMPLETE AT THE TIME YOU ARE CHARGED. You agree to pay all charges incurred by you, on your behalf, or by your Account(s) through the Services, at the price in effect when such charges are incurred. You are solely responsible for any taxes applicable to your transaction.LINKING:
Periodically, links may be established from this Services to one or more external sites, services, platforms, or resources operated by unrelated third parties (the “Third Party Services”). These links are provided for your convenience only. In addition, certain Third Party Services also may provide links to the Services. These links should not necessarily be deemed to imply that UpWest endorses the Third Party Services or any content therein.
UpWest does not control and is not responsible or liable for any Third Party Services or any content, advertising, products, or other materials on or available from such Third Party Services. Access to any Third Party Services is at your own risk and UpWest will have no liability arising out of or related to such Third Party Services and/or their content or for any damages or lossDISCLAIMER:
THE SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE WITH RESPECT TO THE SERVICES, OR ANY INFORMATION OR SOFTWARE THEREIN. Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimer may not apply to you.LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL UPWEST BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (COLLECTIVELY, “DAMAGES”) THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICES (INCLUDING WITHOUT LIMITATION THE SITE OR THE PROGRAM), NOR SHALL UPWEST BE RESPONSIBLE FOR ANY DAMAGES WHATSOEVER THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE WHETHER OR NOT CAUSED BY EVENTS BEYOND UPWEST’S REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS LINE FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO THE SERVICES’ RECORDS, SITES, OR PROGRAMS. UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO A NEGLIGENT ACT, WILL UPWEST OR ITS AFFILIATES OR AGENTS BE LIABLE FOR ANY DAMAGE OF ANY KIND THAT RESULTS FROM THE USE OF, OR THE INABILITY TO USE, THE SERVICES, EVEN IF UPWEST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES; AS A RESULT, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, AND THE FOREGOING PARAGRAPH SHALL NOT APPLY TO A RESIDENT OF NEW JERSEY TO THE EXTENT DAMAGES TO SUCH NEW JERSEY RESIDENT ARE THE RESULT OF UPWEST’S NEGLIGENT, FRAUDULENT OR RECKLESS ACT(S) OR INTENTIONAL MISCONDUCT. DISPUTES WITH UPWEST AND AGREEMENT TO ARBITRATE:
Arbitration Provision: You each agree that any dispute, claim, or controversy arising from or relating to the Services or these Terms shall be resolved by individual binding arbitration, and not through litigation, unless the claim is properly filed in a small claims court on an individual basis. The arbitrator's authority to resolve claims and make awards is limited to claims between you and us alone. Furthermore, claims brought by you against us, or by us against you, may not be joined or consolidated in arbitration with claims brought by or against someone other than you, unless agreed to in writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. THIS MEANS THAT NEITHER OF US WILL HAVE THE RIGHT TO FILE OR PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE ACTION RELATING TO THE SITE, AND THAT ANY ARBITRATION PROCEEDINGS WILL BE LIMITED TO THE CLAIMS BETWEEN YOU AND US. BOTH YOU AND WE ARE GIVING UP ANY RIGHT YOU AND WE MAY HAVE HAD TO A JURY TRIAL, AND ALL OTHER RIGHTS THAT YOU OR WE WOULD HAVE IN COURT THAT ARE NOT AVAILABLE IN ARBITRATION.
This Arbitration Provision is intended to apply as broadly as possible, and to include all parties and claims that would be included in a case brought in court. Thus, this Arbitration Provision also requires arbitration as to any other corporate or natural persons who are parties to the claim, such as our corporate affiliates and vendors, and members of your family. This Arbitration Provision also applies to claims of every kind and nature, including but not limited to counterclaims, cross-claims and third-party claims, and claims based upon torts, statutes, regulations, common law and equity. However, any dispute over the validity, enforceability or scope of this Arbitration Provision shall be decided by a court, not an arbitrator.
You or we may commence an arbitration proceeding by following the rules then in effect for either JAMS or the American Arbitration Association (AAA), as selected by the party commencing an arbitration. For a copy of the rules, to file a claim or for other information, contact either JAMS (jamsadr.com or 1-800-352-5267) or AAA (adr.org or 1-800-778-7879). In addition to JAMS and AAA, claims may be referred to any other arbitration organization that is mutually agreed upon in writing by you and us, or to an arbitration organization or arbitrator(s) appointed pursuant to § 5 of the Federal Arbitration Act as it may be amended (FAA), provided that any such organization and arbitrator(s) will enforce the terms of this Arbitration Provision. This Arbitration Provision is made concerning transactions involving interstate commerce and shall be governed by the FAA. If there is a conflict between the applicable arbitration rules and these Terms, these Terms shall govern. The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statutes of limitations, shall honor claims of privilege recognized at law, and, at the timely request of either party, shall provide a brief written explanation of the basis for the decision. The arbitration proceeding shall not be governed by any federal or state rules of civil procedure or rules of evidence. The arbitrator shall take reasonable steps to preserve privacy and confidentiality.
If there is an in-person arbitration hearing, it shall take place in the federal judicial district that is closest to your residence. If the nearest federal judicial district to your residence is more than 50 miles away from your residence, you may elect to conduct the arbitration by telephone or at a location in your county of residence.
You will be responsible for paying your share, if any, of arbitration fees, but only up to the amount of filing fees you would have paid to file a claim in the state or federal court closest to your residence. We will be responsible for any additional arbitration fees, even if we win the arbitration. In a dispute involving $10,000 or less, you may choose to have the arbitration conducted by telephone, based on written submissions from the parties, or in person according to the JAMS or AAA rules.
This Arbitration Provision shall survive termination of these Terms and/or the Services or your use of the Services and any bankruptcy by you or us. If any portion of this Arbitration Provision is deemed invalid or unenforceable, it shall not invalidate the remaining portions of this Arbitration Provision; provided, however, that the entire Arbitration Provision shall be invalidated if the requirement of arbitration solely on an individual basis is deemed invalid or unenforceable. If a court decides that the entirety of this Arbitration Provision is invalid or unenforceable, the remainder of the Terms shall still apply.
You may opt out of this agreement to arbitrate by notifying UpWest in writing within 30 days of the date that you first became subject to this arbitration provision. To opt-out, mail a letter that includes your name, address, and phone number, and states your decision to opt-out of the arbitration provision to: UW, LLC, Attention: Legal Department - Arbitration Opt-out, 750 Cross Point Rd., Suite V, Gahanna, Ohio 43230.REVISIONS:
UpWest may terminate, change, suspend or discontinue any aspect of these Services, including the availability of any features of the Services, at any time and without notice. UpWest also reserves the right, at its sole discretion, to change, modify, add or remove any portion of these Terms in whole or in part, at any time and without notice. UpWest may terminate the authorization, rights and license given above at any time and without notice. Your continued use of this Services after any changes to these Terms are posted will be considered acceptance of those changes.MISCELLANEOUS:
These Terms and the Services are governed by U.S. and Ohio law and are subject to all applicable federal, state, and local laws and regulations. All issues and questions concerning the construction, validity, interpretation and enforceability of these Terms, or the rights and obligations of you and UpWest in connection with the Services, shall be governed by, and construed in accordance with, the laws of the State of Ohio, U.S.A., without giving effect to the conflict of laws rules thereof, and any matters or proceedings which are not subject to arbitration as set forth above and/or for entering any judgment on an arbitration award, shall take place in the federal, state and local courts located in Columbus, Ohio.
© 2019 UW, LLC. All rights reserved.