Uplin, LLC (www.uplin.com)
Effective Date: November 1, 2020
Uplin and the Uplin Technology are not intended to be used for or to book Emergency Care. If Emergency Care is Needed, Please Call 9-1-1 or Go To the Nearest Emergency Room Immediately.For purposes of clarity:
1. Use of the Uplin Technology.
This is a contract between you and Uplin. By accepting these Terms, you represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you have not previously been suspended or removed from the Uplin Technology; (c) your registration and your use of the Uplin Technology is in compliance with all applicable laws and regulations; and (d) you are physically located in the United States and within a jurisdiction in which we offer the Uplin Technology, including, without limitation, when utilizing the Uplin Technology to book a Doctor Visit (as defined below). If you are using the Uplin Technology on behalf of another person or an entity, organization, or company (together, “entity”), you represent and warrant that you are an authorized representative of the person or entity and that you have the authority to bind that person or entity to these Terms and you agree to be bound by these Terms on behalf of that person or entity.
2. Provider Services.
In some cases, the Uplin Technology (or the Provider services available through the Uplin Technology) may not be available or the most appropriate way for you to seek medical care and treatment. In other words, the Provider may not 3treat your condition ... or you are not located in a county or area where a Provider may provide services ... or you may not be old enough to book a Doctor Visit ... or otherwise. To assist you in determining whether the Uplin Technology is a fit for your needs, we may ask a series of initial questions during registration, including identifying your location (to make certain that there are Providers in your area); your symptoms (to make certain that the care sought may be properly addressed in your home, office, or hotel setting); your age is appropriate (18 y.o. + unless emancipated); or otherwise. Based on your responses to these questions, it may be determined the Provider services do not meet your stated symptoms or conditions or location or otherwise, and that you are not eligible to utilize the Uplin Technology to book a Provider. In such a case, you will be notified that you will be unable to use the Uplin Technology for that purpose.
3. Uplin Technology License.
Subject to the terms and conditions of these Terms, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to access and use the Uplin Technology solely for your personal, noncommercial use. Uplin reserves all rights not expressly granted herein in the Uplin Technology. Uplin may terminate this license at any time for any or no reason. Even after your license to access and use the Uplin Technology is terminated, these Terms, including all of your obligations under these Terms prior to such termination, will remain in full force and effect and will govern any and all disputes arising out of your access and use of the Uplin Technology.
4. Accounts and Registration.
Subject to your eligibility to use the Uplin Technology and compliance with these Terms, you may access the Uplin Technology. Some features of the Uplin Technology may be available without registration; however, to access most features of the Uplin Technology, you must register for an account. If you open an account on behalf of another person or entity, then “you” includes you and that person or entity. When you register, you will be asked to provide your phone number which will generate a verification code for further access to the Uplin Technology. You are solely responsible for maintaining the confidentiality of your account, relative phone number, and verification codes. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at email@example.com. Furthermore, Uplin reserves the right to take any and all action, as it deems necessary, regarding the security of the Uplin Technology and your account and verification information. Under no circumstances shall any of Uplin or its members, officers, directors, employees, consultants, subsidiaries, agents, or affiliated individuals or entities, including the Providers and/or any professional corporation that employs or contracts with any Providers, be held liable to you for any liabilities or damages resulting from your failure to comply with these Terms, including any failure by you to keep your account and verification codes or other information secure.
5. Prohibited Conduct.
BY USING THE UPLIN TECHNOLOGY, YOU AGREE NOT TO:
1. Use the Uplin Technology to compete with Uplin’s business;
2. Use the Uplin Technology for any illegal purpose or in violation of any applicable law or regulation, including, without limitation, any local, state, national, or international law;
3. Violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property or privacy right;
4. Interfere with security-related features of the Uplin Technology, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Uplin Technology except to the extent that the activity is expressly permitted by applicable law;
5. Interfere with the operation of the Uplin Technology or any user’s use or enjoyment of the Uplin Technology, including by: (i) uploading or otherwise any disseminating virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Uplin Technology; (iii) attempting to collect personal information about another user or third party without consent; (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Uplin Technology; (v) violating any regulation, policy, or procedure of any network, equipment, or server; or (vi) manipulating or otherwise displaying the Uplin Technology by using framing, mirroring, or similar navigational technology;
6. Perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Uplin Technology account without permission, or falsifying your age or date of birth or any other information provided or submitted to the Uplin Technology;
7. Sell or otherwise transfer the access granted under these Terms;
8. Or any other attempt to do any of the acts described in this Section, or assist or permit any person in engaging in any of the acts described in this Section.
