UpNest allows users to locate and evaluate proposals from independent third-party real estate agents. Users agree to supply UpNest with information about themselves and the property they want to sell. UpNest will use this information within UpNest and will provide certain details on an anonymous or non-anonymous basis depending on the UpNest service to third parties who are, in most cases, appropriate members of its real estate agent network. Users may also agree to have the information he/she has supplied to UpNest forwarded to real estate or other third-party professionals referred by UpNest. As UpNest uses email, on a regular basis, to provide UpNest services, all UpNest users must consent to receive email from UpNest to register for UpNest services. Users also agree to receive calls and texts from UpNest when using UpNest’s services. UpNest users will also be required to consent to receive emails from third parties if the UpNest service requested requires services from a third parties (for example, a local real estate agent).
UpNest refers real estate agents to users, but UpNest does not engage in actual real estate broker services. Real estate brokerage activities are performed by local real estate agents that have been referred to you by UpNest. The terms of any agreement between a real estate agent and users are not endorsed, recommended or otherwise known to or by UpNest.
UpNest may from time to time offer eligible Users promotional opportunities to incentivize use of UpNest’s services within a particular time frame. These opportunities may include but are not limited to discounts, rebates, gift certificates, points or other incentives that are only available to Users who use a UpNest affiliated real estate agent to buy or sell a home. User eligibility for a particular promotion will be defined in the terms of each promotion. Not all users may be eligible to receive all promotional opportunities.
THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
The Services are offered and available to users who are 18 years of age or older and reside in the United States or any of its territories or possessions. By using the Services, you represent and warrant that you are of legal age to form a binding contract with UpNest and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Services.
We are pledged to the letter and spirit of U.S. policy for the achievement of equal housing opportunity throughout the United States. We encourage and support an affirmative advertising and marketing program in which there are no barriers to obtaining housing because of race, color, religion, sex, handicap, familial status, or national origin.
We reserve the right to withdraw or amend the Services, and any service or material we provide on the Services, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Services, or the entire Services, to users, including registered users.
You are responsible for both:
- Making all arrangements necessary for you to have access to the Services.
If you choose, or are provided with, a username, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Services or portions of the Services using your username, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
You may cancel your account and membership to the Services at any time for any reason by delivering a written notice by email to firstname.lastname@example.org with the subject line “Membership Termination Request.”
By completing your registration with UpNest.com as a potential home buyer/seller, you agree that:
- you are of legal age and are otherwise capable of forming a legally binding contract;
- you are interested in buying and selling property located in the United States of America;
- UpNest may request (and you agree to provide promptly), receive, copy and review your real property transaction and/or settlement documents and you agree to respond to requests for updates involving any contact with a real estate agent introduced by UpNest;
- you acknowledge that UpNest recommends your independent use of all appropriate government, public, consumer and other agencies or sources to verify a real estate agent’s license status and background as UpNest.com, makes no representations and/or warranties about any real estate agent that may use the UpNest service;
- you do not have an exclusive contractual or other arrangement with any real estate agent;
- you represent that you are not licensed as a real estate agent or broker;
- you agree to be contacted by UpNest via email or other means as described herein, and by third parties for services you have requested; and,
- as a seller (if applicable), you are not bound to accept any of the proposals submitted. Proposals are not binding offers and are not intended to create a contractual or agency relationship between you and the real estate agent.
If required by the terms of the UpNest service requested by User, you authorize UpNest to forward your information to its network of real estate agents according to the terms of the UpNest service that you use.
Any endorsements posted by a real estate agent through the UpNest customer review program are the sole responsibility of the real estate agents. UpNest disclaims any liability arising from and the accuracy of any endorsements posted by real estate agents. It is your responsibility as a buyer or seller to evaluate the nature of any endorsement posted by any real estate agent and to be aware that endorsements might not reflect the actual quality of service that you may receive from a real estate agent.
