IMPORTANT NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW.
PLEASE READ CAREFULLY.
User’s Acknowledgment and Acceptance of Terms and Conditions
This Terms of Use Agreement (“Terms”) govern your access to, use of, and participation in the Platform made available by Trixiron Technology LLC. (“UpkeepDay.com,” “UpKeepDay.com”, “we,” “our,”, “UpKeepDay”, “site”, or “us”) or through UpKeepDay.com including Provider Services obtained from or provided to other users. All references to “you” or “your,” as applicable, mean the person who accesses, uses, and/or participates in the Platform in any manner, and each of your heirs, assigns, and successors. If you use the Platform on behalf of an entity, you represent and warrant that you have the authority to bind that entity, your acceptance of the Terms will be deemed an acceptance by that entity, and “you” and “your” herein shall refer to that entity, its members, owners, directors, employees, and any other agent of that entity. As used in these Terms of Use, references to our “Affiliates” include our owners, subsidiaries, affiliated companies, officers, directors, suppliers, partners, sponsors, and advertisers, and includes (without limitation) all parties involved in creating, producing, and/or delivering UpKeepDay site and Platform and/or its contents.
PLEASE READ THE TERMS THOROUGHLY AND CAREFULLY. BY COMPLETING THE REGISTRATION PROCESS AND/OR USING THIS SITE, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS, PLEASE EXIT THE SITE NOW. YOUR REMEDY FOR DISSATISFACTION WITH THIS SITE, OR ANY PRODUCTS, SERVICES, CONTENT, OR OTHER INFORMATION AVAILABLE ON OR THROUGH THIS SITE, IS TO STOP USING THE SITE AND/OR THOSE PARTICULAR PRODUCTS OR SERVICES. YOUR AGREEMENT WITH US REGARDING COMPLIANCE WITH THESE TERMS OF USE BECOMES EFFECTIVE IMMEDIATELY UPON COMMENCEMENT OF YOUR USE OF THIS SITE AND PLATFORM.
We reserve the right to change these Terms of Use from time to time without notice to you. You acknowledge and agree that it is your responsibility to review this site and these Terms of Use periodically and to be aware of any modifications. Your continued use of this site after such modifications will constitute your acknowledgment of the modified Terms of Use and agreement to abide and be bound by the modified Terms of Use.
AS DETAILED IN THE SECTIONS BELOW, IF YOU ARE A PROVIDER MEMBER, YOU UNDERSTAND AND AUTHORIZE UPKEEPDAY.COM TO USE YOUR INFORMATION TO OBTAIN BACKGROUND CHECKS AND BUSINESS CREDIT CHECKS FROM ITS VENDORS THROUGHOUT THE USE OF THE PLATFORM.
UpKeepDay.com reserves the right, in its sole discretion, to modify these Terms, and any other documents incorporated by reference herein, at any time and without prior notice. UpKeepDay.com will notify you of changes by posting on the Platform or sending you an email. Amendments will become effective thirty (30) days after they are posted on the Platform or sent to you by email. Your use of the Platform after the expiration of the thirty (30) days shall constitute your consent to the changes. If you do not agree, you may not access or use the Platform. Your continued use of this site after such modifications will constitute your acknowledgment of the modified Terms of Use and agreement to abide and be bound by the modified Terms of Use. Please review UpKeepDay.com’s Privacy Policy for information and notices concerning UpKeepDay.com’s collection and use of your information. The provision and delivery of text messages by UpKeepDay.com or our text message service providers is governed by our SMS Terms and Conditions, which are expressly incorporated herein. Certain areas of and/or products on the Platform may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions or policies. If there is a conflict between these Terms and terms and conditions or policies posted for a specific area or product, the latter take precedence with respect to your use of that area or product.
Description of Services and Key Terms
We make various services available on Platform for service businesses. Fees for the various services are described elsewhere in this site. You are solely responsible for providing, at your own expense, all equipment necessary to use the services, including a computer and modem; and your own Internet access (including payment of telephone service fees associated with such access).
“Platform” means all UpKeepDay.com websites, mobile or other applications, software, processes, and any other services provided by or through UpKeepDay.com.
