Upaway™ Terms and Conditions
February 18, 2021
The following Terms and Conditions (hereinafter referred to as the “Terms”) between you (referred to as “you”, “your”, “Customer”, or “User(s)”) and Upaway App Inc. (referred to as “Upaway”, “we”, or “our”) describe the specifications on which you may access, register, subscribe, and use our website, https://www.upaway.app/, (the “Website”) or download the Upaway Mobile Application (the “App”, together with the Website referred to as the “Platform”) on the Apple App Store (the “App Store”) including all information, tools, and services available to you, conditioned upon your acceptance of all the Terms, conditions, policies, and notices stated herein.
Upaway is a two-sided marketplace that simplifies the ever-changing consumer travel experience, creates new remote jobs within the travel industry, and revives local economies. The App is available directly to Users through the App Store. By visiting or accessing the Website, purchasing or downloading the App, and or utilizing our services on the Platform (together referred to as our “Services”) you agree to be bound by the following Terms. These Terms apply to each User, including, without limitation, browsers, developers, merchants, vendors, and/or content contributors.
DO NOT USE OUR SERVICES IF YOU A) DO NOT AGREE TO THESE TERMS; OR B) ARE PROHIBITED FROM ACCESSING OR USING THE PLATFORM OR ANY ITS CONTENTS, GOODS, OR SERVICES BY APPLICABLE LAW.
BY USING ANY OF OUR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO ALL THE TERMS HEREIN, THEN YOU MAY NOT USE ANY OF OUR SERVICES.
Any new features or tools, which are added to the Platform, shall also be subject to the Terms outlined herein. You can review the most current version of the Terms at any time on this page. Upaway reserves the right to update, change or replace any part of these Terms at any time by posting updates and/or changes to the Platform at our sole discretion. It is your responsibility to check this page periodically for changes. Your continued use of, or access to, our Services following the posting of any changes to these Terms constitutes acceptance of those changes.
1. User Registration
After downloading the App, Users will be required to create an account which will include providing your first name, last name, e-mail address, and payment information (together your “Personal Information”). By downloading the App from the Apple Store, you will be required to input some or all of your Personal Information in order to register.
2. Service Terms
By agreeing to these Terms, or by using any of our Services, you represent that you are at least the age of majority in your state or province of residence. Minors may use our Services under the supervision of their parents or legal guardians who agree to be bound by these Terms on their behalf. If you are a parent or legal guardian agreeing to these Terms on behalf of a minor, then you are fully responsible for his or her use of the Services, including all liabilities.
In addition, all Users must be in good standing and cannot be an individual that has been previously barred from receiving Upaway’s Services under the laws of any applicable jurisdiction.
You may not use our Services for any illegal or unauthorized purpose, nor may you, in using the Services, violate any laws, rules, or regulations in your jurisdiction (including, but not limited to, copyright laws). A breach or violation of any of the Terms will result in an immediate termination of the Services and/or your use of the App.
Upaway reserves the right to refuse Services to anyone, for any reason, at any time at our own discretion. Upaway also reserves the right but does not have the obligation, to pre-screen, refuse and/or delete any content currently available through our Platform. In addition, we reserve the right to remove and/or delete any such content that would violate these Terms or which would otherwise be considered offensive to Users.
3. Travel Disclosures
Although most travel, including travel to international destinations, is completed without incident, travel to certain destinations may involve greater risk than others. Upaway urges Customers to review travel prohibitions, warnings, announcements, and advisories issued by the United States Government prior to booking travel to international destinations. Information on conditions in various countries and the level of risk associated with travel to particular international destinations can be found on the following websites: www.state.gov, www.tsa.gov, www.dot.gov, www.faa.gov, www.cdc.gov, www.treas.gov/ofac, and www.customs.gov.
BY OFFERING FOR SALE TRAVEL TO PARTICULAR INTERNATIONAL DESTINATIONS, UPAWAY DOES NOT REPRESENT OR WARRANT THAT TRAVEL TO SUCH POINTS IS ADVISABLE OR WITHOUT RISK, AND IS NOT LIABLE FOR DAMAGES OR LOSSES THAT MAY RESULT FROM TRAVEL TO SUCH DESTINATIONS.