UpNest offers services targeted to real estate agents. To receive these services, real estate agents must accurately complete a registration for a desired service. Real estate agents agree to obtain any required broker approval prior to participation in any UpNest service, and be registering with UpNest, you expressly represent and warrant that all such permissions have been obtained. Your registration with UpNest and/or use of UpNest’s services constitutes your agreement to these Terms of Service.
A real estate agent who signs up and submits proposals on UpNest agrees to pay a referral fee as stated by the terms and conditions of the UpNest Referral Agreement, available at: https://www.upnest.com/UpNestInc_Client_Referral_Agreement.pdf. In the event that the agent’s broker refuses to pay the referral fee, the registered real estate agents will be liable for the entire referral fee and any collection fees.
By completing your registration with the Services as a real estate agent, you agree that:
- You are of legal age and are otherwise capable of forming a legally binding contract; and have obtained all necessary permissions within your business (if applicable) to participate in the UpNest Services;
- You are an individual person (not a company or other association);
- All information you submit to UpNest or pursuant to a UpNest service is accurate and complete and that you will maintain and promptly update such profile, proposal(s), bid(s), endorsement(s) or other information supplied to UpNest or to users to ensure accuracy at all times;
- You agree to be contacted via email, phone or text by UpNest, and third parties if relevant, regarding UpNest’s services;
- You have acquired and will maintain appropriate insurance coverage and have complied with all real estate licensing and regulatory requirements applicable to real estate agents in the areas for which you have requested UpNest service;
- You will not use or attempt to use any facility provided by UpNest wholly or partly in order to provide you with Information concerning the commissions, fees, prices, or other terms offered by other real estate agents;
- You will not refer UpNest supplied referrals to any other person; and,
- You have secured and will maintain any required supervising broker’s authorization and payment of a fee that will be incurred by virtue of your use of this UpNest service, if you are a licensed real estate salesperson, broker associate or other non-supervising broker real estate agent legally permitted to conduct or participate in certain real property transactions in your state of residence or employment but subject to broker oversight.
You hereby grant UpNest permission to email or display your Profile and such other information as may be supplied by you to UpNest on or from the Services and such other partner and affiliate websites as UpNest shall deem advisable in its sole determination for marketing purposes.
If you choose to use the UpNest photography service for your magazine style profile, you recognize that UpNest holds all right, title, and interest in and copyright rights to the resulting images as a work for hire under our contract with our photographers.
Real estate agent will make best efforts to follow up on all referrals generated through the Services, thus reinforcing UpNest’s and its partners’ reputations. The real estate agent will take commercially reasonable efforts to respond to each referral within eight (8) hours or let UpNest know within that time frame of their inability to meet this minimum service standard. If the real estate agent does not meet this service standard, UpNest may reassign, in its sole discretion, any unserviced referrals to another real estate agent. The real estate agent may not redistribute or resell any UpNest referrals without prior written permission from UpNest. Real estate agent acknowledges that not all referrals will result in benefit to the real estate agent, and that ongoing cultivation and prospecting of these referrals may be required. Real estate agent realizes that referrals received through the Services may be consumers who have previously used and/or are currently using other Internet real estate sites and services, including but not limited to UpNest, to help them in the home selling and/or buying process.
- Your computer or mobile device may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials;
- You may store files that are automatically cached by your Web browser for display enhancement purposes;
- You may print or download one copy of a reasonable number of pages of the Site and one copy of the Mobile App for your own personal, non-commercial use and not for further reproduction, publication, or distribution;
- If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications; and,
- If we provide social media features with certain content, you may take such actions as are enabled by such features.
You must not:
- Modify copies of any materials from this Services;
- Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text; or,
- Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.
You must not access or use for any commercial purposes any part of the Services or any other services or materials available through the Services.
If you wish to make any use of material on the Services other than that set out in this section, please address your request with the subject line “Material License Inquiry” to: email@example.com.