“Member” means a person who completes UpKeepDay.com’ account registration process or a person who submits or receives a request through UpKeepDay.com, including but not limited to Provider Members and Customer
“Content” means text, graphics, images, music, software, audio, video, information or other materials, including but not limited to profile information, Provider Services requests, quotes, message threads, reviews, scheduling and calendar information, and other information or materials available on or through the Platform. “UpKeepDay.com Content” means all Content UpKeepDay.com makes available on or through the Platform, including any Content licensed from a third party, but excluding User Content. “User Content” means all Content you submit, post, upload, publish, or transmit on or through the Platform, including but not limited to photographs, videos, profile information, descriptions, postings, and reviews. “Collective Content” means User Content and UpKeepDay.com Content together. “Provider Services” means the services listed, quoted, scheduled, offered or provided by Provider Members, or sought, scheduled or received by Customer Members, through the Platform.
Eligibility
You must be at least 18 years of age and capable of forming legally binding contracts under applicable law in order to access this site. By accessing or using the Platform, you represent and warrant that you are eligible. By registering or using the Platform to offer, post or provide Provider Services, Provider Members represent and warrant that they, and the employees, agents, contractors, and subcontractors who may perform work for them, are properly and fully qualified and experienced, and licensed, certified, bonded, and insured, as required by applicable laws or regulations to which they may be subject in the jurisdiction(s) in which they offer their Provider Services and in relation to the specific job they are performing. Provider Members understand and agree that sending a quote does not guarantee the quote will be read and using the Platform does not guarantee they will be hired for work. Provider Members understand and agree that we may, in our sole discretion manage and represent your business in Google places. In all aspects, Provider Members agree to comply with all applicable laws, including the California Consumer Privacy Act, in their use of the Platform and any personal information obtained from the Platform.
UpKeepDay.com does not provide Provider Services. Provider Members understand and agree that by creating an account on the Platform, they receive only the ability to use the Platform to access persons interested in receiving Provider Services and related tools, including but not limited to the ability to message those persons or schedule appointments, that facilitate the provision of Provider Services. Provider Members understand and agree that using the Platform does not guarantee that anyone including by not limited to Customer Members will engage, book, hire or pay them for Pro Services. Provider Members understand and agree that they are not UpKeepDay.com employees. Provider members understand and agree that they are customers of UpKeepDay.com, not partners, agents, joint ventures, or employees.
Provider Members acknowledge that they represent themselves and/or their business only, that they set or confirm their own prices or rates, provide their own equipment, and create their own work schedule. UpKeepDay.com has no right to control and does not in any way control the services provided to Customer Members, or any other person, by Provider Members except as specifically mentioned herein.
As permitted by applicable laws, UpKeepDay.com obtains reports regarding Provider Members, which may include but is not limited to history of criminal convictions or sex offender registration, and we may limit, block, suspend, deactivate, or cancel a Provider Member’s account based on the results of such check. As a Provider Member, you agree and authorize us to use your personal information, such as your full name and date of birth, to obtain such reports from our vendors.
Account Registration and Other Submissions
Users may access the Platform without registering for an account. To access and participate in certain features of the Platform, you will need to create a password-protected account (“Account”). You may register by completing our online registration process, which requests certain information and data (“Registration Data”) and maintaining and updating your Registration Data as required, or you may register for an Account using your existing Facebook or Google account and log-in credentials (your “Third-Party Site Password”).
You agree to provide accurate and complete information during the registration process, request submission process, and at all other times when you use the Platform. You also agree to update information to keep it accurate, current, and complete. You are solely responsible for safeguarding your UpKeepDay.com password and, if applicable, your Third-Party Site Password. You are solely responsible for all activity that occurs on your Account, and you will notify UpKeepDay.com immediately of any unauthorized use. UpKeepDay.com is not liable for any losses by any party caused by an unauthorized use of your Account. Notwithstanding the foregoing, you may be liable for the losses of UpKeepDay.com or others due to such unauthorized use. Your UpKeepDay.com Account is non-transferable unless you receive written permission from us and follow all policies and procedures to complete the transfer of the Account.
Your License To Use The Platform
Subject to your compliance with these Terms, UpKeepDay.com grants you a limited, revocable, non-exclusive, nontransferable, and non-sublicensable license to reproduce and display Collective Content (excluding any software source code) solely for your personal and non-commercial use and only in connection with your access to and participation in the Platform. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Platform or Collective Content, except as expressly permitted in these Terms. The Platform and Collective Content are provided to you AS IS. If you download or print a copy of Collective Content for personal use, you must retain all copyright and other proprietary notices contained thereon. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by UpKeepDay.com or its licensors, except for the licenses and rights expressly granted in these Terms.