4. Travel Documents
Customer assumes sole responsibility to independently confirm all documentation requirements for all passport, visa, vaccination, or other entry and/or travel requirements of each destination. Customer assumes sole responsibility for and hereby releases Upaway from any claims or responsibility for any and all damages incurred as a result of Customer’s failure to comply with applicable documentation requirements, including but not limited to the requirement that all Customers procure, and have on their person the proper travel documents at all times. Upaway recommends the Customer consult with the appropriate domestic and foreign governmental agencies for the current document requirements. Any fines, penalties, payments, or expenditure incurred as a result of such documentation not meeting the requirements of government authorities of the destination country will be your sole responsibility.
All Customers departing from the United States of America must be in possession of a valid passport. Customers agree and acknowledge that it is their responsibility to check that their passport is valid for at least 6 months beyond their intended travel time.
Suggested reference materials for passport, visa, health requirements as well as travel advisories:
For US Citizens: http://travel.state.gov
Western Hemisphere Travel Initiative: http://travel.state.gov/travel/cis_pa_tw/cis_pa_tw_2223.html
US State Department Travel Warnings: http://www.travel.state.gov/travel/cis_pa_tw/tw/tw_1764.html
US State Department Travel Alerts: http://www.travel.state.gov/travel/cis_pa_tw/pa/pa_1766.html
US Center for Disease Control for required vaccinations: http://www.cdc.gov/travel
Visa information for US citizens: http://www.travel.state.gov/travel/cis_pa_tw/cis/cis_4965.html
(Examples of countries requiring Visas: Australia, Brazil, China, Egypt, India, Russia, & Turkey)
For Canadian citizens: http://www.ppt.gc.ca
*Note that this is not a comprehensive list of reference sites and is provided solely for your convenience. These sites are owned and operated by third parties who may alter the URL at any time without notice.
5. Booking Accuracy/Legal Names
You are required to immediately review all aspects of your booking with any airline, car rental, hotel, or other booking (together the “Travel Supplier”) to verify (but not limited to): your names, mailing address, e-mail address, telephone number, date of birth, pricing, airfare, arrival/departure airports, accommodations, and organized activities on your booking receipt. Please notify Upaway immediately if any omissions and/or corrections are needed regarding your booking details. You voluntarily assume full & sole responsibility for any and all risks and/or costs involved with failure to report such errors and/or omissions. You are required to verify the accuracy of your LEGAL first and last names. It is mandatory that guest names be identical to your LEGAL first and last names and identical to the names as they appear on booking and travel documents.
6. Health and Special Requirements
It is your responsibility to ensure you are aware of any health requirements, health advisories, or health travel restrictions applicable to your travel destinations and to ensure that you carry all necessary vaccination documentation. Upaway is not responsible for providing you with this information. Travel carriers and local authorities at travel destinations may require specific testing prior to boarding and/or upon arrival at your destination, including, but not limited to, a temperature check as a result of the COVID-19 pandemic. You may be denied entry onto your carrier and/or entry upon arrival at your destination, or be required to self-quarantine at your destination and upon your return to the United States. You must comply with local government regulations. Additional costs are your responsibility. Check with the Center for Disease Control and Prevention for current information prior to and during your travel. www.cdc.gov.
7. Insecticide Notice
Some countries require insecticide spraying of aircraft prior to a flight or while you are on the aircraft. Federal law requires that we refer you to the Department of Transport disinfection website. (https://www.transportation.gov/airconsumer/spray).
8. Hazardous Materials
United States of America (USA) federal law prohibits passengers from bringing hazardous materials onto an aircraft. USA federal law forbids the carriage of hazardous materials aboard aircraft in a passenger’s luggage or on the passenger’s person. A violation can result in five years’ imprisonment and penalties of $250,000 or more (49 U.S.C. 5124). Hazardous materials include explosives, compressed gases, flammable liquids and solids, oxidizers, poisons, corrosives and radio- active materials. Examples: Paints, lighter fluid, fireworks, tear gases, oxygen bottles, and radio-pharmaceuticals.
There are special exceptions for small quantities (up to 70 ounces total) of medicinal and toilet articles carried in the passenger’s luggage and certain smoking materials carried on the passenger’s person. For further information, each passenger should contact the relevant airline representative(s) on their itinerary. Restrictions on hazardous materials are listed http://www.tsa.gov/traveler-information/prohibited-items.
Upaway waives all liability and responsibility if your travel is impacted by the airline due to any Department of Transportation (DOT) violation or the rules of the airline.