- to modify, adapt, translate, or reverse engineer any portion of the Services;
- in any way that violates any applicable federal, state, local, or foreign law or governmental regulation (including, without limitation, laws regarding the export of data or software to or from the United States or other countries) or for any fraudulent or malicious purposes, or to solicit any such activity;
- to attempt to gain unauthorized access to any accounts, features, systems, or networks through hacking, password mining, or other means;
- for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise;
- to transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail,” “chain letter,” “spam,” or any other solicitation or commercial purposes;
- to impersonate or attempt to impersonate UpNest, an UpNest employee, another user, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing); or,
- to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm UpNest or users of the Services, or expose them to liability.
Additionally, you agree not to:
- use the Services in any manner that could disable, overburden, damage, or impair the Services or interfere with any other party’s use of the Services, including their ability to engage in real time activities of the Services;
- use any “deep-link,” “page-scrape,” robot, spider, or other automatic device, program, process, algorithm, methodology, or means to: (i) access, acquire, copy, or monitor any portion of the Services; (ii) reproduce or circumvent the navigational structure or presentation of the Services; or, (iii) obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through the Services;
- frame or mirror any portion of feature of the Services, forge headers, or otherwise manipulate identifiers related to the Services or any portion thereof;
- use any device, software, or routine to interfere or attempt to interfere with the proper working of the Services;
- introduce or transmit any viruses, Trojan horses, worms, logic bombs, time bombs, cancelbots, corrupted files, or other material that is malicious or technologically harmful;
- attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, the server on which the Services is stored, or any server, computer, or database connected to the Services;
- attack the Services via a denial-of-service attack or a distributed denial-of-service attack;
- circumvent or attempt to circumvent any security or authentication measures implemented by or on behalf of UpNest;
- otherwise attempt to interfere with the proper working of the Services; or,
- violate, infringe, or misappropriate the intellectual property, publicity, privacy, or other proprietary rights of UpNest, its parents, affiliates, or any other person or entity.
The Services may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, and/or other interactive features (collectively, "Interactive Services") that allow users to post, submit, publish, display, or transmit to other users or other persons (hereinafter, "Post") content or materials (collectively, "User Contributions") on or through the Services. Except as described herein, UpNest does not endorse the accuracy or reliability of any advice, opinion, statement, or information Posted by a user via the Interactive Services.
Any User Contribution you Post to the Services will be considered non-confidential and non-proprietary and may become public. You should not include any information in your User Contribution that you do not want other parties to see or use. By providing any User Contribution on or through the Services, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, disclose, copy, publicly perform, display, transmit, distribute, translate, reformat, incorporate, and otherwise use your User Contribution, along with your name, photograph, voice, likeness, and other information, content, or materials embodied therein, in whole or in part, and create derivative works therefrom, in any media now known or hereafter developed, and for any and all commercial or non-commercial purposes without compensation to you or anyone else. You also permit any user to access, display, view, store, and reproduce, for personal use only, your User Contribution as posted by us. UpNest may, but shall not be obligated to, in our sole discretion, post any User Submission on the Services and identify you as the submitting party.
You represent and warrant that:
- You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns;
- Your User Contributions are accurate, current, and complete;
- Your User Contributions do not infringe or misappropriate any copyright, trademark, trade secret, patent, or other intellectual property right of any third party or violate any other rights of third parties including, but not limited to, any rights of privacy or publicity or any contractual right or obligation;
- Your User Contributions and your use of the Services shall not violate any applicable law, rule, or regulation, including, without limitation, any applicable advertising or fair housing laws or regulations, or cause injury to any person; and,
User Contributions may also include reviews or testimonials about the Services, UpNest, and/or its products and services. You agree that any statements that you make about us, the Services, or any of our products or services in any User Contribution that you make accurately reflects your personal beliefs and experiences with us and our Services, products, and/or services, that any opinions submitted are true to the best of your knowledge, and are made of your own free will.
You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not UpNest, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.
We are not responsible or liable to any third party for the content or accuracy of any User Contributions Posted by you or any other user of the Services.