2. Mobile Technology
You must be at least (18) years of age to use the Uplin Technology. By accepting these Terms, you represent and warrant to us that: (a) you are at least (18) years of age; (b) you have not previously been suspended or removed from the Uplin Technology; (c) your use of the Uplin Technology is in compliance with all applicable laws and regulations; and (d) all information you provide or submit through the Uplin Technology will be truthful, accurate and complete. If you are using the Uplin Technology on behalf of another person or entity, you represent and warrant that you have the authority to bind that person or entity to these Terms and you agree to be bound by these Terms on behalf of that person or entity.
1. Mobile Technology and Equipment.
In addition to the Uplin website (www.uplin.com), we may make available certain software or technology to access the Uplin Technology via a mobile device, including without exception the Patient Application (“App”), MyUplin Patient Portal, or otherwise (“Mobile Technology”). To use the Mobile Technology, you must have a mobile device that is compatible with the Mobile Technology. Uplin does not provide you with equipment to use the Mobile Technology and does not warrant that the Mobile Technology will be compatible with your mobile device. You may use mobile data in connection with the Mobile Technology and may incur additional charges from your wireless provider for these services. You are responsible for complying with any third-party terms of service and paying all fees charged by third parties to access and use the Mobile Technology, including, without limitation, the payment of all applicable fees associated with any Carrier service plan you use in connection with your use of the Uplin Technology (such as data, SMS, MMS, roaming, and other applicable fees charged by the Carrier). You agree that you are solely responsible for any such charges. Subject to the terms and conditions of this Agreement, Uplin hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Technology on mobile devices owned or leased solely by you, and in accordance with the features made available to you.
You may not: (a) modify, disassemble, decompile, or reverse engineer the Uplin Technology, except to the extent that such restriction is expressly prohibited by law; (b) rent, lease, loan, resell, sublicense, distribute, or otherwise transfer the Uplin Technology to any third party or use the Uplin Technology to provide time sharing or similar services for any third party; (c) make any copies of the Uplin Technology; (d) remove, circumvent, disable, damage, or otherwise interfere with security-related features of the Uplin Technology, features that prevent or restrict use or copying of any content accessible through the Uplin Technology, or features that enforce limitations on use of the Uplin Technology; or (e) delete the copyright and other proprietary rights notices on the Uplin Technology. You acknowledge that Uplin may from time to time issue upgraded versions of the Uplin Technology, and may automatically electronically upgrade the version of the Uplin Technology that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the Uplin Technology may be covered by the applicable open source or third-party license, if any, authorizing use of such code. The foregoing license grant is not a sale of the Uplin Technology or any copy thereof, and Uplin or its third-party partners or suppliers retain all right, title, and interest in the Uplin Technology (and any copy thereof). Any attempt by you to transfer any of the rights, duties, or obligations hereunder, except as expressly provided for in these Terms, is void. Uplin reserves all rights not expressly granted under these Terms. If the Uplin Technology is being acquired on behalf of the United States Government, then the following provision applies. The Uplin Technology will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display, or disclosure of the Uplin Technology and any accompanying documentation by the U.S. Government will be governed solely by these Terms and is prohibited 6except to the extent expressly permitted by these Terms. The Uplin Technology originates in the United States, and is subject to United States export laws and regulations. The Uplin Technology may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Uplin Technology may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Uplin Technology and the Uplin Technology.
3. Uplin’s SMS or Text Messaging Services.
By opening an account through the Uplin Technology, you may receive SMS/text messages from Uplin or the Provider(s) regarding account-related care, alerts and/or offers for Uplin products and services. By setting up an account through the Uplin Technology, you are enrolling in Uplin’s SMS/text messaging service; accordingly, you agree to receive text messages from Uplin or the Provider(s) to your mobile phone number as provided, and you certify that your mobile number provided is true and accurate and that you are authorized to enroll the designated mobile number to receive such text messages. You acknowledge and agree that the text messages may be sent using an automatic telephone dialing system and that standard message and data rates apply. Your consent may be withdrawn by sending us an email requesting the same at firstname.lastname@example.org.