9. Travel Insurance
Travel Insurance protection is STRONGLY RECOMMENDED. Upaway has a professional responsibility to recommend the purchase of travel protection to protect both you and your travel. The responsibility to purchase Travel Insurance lies solely with you as the Customer and we advise you to do your research and find coverage that best fits your individual needs.
Upaway recommends you purchase the following types of insurance:
Emergency Medical Expenses
Emergency Evacuation/Repatriation of Remains
Baggage & Personal Effects
Baggage Delay & More
By declining our advice to purchase Travel Insurance, you acknowledge and accept liability for any cancellation penalties, damages and/or out–of-pocket expenses incurred. You also acknowledge and accept responsibility for arranging and paying for any treatment in case of a medical emergency while traveling. Please note that if you decline this type of coverage, you have waived your right to this important coverage and your confirmation will note “declined” next to the travel protection section of your confirmation. If you HAVE purchased travel protection, please remember to review your confirmation for accuracy and call us immediately if you believe you have travel protection and your confirmation indicates declined.
10. General Conditions of Use
You acknowledge and agree not to reproduce, export, publish, assign, duplicate, copy, sell, resell, lease, license or exploit the Services, the Platform, or any portion thereof.
Upaway reserves the right, but has no obligation, to modify, update, or discontinue its Services, or any Platform content (or any part thereof), without notice at any time. Upaway shall not be liable to you or to any third party for any modification, price change, suspension, or discontinuance of the Services. Upaway shall not be held responsible if information made available on the Platform is not accurate, complete, or current. For clarity, you are relying on any information at your own risk.
You consent to receiving communications from us, including but not limited to, e-mails, text messages, and/or calls regarding your orders, purchases, updates to our Services, marketing, advertisement, and any other relevant information.
As a User, you acknowledge, understand, and agree that all information, text, data, photographs, messages, tags or any other content, whether it is publicly or privately posted and/or transmitted, is your expressed sole responsibility. Furthermore, you may not use our Services for any illegal or unauthorized purpose, nor may you, in the use of the Services, violate any laws, rules, or regulations in your jurisdiction. You agree not to make use of our Services for the purpose of any harmful or deceitful conduct, including, but not limited to, the following:
Uploading, posting, transmitting or otherwise making available any content that shall be deemed, in our discretion, to be harmful, threatening, abusive, harassing, defamatory, offensive, obscene, pornographic, libelous, or which is hateful, threatening, of otherwise objectionable to any group defined by race, religion, gender, national origin, or sexual orientation, including without limitation to expressions of bigotry, prejudice, racisms, hatred or profanity;
B) Causing harm to minors in any manner whatsoever; and/or
C) Impersonating any individual or entity, or otherwise misrepresenting any affiliation with an individual or entity.
11. Prices and Payments
Unless otherwise noted, the prices for each Service offered shall be predetermined and posted on the Platform under Pricing. This price charged for the Services offered will be the price in effect at the time of purchase and will be set out in your order confirmation, e-mail receipt, or other relevant correspondence. Be advised that taxes and other charges, which may include, but are not limited to: service fees; currency and/or exchange fees; and/or VAT or local taxes may be added to your total cost.
We require you to make all payments online directly within the Platform, via Stripe or other approved electronic means.
Any prices, discounts, and promotions available are subject to change without notice. Our prices are subject to variable and seasonal pricing, both of which are standard practice within the travel industry. This means our prices may vary at any time in accordance with demand, market conditions, and availability.
We may offer promotions, discounts, or sales on our Platform in our sole discretion to certain individuals (“Promotions”). These Promotions may affect the pricing and may be governed by terms and conditions separate from these Terms. If there is a conflict between the terms and conditions for a promotion and these Terms, the terms and conditions specific to that promotion will govern that specific circumstance.
If you do not pay the amounts owed when they are due, or your payment method continuously fails, Upaway may cancel your order and initiate collection procedures. You agree to pay our cost of collection for any overdue payments, including, without limitation to, reasonable attorney’s fees.
12. A La Carte Items and Subscriptions
Upaway offers A La Carte items as well as discounted single, monthly, and annual subscriptions to Users.
By purchasing a Monthly Subscription, you agree to an initial and recurring subscription fee at the then-current subscription rate, and you accept responsibility for all recurring charges until you can cancel your Monthly Subscription. You may cancel your Monthly Subscription at any time, subject to the terms of our cancellation policy as described in these Terms.