We have the right to:
- Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
- Disclose your identity or other information about you to any third party who claims that material Posted by you violates their rights, including their intellectual property rights or their right to privacy.
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.
Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone Posting any materials on or through the Services. YOU WAIVE AND HOLD HARMLESS UPNEST AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
However, we do not undertake to review all material before it is Posted on the Services and cannot ensure prompt removal of objectionable material after it has been Posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
These content standards apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations and must be accurate and complete. Without limiting the foregoing, User Contributions must not:
- Contain any material that is knowingly or intentionally false, defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable;
- Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
- Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person;
- Be likely to deceive any person;
- Promote any illegal activity, or advocate, promote, or assist any unlawful act;
- Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person;
- Impersonate any person, or misrepresent your identity or affiliation with any person or organization;
- Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising; or,
- Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from this Services infringe your copyright, you may request removal of those materials (or access to them) from the Services by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) ("DMCA"), the written notice (the "DMCA Notice") must include substantially the following:
- Your physical or electronic signature;
- Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on or through the Services, a representative list of such works. For example, you may provide the title of the work, any ISBN number, or copyright registration numbers. You may also use URLs where the original copyrighted text appears.
- Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material. This requires that you provide any search query that you used to locate allegedly infringing content, and the URL for each allegedly infringing search result.
- Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
- A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
- Include the statement: “I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.”
- Include the following statement, under penalty of perjury: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”
Our designated copyright agent to receive DMCA Notices is:
ATTN: DMCA Compliance
3 E 3rd Ave
San Mateo, CA 94401
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective. Please be aware that if you knowingly materially misrepresent that material or activity on or through the Services is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.
The information presented on or through the Services is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Services, or by anyone who may be informed of any of the Service’s contents.
This Services may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by UpNest, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of UpNest. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
We may update the content on the Services from time to time, but the Service’s content is not necessarily complete or up to date. Any of the material on the Services may be out of date at any given time, and we are under no obligation to update such material.
You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent, which we may (but are not required to) provide to you be email or other electronic communication.
The Services may provide certain social media features that enable you to:
- Link from your own or certain third-party websites to certain content on the Services.
- Send emails or other communications with certain content, or links to certain content, on the Services.
- Cause limited portions of content on the Services to be displayed or appear to be displayed on your own or certain third-party websites.
You may use these features solely as they are provided by us, and solely with respect to the content they are displayed with, and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:
You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice.
We may disable all or any social media features and any links at any time without notice in our discretion.
You understand and agree that the real estate agents and others who appear on the Services or who may be referred by UpNest are not employed by UpNest. UpNest is not responsible or liable for any acts or omissions created or performed by these third parties.
In order to use the Services made available through the Mobile App, you must have a compatible mobile device. We do not warrant that the Mobile App will be compatible with your mobile device.
The Mobile App may automatically download and install updates from time to time or require the downloading and installation of updates or new versions for continued use. You acknowledge that in some instances updates and/or new versions may reduce or remove features and functionality in prior versions of the Mobile.
If the Services contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to the Services, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
UpNest offers an SMS messaging service. You may choose to opt-in to our SMS messaging service at your own discretion, and you may opt-out at any time. We will communicate with you via SMS for the purposes of service alerts and notifications. We may also send promotional messages. Participating carriers include AT&T, Boost Mobile, T-Mobile, Metro PCS, Verizon Wireless, Sprint, U.S. Cellular, Nextel, and Virgin Mobile. Carriers are not liable for delayed or undelivered messages. T-Mobile is not liable for delayed or undelivered messages. As always, message and data rates may apply. You will receive an average of 5 messages per week, but we may occasionally exceed this number in certain circumstances. If you have any questions about your text plan or data plan, please contact your wireless provider. You can cancel the SMS service at any time. To cancel, text "STOP" to 89669. We will respond with a single SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. You may, at any time, text "HELP" to 89669 for a brief help message. We will respond with instructions on how to use our service as well as how to unsubscribe. You may also contact UpNest support at: +1 800-692-5010 or email us at firstname.lastname@example.org. Users can subscribe to our notifications services while registering an account through the Services or by modifying your notifications preferences in the account settings page.