User Content and Conduct
We may, in our sole discretion, permit you to post, upload, publish, submit or transmit User Content. By making available any User Content on or through the Platform, you hereby grant to UpKeepDay.com a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such User Content on, through, by means of or to promote, market or advertise the Platform or Provider Services, or for any other purpose in our sole discretion, except that private messaging through the Platform will not be used by UpKeepDay.com in public advertising. In the interest of clarity, the license granted to UpKeepDay.com shall survive termination of the Platform or your Account. UpKeepDay.com does not claim ownership rights in your User Content and nothing in these Terms will be deemed to restrict rights that you may have to use and exploit any such User Content. You acknowledge and agree that you are solely responsible for all User Content that you make available on or through the Platform. Accordingly, you represent and warrant that: (a) you either are the sole and exclusive owner of all User Content that you make available on or through the Platform or you have all rights, licenses, consents and releases that are necessary to grant to UpKeepDay.com the rights in such User Content, as contemplated under these Terms; and (b) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or UpKeepDay.com’ use of the User Content (or any portion thereof) on, through or by means of the Platform will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. You agree that UpKeepDay.com’ may proofread, summarize or otherwise edit and/or withdraw Content provided by you, and you understand it remains your sole responsibility to monitor your User Content and ensure that such edited Content is accurate and consistent with your representations and warranties in these Terms. You further agree that you are the author of all Content you create and submit to the Platform and that you are the owner of such Content, subject to the license rights granted in these Terms.
UpKeepDay.com reserves the right, at any time and without prior notice, to remove or disable access to User Content that we, in our sole discretion, consider to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Platform or users, or for any other reason.
We reserve the sole right to either modify or discontinue the site, including any features therein, at any time with or without notice to you. We shall not be liable to you or any third party should we exercise such right. Modifications may include, but are not limited to, changes in the pricing structure, the addition of fee-based services, or changes to limitations on allowable file sizes. Any new features that augment or enhance the then-current services on this site shall also be subject to these Terms of Use.
You understand and agree that temporary interruptions of the services available through this site may occur as normal events. You further understand and agree that we have has no control over third party networks you may access in the course of the use of this site, and therefore, delays and disruption of other network transmissions are completely beyond our control. You understand and agree that the services available on this site are provided “AS IS” and that we assume no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings.
Your use of the site is subject to all applicable laws and regulations, and you are solely responsible for the contents of your communications through the site. By posting information in or otherwise using
any communications service, chat room, message board, newsgroup, software library, or other interactive service that may be available to you on or through this site, you agree that you will not upload, share, post, or otherwise distribute or facilitate distribution of any content — including text, communications, software, images, sounds, data, or other information — that:
Is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, contains explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), or otherwise violates our rules or policies;
Victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
Infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party;
Constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (also known as “spamming”), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
Contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party; or
Impersonates any person or entity, including any of our employees or representatives.
We neither endorse nor assume any liability for the contents of any material uploaded or submitted by third party users of the site.
We generally do not pre-screen, monitor, or edit the content posted by users of communications services, chat rooms, message boards, newsgroups, software libraries, or other interactive services that may be available on or through this site. However, we and our agents have the right at their sole discretion to remove any content that, in our judgment, does not comply with these Terms of Use and any other rules of user conduct for our site, or is otherwise harmful, objectionable, or inaccurate. We are not responsible for any failure or delay in removing such content. You hereby consent to such removal and waive any claim against us arising out of such removal of content. In the event that any party believes that content posted on this site infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party, please contact us at support@UpKeepDay.com.