By purchasing an Annual Subscription, you agree to an initial pre-payment for one full year of service. After one year and annual thereafter, you will be billed a recurring Annual Subscription renewal fee at the then-current Annual Subscription rate. We will notify you before the renewal fee is billed. You may cancel your Annual Subscription in accordance with Terms.
13. Pausing Accounts
Users can decide to pause their accounts for a duration of thirty (30) days by sending an e-mail to firstname.lastname@example.org. If a User pauses their account, Users will not be charged but their account will remain active.
Users may cancel any purchase made through the App Store according to the Terms herein; however, you will not receive a refund. Upaway is not responsible for errors made by the User during the ordering or cancellation process of the App.
Travel booking cancellations are subject to Travel Supplier’s terms and conditions. Upaway is not responsible for cancellation fees or refund requirements set by the Travel Supplier.
You may cancel your Monthly Subscription at any time by logging into your account and following the cancellation procedures described there. If you cancel your Monthly Subscription, the cancellation will take effect in your next monthly billing cycle. You will not be eligible for a refund for subscription fees paid prior to the month the cancellation takes effect unless otherwise noted.
Annual Subscription fees are nonrefundable. You may cancel your Annual Subscription at any time after you are billed for the then-current year and before you are billed for the next year.
15. Referral Program
Upaway offers a referral program (the “Referral Program”). Any User that engages with the Referral Program is subject to any third party entities Terms and Conditions.
16. Termination or Suspension
You agree that Upaway may, without any prior written notice, immediately suspend, terminate, discontinue and/or limit your account and access to its Platform and the Services at its sole discretion, for any reason, including but not limited to:
Any breach or violation of these Terms or any other incorporated agreement, regulation or guideline;
By way of request from law enforcement or any other governmental agencies;
The discontinuance, alteration, or material modification to the Platform and/or Services, or any part thereof;
Any engagement by you in any fraudulent or illegal activities; and/or
The non-payment of any associated fees that may be owed by you in connection with your account. Furthermore, you herein agree that any and all terminations, suspensions, discontinuances, and or limitations of access for cause shall be made at our sole discretion and that we shall not be liable to you or any other third party with regards to the termination of your account, associated e-mail address and/or access to our Platform or Services.
17. Accuracy, Completeness, and Timeliness of Information
Upaway shall not be held responsible if information made available on its Platform is not accurate, complete, or current. For clarity, you are relying on any information found on the Platform at your own risk.
Upaway reserves the right to modify the contents of this Platform at any time but has no obligation to update any information on the Platform. You agree that it is your responsibility to monitor our Platform for any changes that may occur. Upaway strives to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies, or omissions related to pricing and availability. Upaway reserves the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
18. Customer Satisfaction
Upaway’s top priority is customer satisfaction. Upaway has a Phone Number/Live Chat function which can be used during normal business hours. If you need assistance while the Live Chat function is offline, you may e-mail us directly at email@example.com and we will respond within 24-48 hours.
By using this Platform, you affirmatively consent that Upaway may use and share your video and image viewing data with third parties until consent is withdrawn. Upaway may track your viewing for its research, analytics, or ad serving purposes. It may share the above information with:
A) “Ad Networks”: Companies that display ads to you in the Platform;
B) “Data Analytics Providers”: Companies that collect and analyze the information collected about you; and
C) “Social Networks”: Companies that connect individuals around common interests and facilitate sharing (e.g., Facebook).
Reviews, responses, profile entries, posts or questions may not be able to be deleted once uploaded. For some features of our Services, other Users may be able to request e-mail notifications of your new public content or publish their own comments to your comments. We may use the public content to develop aggregate ratings, personalize site views, market products, or identify or feature popular members.
20. Wireless and Location-Based Features; Social Media Plug-ins
Wireless Features. Our Services may offer certain features that are available to you via your wireless device. These features may include the ability to access our Services, upload content, receive messages, and download applications to your wireless device (collectively, “Wireless Features”). Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless device. In addition, your carrier may charge you for standard messaging, data, and other fees to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. We have no responsibility or liability for any fees or charges you incur when using Wireless Features. You should check with your carrier to find out whether any fees or charges will apply, what plans are available, and how much they cost. You should also contact your carrier with any other questions regarding these issues.
Terms of Wireless Features.
In addition, where the Platform collects precise information about the location of your device, it may be used to provide requested location services, and it may be used, amongst other uses, to allow tagging or to check-in.