The owner of the Services is a corporation organized under the laws of the State of Delaware and based in the State of California in the United States. We provide the Services for use only by persons located in the United States. We make no claims that the Services or any of the Service’s content is accessible or appropriate outside of the United States. Access to the Services may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Services will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON THE SERVICES, OR ON ANY WEBSITE LINKED TO THE SERVICES.
YOUR USE OF THE SERVICES, THE SERVICE’S CONTENT, AND ANY OTHER SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES IS AT YOUR OWN RISK. THE SERVICES, THE SERVICE’S CONTENT, AND ANY OTHER SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER UPNEST NOR ANY PERSON ASSOCIATED WITH UPNEST MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER UPNEST NOR ANYONE ASSOCIATED WITH UPNEST REPRESENTS OR WARRANTS THAT THE SERVICES, THE SERVICE’S CONTENT, OR ANY OTHER SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SERVICES OR THE SERVER THAT MAKES THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES OR ANY OTHER SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, UPNEST HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL UPNEST, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES, ANY WEBSITES LINKED TO THE SERVICES, ANY CONTENT ON THE SERVICES OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Any claim or controversy arising out of or relating to the use of the Services or to any acts or omissions for which you may contend UpNest is liable, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination (“Dispute”), shall be finally, and exclusively, settled by arbitration. The arbitration shall be held before one arbitrator under the commercial arbitration rules of the American Arbitration Association (“AAA”) in force at that time. The arbitration shall take place in San Francisco, California. The arbitrator shall be selected pursuant to the AAA rules or from a list of arbitrators provided by UpNest. Filing and other non-award costs will be paid for, in equal shares, by both parties except that the fee to the arbitrator will be paid by the non-prevailing party. To begin the arbitration process, a party must make a written demand. Should any State or Federal law conflict with the above rules for resolving disputes or the AAA rules, such conflicting rules shall be severed from the enforceable rules and the enforceable rules shall survive and control the dispute resolution process. Any gaps left in the process due to severed rules shall be resolved at the discretion of the selected arbitrator.
Any judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction in San Francisco, California. The arbitrators shall not have the power to award damages in connection with any Dispute in excess of actual compensatory damages and shall not multiply actual damages or award consequential, punitive or exemplary damages, and each party irrevocably waives any claim thereto. The agreement to arbitrate shall not be construed as an agreement to the joinder or consolidation of an arbitration under this agreement with arbitration of disputes or claims of any non-party, regardless of the nature of the issues or disputes involved.
THIS AGREEMENT PROVIDES THAT ALL DISPUTES BETWEEN YOU AND UPNEST WILL BE RESOLVED BY BINDING ARBITRATION. YOU THUS GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS. YOUR RIGHTS WILL BE DETERMINED BY NEUTRAL ARBITRATORS AND NOT A JUDGE OR JURY. You are entitled to a fair hearing, but the arbitration procedures are simpler and more limited than rules applicable in court. Arbitrator decisions are enforceable as any court order and are subject to very limited review by a court. By using the Services, you consent to these restrictions.
Should a Dispute arise and should the arbitration provisions herein become inapplicable or unenforceable, or in any instance of any lawsuit between you and UpNest, you agree that jurisdiction over and venue of any suit shall be exclusively in the state and federal courts sitting in San Francisco, California. If either party employs attorneys to enforce any right in connection with any Dispute or lawsuit the prevailing party shall be entitled to recover reasonable attorneys’ fees.
The Services are operated by UpNest, Inc., located at the address listed below. All notices of copyright infringement claims should be sent to the copyright agent designated in our Copyright Infringement Policy, described above. All other feedback, comments, requests for technical support, and other communications relating to the Services should be directed to us using the below contact information:
4824-4215-1380, v. 1