Prohibitions
As a Member or user of the Platform, you may not: use another person’s Account, misrepresent yourself or Provider Services offered through the Platform, misrepresent your identity or qualifications, misrepresent a project or other information in a quote request, or post Content in any inappropriate category or areas on the Platform;
Use any automated system including but not limited to robots, spiders, offline readers, scrapers to access the Platform for any purpose without UpKeepDay.com’s prior written approval;
In any manual or automated manner copy copyrighted text, or otherwise misuse or misappropriate Platform information or Content including but not limited to, use on a mirrored, competitive, or third-party site;
Transmit more request messages through the Platform in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser; provided, however, that the operators of public search engines may use spiders or robots to copy materials from the Platform for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such material. UpKeepDay.com reserves the right to revoke these exceptions either generally or in specific cases;
Take any action that (a) may unreasonably encumber the Platform’s infrastructure; (b) interferes or attempts to interfere with the proper working of the Platform or any third-party participation; (c) bypasses measures that are used to prevent or restrict access to the Platform; (d) circumvents, disables or otherwise interferes with security features of the Platform; (e) distributes viruses or any other technologies that may harm UpKeepDay.com or users; (f) uses the Platform in a way that violates any copyrights, trade secrets, or other rights of any third party, including privacy or publicity rights; or (g) circumvents or manipulates Fee (defined herein) structure, billing, or Fees owed;
Collect, harvest or publish any personally identifiable data including but not limited to names or other account information, from the Platform, or use the communication systems provided by the Platform for any reason not explicitly authorized by these Terms, including commercial solicitation purposes;
Recruit, solicit, or contact in any form Provider Members or Customer Members for employment or any other use not specifically intended by the Platform;
Take any inappropriate or unlawful actions, including the submission of inappropriate or unlawful Content to or through the Platform, including Content that is harassing, hateful, illegal, profane, obscene, defamatory, threatening, or discriminatory; advocates, promotes, or encourages inappropriate activity, conduct that would be considered a criminal offense, or conduct that would give rise to civil liability or violate any law;
Advertise or solicit a Provider Service not related to or appropriate for the Platform including, but not limited to any Provider Service that (a) is not in supported categories or provides only products; (b) provides directories or referrals; (c) offers lending; (d) offers rental space; (e) promotes events (such as a party or professional convention); (f) competes with the business of UpKeepDay.com; (g) promotes or offers Ponzi schemes, junk mail, spam, chain letters, pyramid schemes, affiliate marketing or unsolicited commercial content, discount cards, credit counseling, online surveys or contests, raffles, prizes, bonuses, games of chance or giveaways; or (h) provides non-local content.
Submit User Content that damages the experience of any user including but not limited to (a) requests to download non-UpKeepDay.com mobile applications and/or links that direct the user to mirrored websites where the user must enter information that is redundant with what has already been entered on UpKeepDay.com, (b) offers to purchase a Provider Service or any other service outside of UpKeepDay.com, or (c) using a profile page or user name to promote services not offered on or through the Platform;
Take any action that may undermine the efficacy or accuracy of reviews or ratings systems;
Fail to perform Provider Services purchased from you as promised, unless the Customer Member fails to materially meet the terms of the mutually agreed-upon agreement for the Provider Services or refuses to pay, or a clear typographical error is made, or you cannot authenticate the Customer Member’s identity;
Engage in fraudulent conduct including but not limited to offering to make money transfers with intent to request a refund of any portion of the payment or soliciting users to mail cash or use other payment methods not specifically approved by UpKeepDay.com;
Sign up for, negotiate a price for, use, or otherwise solicit a Provider Service with no intention of following through with your use of or payment for the Provider Service;
Agree to purchase a Provider Service when you do not meet a Provider Member’s requirements;
Undertake any activity or engage in any conduct that is inconsistent with the business or purpose of the Platform;
Use the Platform or any other services offered by us to facilitate or inflict harm in any fashion including, but not limited to, financial, emotional, or physical harm upon any other person or company; or
Attempt to indirectly undertake any of the foregoing.
As a user of the Site or Member, you agree not to sell, share, send or otherwise disseminate any personal or personally identifiable data as it is defined by the California Consumer Privacy Act, including but not limited to any information related to users of the Site, Provider Members, or Customer Members.
Fees and Taxes
Fees. In connection with use of UpKeepDay.com’ Platform, UpKeepDay.com charges certain Fees (“UpKeepDay.com Fees” or “Fees”). Provider Members can pay Fees to UpKeepDay.com to receive access to either mono-teacher account or multi-teacher account, or both. The Fees are based on the usage and details are provided in the pricing section on the website, upkeepday.com. Fees for any additional products or services will be shown in policies or terms provided to you before you use such products or services. All Fees are quoted in United States Dollars and are non-refundable except as otherwise specifically noted. In order to use UpKeepDay.com as a Provider Member, you must have at least one valid payment method stored on file. UpKeepDay.com will automatically charge a Provider Member’s stored payment method when a Provider Member signs up for services identified as paid services on the site. The Provider Member will need to proceed with registration for such services and provide its agreement of being charged. The automatic charge can be cancelled upon Provider Member sending such request to UpKeepDay.
Price Changes. UpKeepDay reserves the right to adjust Fees at any time. The change will be announced either via UpKeepDay platform or email.
Payment Processing. Payment processing services are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these terms or continuing as a member, you accept the Stripe Services Agreement, which may be updated by Stripe periodically. Payments, net of UpKeepDay fees, are deposited directly into Provider members’ Stripe accounts from Customer members. This means UpKeepDay facilitates the purchase of real-time person-to-person services.
Taxes. Payments required by these Terms may be stated exclusive of all taxes, duties, levies, imposts, fines or similar governmental assessments, including sales and use taxes, value-added taxes, goods and services taxes, excise, business, service, and similar transactional taxes imposed by any jurisdiction and the interest and penalties thereon (collectively, “Taxes”). Certain jurisdictions, however, may require us to collect Taxes from you in connection with the purchase of, payment for, access to, or use of the Platform, and you shall be responsible for and bear Taxes associated with the purchase of, payment for, access to, or use of the Platform. Charges are inclusive of applicable Taxes where required by law. You hereby confirm that UpKeepDay.com can determine your appropriate jurisdiction for tax purposes however it deems appropriate or as required by law, and you agree to pay taxes to UpKeepDay.com when UpKeepDay.com includes a charge for taxes on any invoice. You also understand and agree that you are solely responsible for determining your own tax reporting and sales and use tax collection requirements in consultation with your own tax advisers, and that we cannot and do not offer specific tax advice to either Provider Members or Customer Members.
Endorsements
UpKeepDay.com does not endorse any Member, user, or any Provider Services. UpKeepDay.com is not a party to any agreements between or among users, Members or third parties. No partnership, joint venture, agency or employment is created as a result of the Terms or any user’s or Member’s use of any part of the Platform, including but not limited to account creation, chat, or other services. Neither UpKeepDay.com nor any Members or users of the Platform may direct or control the day-to-day activities of the other or create or assume any obligation on behalf of the other. As required by these Terms, all Members and users agree that all information they provide to UpKeepDay.com is true and accurate and that they will maintain and update this information as required in order to keep it current, complete and accurate. UpKeepDay.com may take additional measures and processes designed to help verify or check the identities or backgrounds of Members or other users, but we do not make any representations about, confirm, or endorse any Member or other user or their purported identity or background, regardless of the specific UpKeepDay.com services they are using or any involvement by UpKeepDay.com personnel in providing or scheduling those services. The Collective Content may contain links to third-party websites, offers, or other events/activities not owned or controlled by UpKeepDay.com. We do not endorse or assume any responsibility for any such links, and if you access them, you do so at your own risk. By using the Platform, you understand and agree that any legal remedy or liability that you seek to obtain for actions or omissions of other users or other third parties will be limited to a claim against those users or other third parties. You agree not to attempt to impose liability on or seek any legal remedy from UpKeepDay.com with respect to such actions or omissions.
User Disputes
UpKeepDay.com values all our users, and we understand that disputes may arise between or among users. In the rare event a dispute cannot be resolved independently, you agree, at UpKeepDay.com’ request, to participate with good faith, to the extent you are reasonably able to do so, in a neutral resolution, mediation or arbitration processes conducted by UpKeepDay.com or a neutral third party mediator or arbitrator selected by UpKeepDay.com. Notwithstanding the foregoing, you acknowledge and agree that UpKeepDay.com is under no obligation to become involved in or impose resolution in any dispute between or among users or any third party.
Intellectual Property Rights and Copy Right Policy
For purposes of these Terms of Use, “content” is defined as any information, communications, software, photos, video, graphics, music, sounds, and other material and services that can be viewed by users on our site. This includes, but is in no way limited to, message boards, chat, and other original content. By accepting these Terms of Use, you acknowledge and agree that all content presented to you on this site is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws, and is the sole property of Liaison, Inc and/or its Affiliates. You are only permitted to use the content as expressly authorized by us or the specific content provider. Except for a single copy made for personal use only, you may not copy, reproduce, modify, republish, upload, post, transmit, or distribute any documents or information from this site in any form or by any means without prior written permission from us or the specific content provider, and you are solely responsible for obtaining permission before reusing any copyrighted material that is available on this site. Any unauthorized use of the materials appearing on this site may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties. Neither we or our Affiliates warrant or represent that your use of materials displayed on, or obtained through, this site will not infringe the rights of third parties. In appropriate circumstances we reserve the right to terminate the Account of any user who repeatedly infringes or is believed to be repeatedly infringing the rights of copyright holders. We expect users to respect copyright law.
Violations of Terms
Without limiting any other rights reserved herein, UpKeepDay.com may, in its sole discretion, take any action permitted by law for any violation of these Terms or any other policy or agreement between you and UpKeepDay.com, including but not limited to limiting your Account access, requiring you to forfeit certain funds or paid Fees, assessing monetary penalties, removing User Content you posted, terminating or suspending your Account, notifying other Members of your violations of these terms or termination of your account, decreasing your status or search rank, canceling quotes, messages, or postings, blocking access, investigating you, and/or cooperating with law enforcement agencies in investigation or prosecution. You agree that we may, in our sole discretion, limit, block, terminate, delete, deactivate, cancel, or suspend your access to any or all parts of UpKeepDay.com account and any or all parts of the site with or without prior or post notice or explanation, and for any reason, including, without limitation, breach of these Terms of Use. Any suspected fraudulent, abusive or illegal activity may be grounds for terminating your relationship and may be referred to appropriate law enforcement authorities. If we exercise our discretion under these Terms to do so, any or all of the following can occur with or without prior or post notice or explanation to you: (a) your Account will be deactivated or suspended, your password will be disabled, and you will not be able to access the Platform or your User Content, or receive assistance from UpKeepDay.com support teams; (b) if appropriate, in our sole discretion, we may communicate to other users that your Account has been terminated, and why it has been terminated; and (c) you will not be entitled to any compensation for Platform services or Provider Services cancelled or delayed as a result of Account termination. You may cancel your use of the Platform and/or deactivate your Account at any time from the “Settings” page in your account. Please note that if your Account is cancelled, suspended, terminated, deactivated, paused, limited, and/or blocked for any reason, we are under no obligation to delete or return to you any Content you have posted to the Platform, including, but not limited to, any pictures, videos, and reviews. Upon termination or suspension, regardless of the reasons therefore, your right to use the services available on this site immediately ceases, and you acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or this site. We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection therewith. These Terms, as well as your liability for any unpaid fees, shall survive any termination.
Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. You and UpKeepDay.com agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this Agreement or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of this Agreement. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below. By agreeing to these Terms, you agree to resolve any and all disputes with UpKeepDay.com as follows: Initial Dispute Resolution: Most disputes can be resolved without resort to litigation. You can reach UpKeepDay.com’ support department. The parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with the UpKeepDay.com support department, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
Governing Law and Disclaimers
The Terms and the relationship between you and UpKeepDay.com shall be governed in all respects by the laws of the State of New Jersey, without regard to the conflicts of laws principles thereof and the United Nations Convention on the International Sales of Goods, will apply to all matters relating to the use of this site and the purchase of products and services available through this site. YOUR USE OF THE PLATFORM, SERVICES OR COLLECTIVE CONTENT SHALL BE SOLELY AT YOUR OWN RISK. YOU ACKNOWLEDGE AND AGREE THAT UPKEEPDAY.COM DOES NOT HAVE AN OBLIGATION, BUT RESERVES THE RIGHT FOR ANY REASON, TO (A) MONITOR OR REVIEW USER CONTENT; OR (B) CONDUCT IDENTITY VERIFICATION, BACKGROUND OR REGISTERED SEX OFFENDER CHECKS ON ANY MEMBER, INCLUDING BUT NOT LIMITED TO PROVIDER MEMBERS AND CUSTOMER MEMBERS. THE PLATFORM IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, UPKEEPDAY.COM AND ITS AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT; ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF OR IN TRADE; ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES IN CONNECTION WITH THIS PLATFORM OR THE PROVIDER SERVICES OFFERED ON OR THROUGH THIS PLATFORM; AND ANY WARRANTIES RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS PLATFORM, INCLUDING WITHOUT LIMITATION ALL COLLECTIVE CONTENT. UPKEEPDAY.COM MAKES NO WARRANTY THAT THE PLATFORM OR PROIVIDER SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE PLATFORM. UPKEEPDAY.COM SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY DATA, INFORMATION, MATERIALS, SUBSTANCE, OR COLLECTIVE CONTENT POSTED, TRANSMITTED, OR MADE AVAILABLE VIA THE PLATFORM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM UPKEEPDAY.COM OR THROUGH THE PLATFORM, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OR MEMBERS OF THE PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM, INCLUDING BUT NOT LIMITED TO ANY CUSTOMER MEMBERS, PROVIDER MEMBERS OR SERVICE RECIPIENTS. YOU UNDERSTAND THAT UPKEEPDAY.COM DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE PLATFORM OR TO REVIEW OR VET ANY PROVIDER SERVICES. UPKEEPDAY.COM MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE PLATFORM OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE PLATFORM. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON AND GIVE OR RECEIVE PROVIDER SERVICES. UPKEEPDAY.COM EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USERS OR THIRD PARTIES.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE PLATFORM AND COLLECTIVE CONTENT, YOUR OFFERING OR PROVIDING PROVIDER SERVICES OR REQUESTING OR RECEIVING PROVIDER SERVICES THROUGH THE PLATFORM, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF UPKEEPDAY.COM OR THIRD PARTIES, WHETHER IN PERSON OR ONLINE, REMAINS WITH YOU. NEITHER UPKEEPDAY.COM NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM WILL BE LIABLE (WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT UPKEEPDAY.COM HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE) FOR: (A) ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL; (B) SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE; (C) THE COST OF SUBSTITUTE PRODUCTS OR SERVICES; (D) ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS; (E) THE USE OF OR INABILITY TO USE THE PLATFORM, PROVIDER SERVICES OR COLLECTIVE CONTENT; (F) ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE PLATFORM OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM; OR (G) YOUR OFFERING OR PROVIDING PROVIDER SERVICES OR REQUESTING OR RECEIVING PROVIDER SERVICES THROUGH THE PLATFORM. IN NO EVENT SHALL THE TOTAL, AGGREGATE LIABILITY OF UPKEEPDAY.COM AND ITS AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARISING FROM OR RELATING TO THE TERMS, PLATFORM, PROVIDER SERVICES, AND/OR COLLECTIVE CONTENT, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM OR COLLECTIVE CONTENT OR IN CONNECTION WITH ANY PROVIDER SERVICES OR INTERACTIONS WITH ANY OTHER USERS EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO UPKEEPDAY.COM BY YOU HEREUNDER, OR ONE HUNDRED US DOLLARS IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE.
Indemnification
You agree to release, defend, indemnify, and hold us and our Affiliates harmless from all liabilities, claims, losses, damages and expenses, including but not limited to attorney’s or other legal fees, and accounting fees, that arise from your access, use, misuse, or interaction with any Member or user; and the request or receipt or offer or provision of Provider Services by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with such Provider Services.
Export Controls and International Use
Software available on or through this site is subject to United States Export Controls. No software from this site may be downloaded or exported (a) into (or to a resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country which the United States has embargoed goods; or (b) anyone on the United States Treasury Department’s list of Specially Designated Nationals or the United States Commerce Department’s Table of Deny Orders. By downloading or using the software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. Although this site may be accessible worldwide, we make no representation that materials on this site are appropriate or available for use in locations outside the United States and accessing them from territories where their contents are illegal is prohibited. Those who choose to access this site from other locations do so on their own initiative and are responsible for compliance with local laws. Any offer for any product, service, and/or information made in connection with this site is void where prohibited.
Miscellaneous
Other than payment obligations, neither UpKeepDay.com nor you shall be liable to the other for any delay or failure in performance under the Terms arising out of a cause beyond its control and without its fault or negligence.
Notice
All notices to a party shall be in writing and shall be made via e-mail. Notices to you may be sent either to the e-mail address supplied for your account or to the address supplied by you as part of your Registration Data. In addition, we may broadcast notices or messages through the site to inform you of changes to the site or other matters of importance, and such broadcasts shall constitute notice to you. Any notices or communication under these Terms of Use will be deemed delivered to the party receiving such communication (a) on the delivery date if delivered personally to the party; (b) two business days after deposit with a commercial overnight carrier, with written verification of receipt; (c) five business days after the mailing date, if sent by US mail, return receipt requested; (d) on the delivery date if transmitted by confirmed facsimile; or (e) on the delivery date if transmitted by confirmed e-mail.