The App will allow for you to disable the location-based features or manage preferences related to them. However, you can terminate device location tracking by uninstalling the App. The location-based services offered in connection with our App are for individual use only and should not be used or relied on as an emergency locator system, used while driving or operating vehicles, or used in connection with any hazardous environments requiring fail-safe performance, or any other situation in which the failure or inaccuracy of use of the location-based services could lead directly to death, personal injury, or severe physical or property damage. The location-based services are not suited or intended for family finding purposes, fleet tracking, or any other type of business or enterprise use.
Social Media Plug-Ins.
Social media plug-ins of social networks such as Facebook, Twitter and Google Plus (among others) may be integrated on our Services. Where our Services contain a plug-in to a social network, these are clearly marked. If you choose to click on one of these buttons or links, your browser connects directly to the servers of the relevant social network. The social network directly transmits the content of the plugin to your browser. If you are registered on the relevant social network and logged into your respective account the social network receives the information that the web page was used by you. If you interact with a social network plug-in (e.g., you press the Facebook “Like” feature, the Twitter “Tweet this” feature, Google Plus “1+” button, or equivalent) or drop a comment on the appropriate web page, the corresponding information is directly transmitted to the relevant social network from your browser. If you are not registered with the social network or you are logged out before you use our Services, there is the possibility that at least your IP address will be submitted to and stored by the social network. If you interact with us through a social media platform, plug-in, etc., then you may be enabling us to have ongoing access to certain information from your social network profile (such as your name, social networking id page, e-mail address, photo, gender, location, the people/sites you follow, etc.).
21. Intellectual Property & Proprietary Rights
Upaway owns, solely and exclusively, all right, title and interest in and to the Services, all content, software code, data, and materials thereon, the look, feel, design and organization of the Platform, and the compilation of the content, code, data, and materials on the Platform, including but not limited to any intellectual property and/or proprietary rights. Upaway reserves all rights in and to the Services not granted expressly in these Terms. Nothing shall be construed as granting to you, by implication, estoppel, or otherwise, any license or right to the Services or any of our content except as expressly permitted by these Terms.
If you post, upload, or make available any, information, data, text, files, communications, or other materials regarding our Services and your use of the Services on any website, blog, article, or social media platform (“Your Content”), you hereby grant Upaway a perpetual, non-exclusive, irrevocable, royalty-free, sub-licensable, and transferable (in whole or in part), worldwide license to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform, or otherwise exploit Your Content including your name, image, voice, likeness and/or other biographical information or material in connection with Your Content, in whole or in part, in all media formats and distribution methods now known or hereafter devised in connection with the Services, including but not limited to advertising, promoting, and marketing the Services, all without further notice to you, with or without attribution, without limitation as to frequency, and without the requirement of any permission from or payment to you or to any other person or entity. You waive any right to inspect or approve Your Content or any use of Your Content. You waive all moral rights to Your Content, which may be available to you in any part of the world and confirm that no such rights have been asserted. None of Your Content will be subject to any obligation on our part, whether of confidentiality, attribution or otherwise, and we will not be liable for any use or disclosure of any Your Content.
22. Disclaimer of Warranties and Limitation of Liability
YOUR USE OF THE PLATFORM AND THE SERVICES ARE AT YOUR SOLE RISK. ALL SERVICES OFFERED ON THE PLATFORM ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY: A) WARRANTY OF MERCHANTABILITY; B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM UPAWAY OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE PLATFORM WILL CREATE ANY WARRANTY REGARDING ANY OF UPAWAY’S SERVICES. YOU ASSUME ALL RISK FOR ANY HARM OR DAMAGE THAT MAY RESULT TO YOU FROM YOUR USE OF OR ACCESS TO THE SITE, THE APP, AND/OR THE SERVICES, YOUR DEALING WITH ANY OTHER TRAVEL SUPPLIER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE PLATFORM. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICES, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE MATERIALS OR CONTENT OBTAINED THROUGH THE PLATFORM AND ANY ASSOCIATED WEBSITES 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 OR DOWNLOAD OF OUR APP.