4. Mobile Technology provided from App Store by Apple.
The following applies to any Mobile Technology you acquire from the App Store (“App Store-Sourced Technology”): You acknowledge and agree that these Terms are solely between you and Uplin, not Apple, and that Apple has no responsibility for the App Store-Sourced Technology or content thereof. Your use of the App Store-Sourced Technology must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store-Sourced Technology. In the event of any failure of the App Store-Sourced Technology to conform to any applicable warranty, you may notify Apple, and Apple may refund the purchase price, if any, for the App Store-Sourced Technology to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store-Sourced Technology, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to Uplin as provider of the Uplin Technology. You acknowledge that Apple is not responsible for addressing any claims of or by you or any third party relating to the App Store-Sourced Technology or your possession and/or use of the App Store-Sourced Technology, including, but not limited to: (a) product liability claims; (b) any claim that the App Store-Sourced Technology fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to Uplin as provider of the Uplin Technology. You acknowledge that, in the event of any third-party claim that the App Store-Sourced Technology or your possession and use of that App Store-Sourced Technology infringes that third-party’s intellectual property rights, Uplin, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by these Terms. You and Uplin acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries to these Terms as they relate to your license of the App Store-Sourced Technology, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these 7Terms as they relate to your license of the App Store-Sourced Technology against you as a third-party beneficiary thereof.
5. Mobile Technology provided from Google Play Store.
The following applies to any Mobile Technology you acquire from the Google Play Store (“Google-Sourced Technology”): (a) you acknowledge that these Terms are between you and Uplin only, and not with Google, Inc. (“Google”); (b) your use of Google-Sourced Technology must comply with Google’s then-current Google Play Store Terms of Service; (c) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Technology; (d) Uplin, and not Google, is solely responsible for its Google-Sourced Technology; (e) Google has no obligation or liability to you with respect to Google-Sourced Technology or these Terms; and (f) you acknowledge and agree that Google is a third-party beneficiary to these Terms as it relates to Uplin’s Google-Sourced Technology.
3. Consent to Use of Healthcare Services
As part of the Uplin Technology, you may order a Doctor Visit and concomitant medical services including certain consultations and treatment between you and one or more licensed, local healthcare providers, i.e., the Provider. Neither Uplin nor Uplin Technology is a Provider or the Provider. In order to utilize all of the features of the Uplin Technology, you will be required to review and agree to this consent to use of the Provider services. The consent to use the Provider services is hereby incorporated into these Terms by reference and constitutes a part of these Terms. The Provider services you may receive are not intended to replace a primary care physician relationship or be your permanent medical care provider. Any Doctor Visit that you book through the Uplin Technology will not necessarily give rise to an ongoing treatment relationship with the Provider. You should seek emergency help or follow-up care, and continue to consult with your primary care physician and other healthcare professionals. The Provider may make recommendations or arrangements for follow-up care through other healthcare providers. The Uplin Technology includes such benefits as improved access to healthcare professionals and convenience, namely: A Doctor to come to your home, office, or hotel room, on-demand, in about an hour, on a 24/7/365 basis.
Uplin understands the importance of confidentiality and privacy regarding your information. Please see the Uplin Privacy Notice for a description of how we may collect, use, and disclose your personal information. By accepting these Terms, in addition to any other applicable privacy notices, you acknowledge and agree that you have read and understand the Uplin Privacy Notice.
Likewise, the Providers understand the importance of confidentiality and privacy regarding your information. Please see the Provider Privacy Notice for a description of how they may collect, use, and disclose your personal information. By accepting these Terms, in addition to any other applicable privacy notices, you acknowledge and agree that you have read and understand the Provider Privacy Notice.
5. Pricing, Charges, and Payment Terms.
1. Pricing and Payment Terms
If you book a Doctor Visit through the Uplin Technology, you will pre-pay the Provider through the Uplin Technology; the pricing and payment terms will be set forth in the Uplin Technology; and you will be asked to agree to the pricing and payment terms as set forth in the Uplin Technology or made available to you online prior to making any payment for Provider services. The Providers, through Uplin, may add new services for additional fees and charges and to add or amend fees and charges for existing services. Any change to the pricing or payment terms will be reflected in your Order Summary or Updated Order Summary prior to your making of any payments. The Provider has made arrangements with Uplin whereby Uplin will, among other services, collect payments on behalf of the Provider in exchange for fees and charges which will be subject to a separate agreement between Uplin and the Providers.