WITHOUT LIMITATION, YOU AGREE THAT UPAWAY IS NOT LIABLE FOR ANY DAMAGES ARISING FROM OR RELATED TO ANY ACT OF GOD OR PUBLIC ENEMIES, ARREST, RESTRAINTS OF ANY GOVERNMENT OR RULERS OF PEOPLE, PIRACY, WAR, REVOLUTION, EXTORTION, TERRORIST ACTIVITY, THREATENED OR ACTUAL REBELLION, POLITICAL UPHEAVAL, CIVIL UNREST, RIOTS, FIRE, LOCKOUT, EXPLOSION, COLLISION, WEATHER CONDITIONS, DANGERS INCIDENT TO THE SEA, MECHANICAL OR CONSTRUCTION FAILURES OR DIFFICULTIES, DISEASES, LOCAL LAWS, ABNORMAL ILLNESS, GROUNDING, PERILS OF THE SEA, RIVERS, CANALS, LOCKS OR OTHER WATERS, PERILS OF NAVIGATION OF ANY KIND, THEFT, ACCIDENT TO OR FROM MACHINERY, BOILERS, OR LATENT DEFECTS, EVEN THOUGH EXISTING AT COMMENCEMENT OF THE TRIP, DESERTION OR REVOLT OF CREW, OR LOST/DAMAGED/DELAYED BAGGAGE.
THE ABOVE PARAGRAPHS APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES, IN PARTICULAR A DISCLAIMER OF WARRANTIES PROVIDED OR IMPLIED BY LAW, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
IN NO EVENT SHALL UPAWAY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR UPAWAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
In addition to the preceding paragraphs of this section and other provisions of these Terms, any advice that may be posted on the Platform is for informational purposes only. Upaway makes no representations or warranties and expressly disclaims any and all liability concerning any treatment, action by, or effect on any person following the information offered or provided within or through the Platform. If you have specific concerns or a situation arises in which you require professional advice, you should consult with an appropriately trained and qualified professional.
The limitation of liability set forth above shall: A) only apply to the extent permitted by law; and B) not apply to: (i) liability resulting from our gross negligence or willful misconduct, or (ii) death or bodily injury resulting from our acts or omissions.
23. Limitation of Liability for Air Transport
IN ADDITION TO THE LIMITATIONS OF LIABILITY SET FORTH ABOVE, YOU AGREE
THAT UPAWAY IS NOT LIABLE FOR ANY DAMAGES ARISING FROM OR RELATED TO ANY AIRLINE TIMETABLE CHANGES, DELAYS, CANCELLATIONS, MISSED CONNECTIONS, MECHANICAL PROBLEMS, INCLEMENT WEATHER, REASSIGNMENTS, LOST/DELAYED BAGGAGE, SCREENING AND SECURITY DELAYS, REFUSED BOARDING, OR FAILURE TO CHECK-IN PROPERLY.
24. Agency Intermediary
Upaway is simply an intermediary between Travel Suppliers and you. Upaway does not operate any hotels, shore excursions, tours, transportation providers, cruise lines, vessels, airlines, travel protection companies, attractions, or any other travel related supplies who provide goods and services for Customers.
Customer acknowledges and agrees that Upaway shall not be responsible for any loss, damage, delay, inconvenience or injury to Customer as a result of a breach of contract, act or omission whether willful or negligent, criminal or otherwise of any person other than Upaway or its direct employees, including but not limited to any Travel Supplier, their employees, agents, servants, or representatives.
Travel Suppliers reserve the right to deviate from the direct, customary and/or scheduled route or itinerary for any reason, without limitation and without notice. Customer acknowledges and agrees that Upaway is not responsible for Travel Supplier deviations, delays, cancellations, mandated overnight stays, missed connections or any other condition beyond its control.
Upaway recommends that all Customers be in good physical and mental health and have medical approval to travel. For Upaway to assist with any special accommodations, emotional support requirements, physical disabilities or limitations, or other custom needs (together “Special Accommodations”), all Special Accommodations must be reported to Upaway at the time of reservation upon initial booking so that Upaway can contact the Travel Suppliers to investigate the amenities offered. Customer is required to provide his or her own personal or individually prescribed devices such as wheelchairs, walkers, or similar devices. If more than minor assistance is needed, Travel Suppliers may require that the Customer be accompanied by a companion who is capable of, and responsible for, providing such assistance. Travel Suppliers often reserve the right to reject Customers whose mental or physical condition may interfere with the itinerary. Customer acknowledges and agrees that Upaway shall be held harmless for any and all claims relating to Travel Supplier rejection relating to mental or physical condition.