2. If the Provider services are rendered and for some reason your pre-payment is declined or denied for any reason, you acknowledge and agree that you will be personally responsible for all fees and charges.
3. If you pay for any part of the Provider services by credit card, you hereby authorize Uplin, or a third party appointed by Uplin, to bill and charge the credit card indicated in your registration information for any fees and other amounts that may become due and payable. Uplin handles the billing and collections matters on behalf of the Providers by and through a PCI Compliant Service Provider.
4. Retaining Credit Card Information
At the time of payment, you will be asked to provide a valid credit card for payment. Your credit card information will, subject to your consent, be securely and safely stored for your account unless you notify us in writing by emailing email@example.com or by deleting the credit card in your MyUplin Patient Portal. You may be asked to provide your security code for further or future charges for additional services you may request.
You may cancel your account as set forth in these Terms; however, once the Provider confirms your requested Visit, there are no refunds for cancellation.
6. Access and Connectivity.
You are responsible for providing and maintaining, at your own risk, option and expense, appropriate software, technology, and hardware capabilities (consistent with any technical, quality, or other requirements described in the Uplin Technology) to enable use of the Uplin Technology. Uplin reserves the right to change the access configuration, including any software, technology, hardware, or other requirements of the Uplin Technology at any time without prior notice.
7. Digital Millennium Copyright Act.
1. DMCA Notification.
We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet Service Providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Uplin Technology, you may contact our Designated Agent at the following address:
625 N. Flagler Drive
West Palm Beach, FL 33401
Any notice alleging that materials hosted by or distributed through the Uplin Technology infringe intellectual property rights must include the following information:
1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
2. a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
3. a description of the material that you claim is infringing and where it is located on the Service;
4. your address, telephone number, and email address;
5. a statement by you that you have a good-faith belief that the use of those materials on the Uplin Technology is not authorized by the copyright owner, its agent, or the law; and
6. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
8. Third-Party Services and Linked Websites.
9. Termination of Use; Discontinuation and Modification of the Uplin Technology.
If you violate any provision of these Terms, your permission from us to use the Uplin Technology will terminate automatically. In addition, Uplin may in its sole discretion terminate your user account on the Uplin Technology or suspend or terminate your access to the Uplin Technology at any time, with or without notice. We also reserve the right to modify or discontinue the Uplin Technology at any time (including by limiting or discontinuing certain features of the Uplin Technology) without notice to you. We will have no liability whatsoever on account of any change to the Uplin Technology or any suspension or termination of your access to or use of the Uplin Technology. You may terminate your account at any time by contacting customer service at firstname.lastname@example.org.
10. Additional Terms.
Your use of the Uplin Technology is subject to all additional terms, policies, rules, or guidelines applicable to the Uplin Technology or certain features of the Uplin Technology that we may post on or link to from the Uplin Technology (the “Additional Terms”), such as end-user license agreements for any downloadable software, technology, or other applications, or rules that are applicable to a particular feature or content on the Uplin Technology. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
11. Modification of these Terms.
We reserve the right, at our sole discretion, to change or update these Terms from time to time. Please check these Terms periodically for changes or updates. Immaterial modifications are effective upon publication. If a change or update to these Terms materially modifies your rights or obligations, we will update the “last updated” date at the top of this page and make reasonable efforts to notify you that material changes have been made to the Terms. Your continued use of the Uplin Technology after any such change or update constitutes your acceptance of the new Terms. If you do not agree to any of these Terms or any future Terms, do not use or access (or continue to access) the Uplin Technology.
12. Ownership; Proprietary Rights.
The Uplin Technology is owned and operated by Uplin, a Delaware Limited Liability Company. The visual interfaces, graphics, names, logos, marks, content (other than User Content), design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Uplin Technology provided by Uplin are protected by intellectual property and other laws. All aspects of the Uplin Technology and all trademarks, service marks, copyrights, patents, and any and all other intellectual property rights and proprietary material related thereto are, and will remain, the exclusive property of Uplin or our third-party licensors. Except as expressly authorized by Uplin, you may not make use of the Uplin Technology. Uplin reserves all rights to the Uplin Technology not granted expressly in these Terms.
13. No Medical Advice.
Uplin by and through the Uplin Technology acts as a technology platform to connect you with Providers who may be available to provide you with certain non-emergency medical care; however, Uplin is not itself a healthcare provider, and the Providers are solely responsible for providing you with any medical care and treatment that you may receive via the Uplin Technology. Uplin does not control or interfere with the practice of medicine by Providers, each of whom is responsible for the professional medical services he or she provides. By accepting these Terms and by using the Uplin Technology, you are entering into a doctor-patient or other health care provider-patient relationship solely with one or more Provider(s) and not with Uplin. The information provided by Uplin as part of the Uplin Technology and through the Uplin Technology is for general informational purposes only. None of the Uplin Technology should be considered medical advice or an endorsement, representation, or warranty that any particular medication or treatment is safe, appropriate, or effective for you.
You agree that you will be responsible for your use of the Uplin Technology, and you agree to defend and indemnify Uplin and its members, officers, directors, employees, consultants, subsidiaries, agents, or affiliated individuals or entities from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of the Uplin Technology; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. Uplin reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with Uplin’s defense(s) of that claim(s).
15. Non-Secure Communications.
Uplin will, to the extent required, comply with federal healthcare privacy and security laws and maintain safeguards to protect the security of your health information. Additionally, the information you provide to your Provider during a medical consultation booked through the Uplin Technology is legally confidential, except for certain legal exceptions as more fully described in the Uplin Privacy Noticeand the Provide Privacy Notice. Uplin devotes considerable effort toward ensuring that your personal information is secure. Information regarding Uplin’s use of health and other personal information is provided in the Uplin Privacy Notice. As part of your use of the Uplin Technology, we will communicate to you via email and text message, including, without limitation, via SMS or text messaging services as set forth in Section 2, supra. Email and text messages are not secure methods of communication and Uplin cannot ensure the security or confidentiality of messages sent by email and/or text message. Information, including personal health information, transmitted by email or text message is not encrypted and could be read by a third party. If you would prefer not to exchange personal health information via email or text message, please notify us at email@example.com.
16. Disclaimers; No Warranties.
WHILE THE UPLIN TECHNOLOGY PROVIDES ACCESS TO CERTAIN PROVIDERS FOR NON-EMERGENCY MEDICAL CARE, UPLIN IS NOT A HEALTHCARE PROVIDER AND CANNOT AND DOES NOT DIAGNOSE OR TREAT YOUR HEALTH CONDITIONS. UPLIN PROVIDES NO ENDORSEMENT, REPRESENTATION OR WARRANTY THAT ANY PARTICULAR MEDICATION OR TREATMENT USED BY THE PROVIDERS IS OR WILL BE SAFE, EFFECTIVE, OR APPROPRIATE FOR YOU. DO NOT USE THE UPLIN TECHNOLOGY FOR MEDICAL EMERGENCIES. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL 9-1-1 (OR THE EQUIVALENT CONTACT NUMBER FOR EMERGENCY SERVICES IN YOUR REGION) OR GO TO THE NEAREST EMERGENCY ROOM IMMEDIATELY.
THE UPLIN TECHNOLOGY AND ALL SYSTEMS AND CONTENT AVAILABLE THROUGH THE UPLIN TECHNOLOGY ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE EXTENT ALLOWED BY LAW, UPLIN DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE UPLIN TECHNOLOGY AND ALL SYSTEMS AND CONTENT AVAILABLE THROUGH THE UPLIN TECHNOLOGY, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. UPLIN DOES NOT WARRANT THAT THE UPLIN TECHNOLOGY OR ANY PORTION OF THE UPLIN TECHNOLOGY, OR ANY SYSTEMS OR CONTENT OFFERED THROUGH THE UPLIN TECHNOLOGY, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE UPLIN TECHNOLOGY OR ANY UPLIN SYSTEM OR CONTENT AVAILABLE THROUGH THE UPLIN TECHNOLOGY WILL CREATE ANY WARRANTY REGARDING ANY OF UPLIN, THE PROVIDERS, OR THE UPLIN TECHNOLOGY THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR ACCESS TO, USE OR MISUSE OF, OR INABILITY TO USE THE UPLIN TECHNOLOGY, YOUR DEALING WITH ANY THIRD PARTY OR PROVIDER, AND ANY UPLIN SYSTEM OR CONTENT AVAILABLE THROUGH THE UPLIN TECHNOLOGY. YOU UNDERSTAND AND AGREE THAT YOU USE THE UPLIN TECHNOLOGY, AND ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN UPLIN SYSTEMS OR CONTENT THROUGH THE UPLIN TECHNOLOGY, AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE UPLIN TECHNOLOGY OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. TO THE EXTENT THAT WE MAY NOT DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED BY LAW.
17. Limitation of Liability.
IN NO EVENT WILL UPLIN BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE UPLIN TECHNOLOGY OR ANY UPLIN SYSTEM OR CONTENT ON THE UPLIN TECHNOLOGY, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY UPLIN ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF UPLIN TO YOU, FOR ALL CLAIMS ARISING OUT OF, OR RELATING TO, THE USE OF OR ANY INABILITY TO USE, ANY PORTION OF THE UPLIN TECHNOLOGY OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO UPLIN FOR ACCESS TO AND USE OF THE SERVICE IN THE TWELVE (12) MONTHS PRIOR TO THE CLAIM; OR (B) ONE THOUSAND U.S. DOLLARS (USD $1,000.00).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. TO THE EXTENT THAT WE MAY NOT LIMIT OUR LIABILITIES, THE EXTENT OF SUCH LIABILITIES WILL BE THE MINIMUM PERMITTED BY LAW.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
These Terms, the consent to use the Uplin Technology, and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Uplin regarding your use of the Uplin Technology. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without Uplin’s prior written consent. Uplin may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect Uplin’s right to require performance at any other time after that, nor will a waiver by Uplin of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Upon termination of these Terms, any provision that by its nature or express terms should survive, will survive.
19. Dispute Resolution and Arbitration.
In the interest of resolving disputes between you and Uplin in the most expedient and cost-effective manner, you and Uplin agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, equity, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND UPLIN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Despite the provisions of Section 19, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Any arbitration between you and Uplin will be governed by Florida law and the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Uplin at firstname.lastname@example.org.
4. Notice; Process.
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (“Notice”). The address for Notice to Uplin is: Uplin, LLC, 625 N. Flagler Drive, Mezzanine Level, West Palm Beach, FL 33401. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Uplin may commence an arbitration proceeding. The parties shall have the ability to take discovery on and exchange relevant information, on a confidential basis, about the dispute. During the arbitration, the amount of any settlement offer made by you or Uplin must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, Uplin will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by the applicable Uplin Entity in settlement of the dispute prior to the arbitrator’s award; or (iii) one thousand U.S. Dollars (USD $1,000). Except as required to comply with law or other requirements, the arbitration proceedings, filings and outcome shall be confidential.
If you commence arbitration in accordance with these Terms, Uplin will reimburse you for your payment of the filing fee, unless your claim is for more than ten thousand U.S. Dollars (USD $10,000), in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Palm Beach County, Florida, but if the claim is for ten thousand U.S. Dollars (USD $10,000) or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a nonappearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Uplin for all monies previously disbursed by Uplin that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
6. No Class Actions.
YOU AND UPLIN AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Uplin agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
If Uplin makes any future change to this arbitration provision (other than a change to Uplin’s address for Notice), you may reject the change by sending us written notice within 30 days of the change to Uplin’s address for Notice, in which case your account with Uplin will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
If Section 19(f) is found to be unenforceable or if the entirety of this Section 19 is found to be unenforceable, then the entirety of this Section 19 will be null and void and, in that case, the parties agree that the exclusive law will be that of Florida; the exclusive jurisdiction will be Palm Beach County, Florida; and the exclusive venue will be Palm Beach County, Florida all of which will govern any action arising out of or related to these Terms.
20. Consent to Electronic Communications.
By using the Uplin Technology, you consent to receiving certain electronic communications from us as further described in the Uplin Privacy Notice and the Provider Privacy Notice. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
21. Contact Information.
The Uplin Technology is offered by Uplin, LLC, located at 635 N. Flagler Drive, Mezzanine Level, West Palm Beach. Florida 33401. You may contact us by sending correspondence to that address or by emailing us email@example.com.