While Upaway prides itself on selecting top quality Travel Suppliers, no undertaking, guarantee or warranty is given or shall be implied as to the fitness or condition of the Travel Supplier’s accommodations, transportation, or any food, drink, medicine, or provisions supplied. Customer acknowledges and agrees that Upaway shall not be responsible for refunding, either fully or partially, any amounts paid due to unsatisfactory services from any Travel Supplier. In no event shall Upaway be liable for any accident which occurs in hotels, in resorts, on airplanes/in airports, on buses/in bus stations, on trains/in train stations, on board a cruise ship, on tenders, on shore excursions, or during any mode of transportation encountered during the trip, resulting from equipment or any other cause. Customer admits a full understanding of the nature and character of the mode of transport and assumes all risks of travel, transportation and handling of passengers and baggage.
25. Dispute Resolution
If a controversy or claim should arise, the parties will first attempt in good faith to resolve such controversy or claim by negotiation. If the matter has not been resolved within thirty (30) days by negotiation, the parties will attempt in good faith to resolve the controversy or claim in accordance with mediation, with mutually agreeable rules. If the matter has not been resolved by mediation within sixty (60) days of the commencement of mediation, or if either party will not participate in mediation, then the controversy shall be settled by binding arbitration. The written decision of the arbitrator shall be binding and conclusive on the parties. The parties agree that there shall be no pre-arbitration discovery and the arbitrator shall not award punitive damages to either of the parties. Judgment may be entered in any court having jurisdiction.
26. Class Action Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AGREE THAT YOU MAY ONLY BRING CLAIMS AGAINST UPAWAY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Upaway may provide any notice to you under these Terms by: A) sending a message to an e-mail address that you provide; or B) by posting to the Platform. Notices sent by e-mail will be effective on the date the e-mail is sent, and notices that are posted on the Platform will be effective upon posting. It is your responsibility to keep your e-mail address current and review any new notices that are posted.
To provide us notice under these Terms, you must contact us by: e-mail; personal delivery; overnight courier; or certified mail. Notice by e-mail shall be effective on the date the e-mail is sent. Notice provided by personal delivery shall be effective immediately. Notice provided by an overnight courier shall be effective one business day after it is sent. Notice provided by certified mail shall be effective three business days after it is sent.
28. Terms Applicable For Apple iOS
If you are accessing or using our Services through an Apple Device, the following additional terms and conditions are applicable to you and are incorporated into these Terms by this reference:
To the extent that you are accessing our Services through an Apple Device, you acknowledge that these Terms are entered into between you and Upaway and Apple, Inc. (“Apple”) is not a party to these Terms other than as a third party beneficiary as contemplated below.
The license granted to you in these Terms is subject to the permitted Usage Rules set forth in the App Store Terms (see: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to our Services.
You acknowledge that Upaway, and not Apple, is responsible for providing our Services and any Content therein.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support services to you with respect to our Services.
To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to our Services.
Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple and Upaway, Upaway and not Apple is responsible for addressing any claims you may have relating to our Services, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that our Services fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. As set forth in these Terms, Upaway’s liability to you for use of our Services is greatly limited.
Further, you agree that if our Services, or your possession and use of our Services, infringes a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement or discharge of any such intellectual property infringement claims.
You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.
When using our Services, you agree to comply with any and all third party terms that are applicable to any platform, website, technology or service that interacts with our Services.
29. Seller of Travel
Upaway is a registered seller of travel in each of the states listed below:
California Registration Number:
Florida Registration Number:
Hawaii Registration Number:
Iowa Registration Number:
Nevada Registration Number:
Registration as a seller of travel in California does not constitute the state’s approval.
Third Party Content. The Services shall contain links, advertisements, and references to other third party service providers (“Third Party Content”). Upaway is not responsible for any Third Party Content or the actions of those that provide such content. Any information regarding a Third Party found on our Platform does not express and/or imply that Upaway endorses or accepts any responsibility or liability for the Third Party, or vice versa.
Indemnification. By using the Services, you agree to indemnify, hold harmless, and defend Upaway from any claims, damages, losses, liabilities, and all costs and expenses of defense, including, but not limited to, attorney’s fees resulting directly or indirectly from a claim by a third party that is based on your use of the Services.
Governing Law and Jurisdiction. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule.
Severability. If any provision of these Terms is invalid, illegal, void, or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
Waiver. The failure by Upaway to enforce any right or provision of these Terms will not constitute as a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Upaway.
Force Majeure. Upaway will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Notice to California Users. Under California Civil Code Section 1789.3, California users of our Services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action against Upaway arising out of or related to the use of the Platform or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
If you have any questions, please feel free to contact Upaway directly at: