Last Updated: September 20, 2017
2. User Accounts and Sign-up. Portions of the Platform may require You to create a login or sign-up for an account.You must fully complete the registration process by providing us with Your current, complete, truthful, and accurate information as prompted by the applicable registration form. Where a User creates an account, we may ask You to provide identification so that we may verify Your identity. Where required, TourUp may also assign You a username and password. You are entirely responsible for maintaining the confidentiality of Your password and account and for any and all activities that occur under Your account. You agree to notify TourUp immediately of any unauthorized use of Your account or any other breach of security. TourUp will not be liable for any losses You incur as a result of someone else using Your password or account, either with or withoutYour knowledge. However, You could be held liable for losses incurred by TourUp or another party due to someone else using Your account or password. You may not use anyone else's account at any time, without the permission of the account holder. Each person may only register for one account. If You are registering on behalf of Your company, You represent and warrant that You are authorized by Your company to create an account on Your company’s behalf and You represent and warrant that You are authorized by Your company to incur financial obligations and enter into legally binding agreements on behalf of Your company. TourUp has the sole discretion in granting or denying any accounts.
3. Age. The Platform allows Users 18 years of age or older to sign up for and use the Platform.
4. TourUp Platform. The Platform constitutes a communications and scheduling platform for Users seekingSP Services (defined below) and for Service Providers who are seeking to provide suchSP Services to Users. Any specific services provided by a Service Provider shall be referred to as “SP Services.” User agrees that all Service Providers are independent third party contractors and TourUp does not offer or provide any SP Services nor doesTourUp employ any Service Providers. All SP Services are solely offered by ServiceProviders, which may be scheduled through the Platform as Tours (defined below).TourUp may not screen any such Service Providers. USER ACKNOWLEDGES THAT TOURUP IS MERELY A PLATFORM AND DOES NOT PERFORM ANY SP SERVICES AND DOES NOT RECOMMEND OR ENDORSE ANY SERVICE PROVIDER, ALL SP SERVICES ARE PROVIDED BY INDEPENDENT THIRD PARTY CONTRACTORS WHO ARE NOT EMPLOYED BY TOURUP OR TOURUP’S AFFILIATES.
6. Access to the Platform. After properly registering for the Platform You shall be granted access to the Platform. Where our Platform is available for download, you’ll be granted a limited, non-exclusive, fully revocable license to download one copy of the Platform onto your device. You agree to abide by the following restrictions listed below:
• You may not decompile, reverse engineer, disassemble, modify, rent, sell, lease, loan, distribute, or create derivative works or improvements to thePlatform or any portion of the Platform.
• You may not share Your access with any other parties unless permitted by us in writing.
• You may not violate any laws, rules or procedures of the United States or the local laws of the jurisdiction where you reside.
• You may not violate any of our additional policies.
• You may not use our Platform except through specific channels provided by us.
• You may not use the Platform on a computer that is used to operate nuclear facilities, life support, or other mission critical applications where life or property may be at stake.
• You may not sell, lease, loan, distribute, transfer, or sublicense Your access to the Platform. Please be aware that this is not an all-encompassing list of restrictions, if You breach any of these restrictions, we may revoke Your access to our Platform, at our discretion. Additionally, we may revoke or restrict Your access to our Platform if we believe thatYour actions may harm or have harmed TourUp or the Platform itself. Failure by us to revoke Your access does not act as a waiver of Your conduct.
7. Your Conduct While Using The Platform. When accessing or using our Platform, You are solely responsible for Your use and for any use of the TourUp Platform made using Your account. You agree to abide by the following rules of conduct:
• You will not copy, distribute or disclose any part of the Platform in any medium, including without limitation by any automated or non-automated“scraping”;
• You will not attempt to interfere with, compromise the system integrity or security of, or decipher any transmissions to or from the servers running thePlatform;
• You will not use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Platform or to extract or export data collected through the Platform;
• You will not take any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;• You agree not to use the Platform to stalk, harass, bully or harm another individual;
• You agree that You will not hold TourUp responsible for Your use of thePlatform;
• You agree not to violate any requirements, procedures, policies or regulations of networks connected to TourUp;
• You agree not to interfere with or disrupt the Platform;
• You agree to not violate any US federal or state laws, or the laws of your local jurisdiction while using the Platform; and
• You agree not to use the Platform in any way that is: misleading, unlawful, defamatory, obscene, invasive, threatening, or harassing.If You are discovered to be undertaking any of the aforementioned actions or if we believe that any of Your actions may harm TourUp’s Platform or business interests Your privileges to use our Platform may at our sole discretion be terminated, revoked, or suspended. Generally, we will provide an explanation for any suspension or termination of Your use of any of our Platform, but TourUp reserves the right to suspend or terminate any account at any time without notice or explanation.
8. Platform Availability and Modification. Although we will attempt to provide continuous Platform availability to You, we do not guarantee that the Platform will always be available, work, or be accessible at any particular time. We make no availability guarantees. We reserve the right to alter, modify, update, or remove our Platform at any time. We may conduct such modifications to our Platform for security reasons, intellectual property, legal reasons, or various other reasons at our discretion, and we are not required to explain such modifications. For example, we may provide updates to fix security flaws, or to respond to legal demands. Please note that this is a non-binding illustration of how we might exercise our rights under this section, and nothing in this section obligates us to take measures to update the Platform for security, legal, or other reasons.
9. User Content. A User’s ability to submit or transmit any information through the Platform, including but not limited to text, audio messages, videos, photos, images, User trademarks, User intellectual property, or any other information will be referred to as “User Content”throughout this Agreement. All User Content You submit to the Platform will be owned by You. Please be aware that we are not required to host, display, migrate, or distribute any of Your User Content and we may refuse to accept or transmit any User Content.You agree that You are solely responsible for any User Content submitted and You release us from any liability associated with any User Content submitted. You understand that we cannot guarantee the absolute safety and security of any such UserContent. Any User Content found to be in violation of this Agreement or that we determine to be harmful to the Platform may be modified, edited, or removed at our discretion. TourUp may not endorse and may not verify, monitor, or restrict any UserContent submitted.When You submit any User Content to us, You grant the TourUp, its partners, affiliates,Users, representatives and assigns a non-exclusive, fully-paid, royalty-free, irrevocable, world-wide, universal, transferable, assignable license to display, publicly perform, distribute, store, broadcast, transmit, reproduce, modify, prepare derivative works and otherwise use and reuse all or part of Your User Content for the duration of thisAgreement. It is important for You to grant us this license so that we may transmit YourUser Content to the Service Providers on our Platform. Additionally, although You own all User Content submitted by You, we own all laYouts, arrangement, metadata and images that are used to render Your User Content through our Platform.
10. User Content Guidelines. We reserve the right to remove, delete, modify, screen, edit, or refuse any User Content for any reason or no reason, and with or without notice to You. Please be aware that all User Content may be viewed by third parties, thus we cannot guarantee the confidentiality of any User Content. When submitting any User Content You agree to the following:
• You agree that User Content submitted is truthful and accurate;
• You agree not to submit any User Content that contains any confidential information;
• You agree not to submit any User Content that contains nudity, or sexual, or explicit content;
• You agree not to submit any User Content that depicts gratuitous violence, animal or child abuse, or encourages violence against others;
• You agree not to submit any User Content contains hate speech or promotes or condones violence against individuals or groups based on race or ethnic origin, religion, disability, gender, age, nationality, veteran status, or sexual orientation/gender identity;
• You agree not to submit any User Content that is considered spam or politically controversial; and
• You agree not to submit any User Content that may be considered:misleading, unlawful, defamatory, obscene, invasive, threatening, or harassing. If You have violated any of our User Content Guidelines or if You we believe that anyUser Content may harm the Platform, Your access to the Platform may be suspended or terminated.
11. Monitoring User Content. Please be aware that TourUp does not create or post any User Content. TourUp shall have the right, but not the obligation, to monitor all User Content on the Platform at all times, including but not limited to any comment sections or feeds that may hereinafter be included as part of the Platform, to determine compliance with this Agreement and any operating rules established by us. Without limiting the foregoing, TourUp shall have the right, but not the obligation, to remove any User Content that TourUp in its sole discretion. For example, we may remove User Content if we believe it violates our content guidelines or if we believe that any User Content may harm us or our business interests. We have no obligation to retain or provide you with copies of any UserContent. If you believe that any User Content is inappropriate or does not comply with this Agreement please contact us through your account dashboard.
12. Tours. Users may use the Platform to search for and book a tour (the “Tour(s)”) provided by a Service Provider. Service Provider may provide additional information and conditions related to the Tour, such as location, pricing, and estimated time to complete the Tour(collectively the “Tour Details”). User may select a Service Provider and any availableTours offered by the Service Provider. Upon selecting a Tour, User may initiate a Tour booking request by selecting the Tour listed on the Platform. User may communicate with the Service Provider regarding any Tour Details or request additional SP Services from the Service Provider. The User and Service Provider are solely responsible for negotiating all terms of the Tour including all Tour Details. Once the Tour, the TourDetails, and all other issues have been negotiated by User and Service Provider,Service Provider may at its discretion accept or reject the Tour booking request made by User. Upon acceptance of a Tour booking by the Service Provider, the Platform shall alert User and provide booking confirmation. Once confirmed, TourUp will shareYour contact information with the Service Provider. Upon confirmation of a booked Tour, a contract is formed solely and directly between the User and Service Provider to provide Tour. User understands and agrees that TourUp is not a party to any contract created between Service Provider and User. TourUp’s only obligation is to accept payment from User on behalf of the Service Provider. Any opinions, advice, or information expressed by any Service Provider are those of the individual and the individual alone and they do not reflect the opinions of TourUp. TourUp does not direct, is not an employer, has no control over, makes no representations, and does not guarantee the quality, safety or legality of the Service Provider or any SP Services provided. TOURUP EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY DAMAGE, LOSS OR INJURY ARISING OUT OF: ANY INTERACTIONS BETWEEEN SERVICE PROVIDER AND USER, THE ACTIVITIES OF ANY SERVICE PROVIDERS,AND ANY LOSS OR INJURY ARISING OUT OF ANY ACT OR OMISSION OF ANY SERVICE PROVIDER, ANY ERRORS OR OMISSIONS DURING ANY TOURS, AND USER’S USE OF ANY SP SERVICES. USER HEREBY ACKNOWLEDGES AND AGREES THAT WHILE TOURUP MAY PROVIDE INFORMATION ABOUT A SERVICE PROVIDER, BASED ON LOCATION, USER REVIEWS, PRICING, OR RELEVANCY;SUCH INFORMATION IS BASED SOLELY ON DATA THAT IS SUBMITTED BY THE SERVICE PROVIDER OR OTHER THIRD PARTIES, AND TOURUP PROVIDES SUCH INFORMATION SOLELY FOR THE CONVENIENCE OF ALL USER’S AND THIS INFORMATION IS NOT AN INTRODUCTION, ENDORSEMENT, OR RECOMMENDATION BY TOURUP OF ANY TOURS OR SERVICE PROVIDERS.TOURUP IS NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS,REPRESENTATIONS, WARRANTIES, BREACHES, NEGLIGENCE OR MISCONDUCT OF ANY SERVICE PROVIDERS OR FOR ANY PERSONAL INJURIES,DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM OR OTHERWISE ARISING FROM YOUR USE OF THE PLATFORM, A SERVICE PROVIDER’S USE OF ANY USER CONTENT, YOUR INTERACTIONS WITH ANY USER INCLUDING ALL SERVICE PROVIDERS, OR YOUR USE OF THESP SERVICES. ANY LEGAL REMEDY OR LIABILITY THAT YOU SEEK TO OBTAIN FOR ACTIONS OR OMISSIONS OF SERVICE PROVIDERS OR OTHER THIRD PARTIES WILL BE LIMITED TO A CLAIM AGAINST THE PARTICULAR SERVICE PROVIDER OR OTHER THIRD PARTIES WHO CAUSED YOU HARM AND YOU AGREE NOT TO ATTEMPT TO IMPOSE LIABILITY ON, OR SEEK ANY LEGAL REMEDY FROM TOURUP WITH RESPECT TO SUCH ACTIONS OR OMISSIONS.THE QUALITY OF THE TOURS AND SP SERVICES SCHEDULED THROUGH THEUSE OF THE PLATFORM IS ENTIRELY THE RESPONSIBILITY OF THE SERVICE PROVIDER WHO ULTIMATELY PROVIDES SUCH SP SERVICES TO YOU. YOU UNDERSTAND, THEREFORE, THAT BY USING THE TOURUP PLATFORM, YOUMAY BE EXPOSED TO USERS OR SP SERVICES THAT ARE POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL TO MINORS, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE TOURUP PLATFORM, AT YOUR OWN RISK. NOTHING IN THIS AGREEMENT OR THE TOURUP PLATFORM CONSTITUTES, OR IS MEANT TO CONSTITUTE, ADVICE OF ANY KIND. BY USING THE TOURUP PLATFORM, YOU AGREE THAT THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT ARE REASONABLE.
13. Background Checks. TourUp may at its discretion conduct background checks on Service Providers by usingthird party background check services. However, You should exercise caution and common sense to protect Your personal safety and property, just as You would when interacting with any persons that are new and unknown.
14. Service Providers. Users agree to treat Service Providers respectfully and in a lawful manner, to provide a safe and appropriate working environment for Service Providers in compliance with all applicable laws and regulations, and to provide reasonable cooperation to ServiceProvider so that they may supply any SP Services agreed upon. Users acknowledge that their selected Service Provider may be unavailable from time to time and TourUp bears no liability in regards to their unavailability.
15. Payments. Users may be obligated to pay in advance for the SP Services they select via theTourUp Platform. Prior to the scheduled Tour, we will charge the User's credit card in accordance with the amount agreed upon between Service Provider and User. TheUser hereby agrees to pay for all costs, fees, and expenses listed when booking any SPServices for a specific Tour. All payments by Users for any SP Services must be made through the TourUp Platform. User authorizes TourUp or its third party payment processors to charge the credit card on file in the User's account for such amounts listed. Please be aware that we use third party payment processors to process our credit card information. All information that You provide in connection with a purchase or transaction with the SP Services must be accurate, complete, and current. You agree to pay all charges incurred by Users of Your credit card, debit card, or other payment method used in connection with a purchase or transaction with TourUp at the prices in effect when such charges are incurred. We retain the right, in our sole discretion, to place a hold on the User's credit card for a completed Tour. Where there is an agreement between a User and a Service Provider to modify, extend, shorten, change or reschedule a Tour, the User bears the responsibility for notifying TourUp, and paying or reducing any additional fees associated with such changes. Users must notifyTourUp through the TourUp Platform or by contacting us through your account dashboard. While we will use commercially reasonable efforts to ensure the security of all credit card and all other personal information, we expressly disclaim any liability for any damage that may result should any information be released to any third parties, andYou agree to hold us harmless for any damages that may result therefrom.
16. Tour Cancellations and Refunds. Users wishing to cancel a confirmed Tour booking shall have ten (10) minutes (“GracePeriod”) to cancel a booked Tour from the time that a Service Provider confirms a Tour request. Where a confirmed Tour booking is cancelled within the Grace Period by aUser or Service Provider, a full refund shall be issued to the User’s account. Upon the expiration of the Grace Period, no refunds shall be provided to User for any confirmed Tours cancelled by User. Once a cancellation request is received by TourUp, TourUp will process the request and refund any applicable payments minus any payment processing and transaction fees. As Service Provider is an independent contractor,User agrees that aside from issuing a refund to User for any qualifying Tour bookings,TourUp bears no additional liability to User for any Tours cancelled by Service Provider.
17. Non-Circumvention. User acknowledges and agrees that in order for TourUp to make the Platform available, it must receive fees for all SP Services booked. In consideration for making the Platform available to User, User agrees that for a period of twelve (12) months following the moment You book a Service Provider or use any SP Services, You must use thePlatform as Your exclusive method to request, initiate, and pay for any SP Services that involve the Service Provider identified or used on the Platform, whether directly or indirectly. User may only opt out of the non-circumvention by paying an opt-out fee offive hundred ($500) US dollars. You agree to notify TourUp immediately if another person improperly contacts You or suggests making or receiving payments outside of the Platform.
18. Termination. You may cancel Your account at any time via the TourUp dashboard or contacting us through their account dashboard. Please be aware that upon termination of Your account, access to portions of our Platform may be become immediately disabled.Additionally, where a Tour has been confirmed You shall owe any additional fees pertaining to such confirmed Tour. Termination of this Agreement does not relieve User from any obligation to pay TourUp. Upon termination You will not be entitled to any refunds or proration of any fees paid except as stated in this Agreement. Additionally,You will be required to pay any due and owing outstanding fees for any SP Services provided by a Service Provider. We may terminate Your account or this Agreement withYou if we determine that: (1) You have violated any applicable laws while using ourPlatform; (2) if You have violated this Agreement or any other of our Platform policies; (3) if Your account has remained inactive for an extended period of time; or (4) if we believe that any of Your actions may harm TourUp, at our sole decision or discretion. In the event of termination, we will strive to provide You with a timely explanation; however, we are not required to do so. Where termination has occurred, portions of thisAgreement shall survive and remain in full force as stated in the “Survival” section of this Agreement.
19. Taxes. Depending on the laws of Your jurisdiction You may be taxed for any payments.Therefore, at the time of payment we may collect all applicable taxes related to Your use of the Platform. In the event that we do not collect the applicable taxes, You agree that You are still responsible for any applicable taxes. Although no taxes may be collected by us You agree that You will pay any applicable taxes or fees to the tax agencies having jurisdiction over You.
20. Chargebacks. If we believe that You have participated in a fraudulent chargeback we will pursue our claims against You to the fullest extent allowed by law. In the event that we believe that a User has submitted a fraudulent chargeback, we will forward Your information to the applicable law enforcement agency and Your fraudulent chargeback may result in either a civil fine or jail time.
21. Idea Submission. TourUp or any of its employees do not accept or consider unsolicited ideas, including but not limited to ideas relating to processes, technologies, product enhancements, or product names. Please do not submit any unsolicited ideas, content, artwork, suggestions, or other works (“Submissions”) in any form to TourUp. The sole purpose of this policy is to avoid potential misunderstandings or disputes when TourUp’s products might seem similar to ideas You submitted to TourUp. If, despite our request that You not send us Your ideas, You agree to the following: (1) Your Submissions and their contents will automatically become the property of TourUp, without any compensation toYou; (2) TourUp may use or redistribute the Submissions and their contents for any purpose and in any way; (3) there is no obligation for TourUp to review the Submission; and (4) there is no obligation to keep any Submissions confidential.
22. Intellectual Property. The name “TourUp,” the design of the TourUp Platform along with TourUp created text, writings, images, templates, scripts, graphics, interactive features and the trademarks, marks and logos contained therein ("Marks"), are owned by or licensed to TourUp. TheMarks are subject to copyright and other intellectual property rights under US laws and international conventions. TourUp reserves all rights not expressly granted in and to thePlatform. You agree to not engage in the use, copying, or distribution of the Marks or anything else contained within the Platform unless we have given You express written permission. All rights not expressly granted are hereby reserved.
23. Representations and Warranties. THE PLATFORM AND ALL SP SERVICES ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER TOURUP, NOR ANY OF THEIR EMPLOYEES,MANAGERS, OFFICERS, ASSIGNS OR AGENTS MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESSOR IMPLIED, AS TO: (A) THE PLATFORM; (B) ANY INFORMATION PROVIDED VIATHE PLATFORM INCLUDING TOURS, USER CONTENT, OR ANY OTHER INFORMATION; (C) ANY USERS, TOURS, OR SP SERVICES OR (D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO TOURUP OR VIATHE PLATFORM. IN ADDITION, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS. TOURUP MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF ANY USERS OR SERVICE PROVIDERS. WHERE A TOUR OR ANY SP SERVICE IS LISTED ON THIS PLATFORM, SUCH LISTING DOES NOT CONSTITUTE ANY ENDORSEMENT OR RECOMMENDATION BY TOURUP. TOURUP DOES NOT WARRANT THAT YOUR USE OF THE PLATFORM IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND TOURUP SPECIFICALLY DISCLAIMS ANY SUCH WARRANTIES.YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT TOURUP DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND CHECKS ON ANY USERS OR SERVICE PROVIDERS. BUT MAY DOSO AT OUR DISCRETION. IF WE CHOOSE TO CONDUCT SUCH CHECKS, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, THAT SUCH CHECKS WILL IDENTIFY PRIOR MISCONDUCT BY A USER OR GUARANTEE NO FUTURE MISCONDUCT BYA USER. TOURUP MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SP SERVICES, ANY SERVICE PROVIDERS, ANY USER, OR ANY STATEMENTS MADEBY USERS OR SERVICE PROVIDERS, OR RELIABILITY THEREOF. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU MAY COMMUNICATE OR INTERACT WITH INCLUDING ANY SERVICE PROVIDERS, USERS, OR OTHER THIRD PARTIES.YOU UNDERSTAND THAT TOURUP DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF PLATFORM OR TO REVIEW ANY TOURS OR SP SERVICES.
24. Limitation of Liability. IN NO EVENT SHALL TOURUP, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL,SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM (I) YOUR USE OR INABILITY TO USE THE PLATFORM OR ANY ERRORS, MISTAKES, OR INACCURACIES FOUND WITHIN THE PLATFORM, (II) ANY PERSONAL INJURY,DEATH, OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR PLATFORM, YOUR INTERACTIONS WITH OTHER USERS, OR FROM ANY ACTS OR OMMISSIONS FROM ANY SERVICE PROVIDERS, (III) ANY INTERRUPTION,MISINFORMATION, INCOMPLETE INFORMATION, OR CESSATION OF TRANSMISSION TO OR FROM OUR PLATFORM TO YOU, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE,WHICH MAY BE TRANSMITTED TO OR THROUGH OUR PLATFORM VIA A THIRD PARTY, (V) ANY FAILURES OR DISRUPTIONS WHETHER INTENTIONAL OR UNINTENTIONAL, (VI) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS RELATED TO YOUR USER CONTENT, (VII) ANY INJURY OR CLAIM THAT OCCURS OUT OF THE USE OF ANY USER CONTENT BY ANY SERVICE PROVIDERS OR (VIII) ANY POTENTIAL OR ACTUAL LOSS OR DAMAGE TO PERSON OR PROPERTY THAT MAY OCCUR WHILE USING THE PLATFORM. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. IN JURISDICTIONS THAT ALLOW A LIMITATION ON LIABILTY, YOU AGREE THAT OUR LIABILITY, IS NO MORE THAN THE AMOUNT YOU PAID VIA THE PLATFORM IN THE PAST SIX (6) MONTHS OR ONE-HUNDRED DOLLARS, WHICHEVER IS GREATER. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TOURUP AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by TourUp’s negligence or that of any of its officers, employees or agents; (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future. The foregoing limitations on liability and any other limitations of liability set forth herein are not applicable to residents of NewJersey. With respect to residents of New Jersey, TourUp shall not be liable for any damages arising out of Your access to or use of the Platform, unless such damages are the result of our negligent or reckless acts or omissions; provided, however, that we shall not be liable for consequential, indirect or punitive damages.
25. Release. THE PLATFORM IS ONLY A VENUE FOR CONNECTING USERS WITH SERVICE PROVIDERS. TO THE EXTENT THAT THE TOURUP PLATFORM CONNECTS AUSER TO A SERVICE PROVIDER FOR THE PURPOSES OF PROVIDING SP SERVICES, TOURUP WILL NOT BE RESPONSIBLE FOR ASSESSING THE SUITABILITY, LEGALITY OR ABILITY OF ANY SERVICE PROVIDERS AND YOU EXPRESSLY WAIVE AND RELEASE TOURUP FROM ANY AND ALL LIABILITY,CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE THIRD PARTY SERVICE PROVIDER. YOU RELEASE TOURUP AND ITS DIRECTORS,OFFICERS, EMPLOYEES AND ASSIGNS FROM ANY AND ALL CLAIMS, DEMANDS,OR DAMAGES (ACTUAL, DIRECT OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED,DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY DISPUTE WITH ANOTHER USER, SERVICE PROVIDER, OR OTHER THIRD PARTY. YOU EXPRESSLY WAIVE AND RELEASE ANY AND ALL RIGHTS AND BENEFITS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA (OR ANY ANALOGOUS LAW OF ANY OTHER STATE), WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIMOR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
26. Indemnity. You agree to release, defend, indemnify, and hold TourUp and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) Your breach of this Agreement, (ii) Your improper use of the TourUp Platform or any services provided, (iii) Your interaction with any User, Service Provider, or other third party including without limitation any injuries, losses or damages of any kind arising in connection with or as a result of such interaction, (iv) Your breach of any laws, regulations or third party rights. You agree that this indemnity extends to requiring You to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to choose counsel and settle with the party/parties making the claim and You shall be liable for the damages as though we had proceeded with a trial.
27. Intellectual Property and Copyrights Takedown Notice. We take copyright infringement very seriously. If You believe that any copyrighted material owned by You has been infringed upon by someone using our Platform, please send us a message which contains:• Your name.• The name of the party whose copyright has been infringed, if different from Your name.• The name and description of the work that is being infringed• The location on our Platform of the infringing copy.• A statement that You have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party whois legally entitled to do so on behalf of the copyright owner) and is not other wise permitted by law.• A statement that You swear, under penalty of perjury, that the information contained in this notification is accurate and that You are the copyright owner or have an exclusive right in law to bring infringement proceedings with respect to its use.You must sign this notification and send it to our Copyright Agent email@example.com or to our mailing address listed on our Platform, please notify us with the following header “Attn: Copyright Agent”Counter NoticeIn the event that You receive a notification from TourUp stating content posted by You has been subject to a DMCA takedown, You may respond by filing a counter-noticepursuant to the DMCA. Your counter-notice must contain the following:• Your name, address, email and physical or electronic signature.• The notification reference number (if applicable).• Identification of the material and its location before it was removed.• A statement under penalty of perjury that the material was removed by mistake or misidentification.• Your consent to the jurisdiction of a federal court in the district where You live (ifYou are in the U.S.), or Your consent to the jurisdiction of a federal court in the district where Your service provider is located (if You are not in the US).• Your consent to accept service of process from the party who submitted the takedown notice. Please be aware that we may not take any action regarding Your counter-notice unlessYour notification strictly complies with the foregoing requirements. Please send this counter-notice in accordance with the Takedown notice instructions above.
28. Choice of Law. This Agreement shall be governed by the laws in force in the state of California. The offer and acceptance of this contract is deemed to have occurred in California.
29. Arbitration. This Agreement and any dispute arising out of or in connection with this Agreement (“Dispute”) will be governed as to all matters, including, but not limited to the validity, construction and performance of this Agreement, by and under the laws of the state of California, without giving effect to conflict of laws principles thereof. Binding ArbitrationYou agree that any dispute relating in any way to your use of the Platform shall be submitted to confidential binding arbitration. If there is a dispute about whether this arbitration provision can be enforced or applies to the Dispute, You and TourUp agree that the arbitrator will decide that issue. However, any claim that all or part of this ClassAction Waiver and/or PAGA Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.Arbitration under this Agreement is under the Federal Arbitration Act which governs the interpretation and enforcement of this provision. The arbitration will be administered byAAA in accordance with the Consumer Arbitration Rules (the “Rules“) then in effect, except as modified here. Arbitration shall be conducted by one (1) arbitrator as selected pursuant to the Rules; the arbitrator's award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. The location of the arbitration shall be Irvine, CA or a location agreed upon by the parties. Where a Dispute does not exceed $15,000 such Dispute shall be arbitrated solely via pleadings and documents. Each party shall be responsible for their own arbitration fees and costs.To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class action proceedings or otherwise. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related toor connected with the use of the Platform or this Agreement must be filed within one (1)year after such claim or cause of action arose or be forever banned (the foregoing time limitation is not applicable to residents of New Jersey). This arbitration provision does not apply to users located outside of the United States. In the event that the law does not permit the above mentioned dispute to be resolved through arbitration, you agree that any actions shall be brought solely in a court of competent jurisdiction located within or otherwise nearest to Orange County, CA. For a copy of the Rules, please visitwww.adr.org or by calling the AAA at 1–800–778–7879. Opt-Out User has the right to opt out of binding arbitration within thirty (30) days of the date You first accepted this Agreement by notifying us via mail at 5405 Alton Parkway, Suite A,Irvine, CA 92604. In order to be effective, the opt out notice must include Your full name, any account information, and must clearly indicate Your intent to opt out of binding arbitration. If You have decided to opt-out of Binding Arbitration, all Disputes after an attempt at Mediation shall be heard in a court of competent jurisdiction located within Orange County, CA.Exceptions to ArbitrationUser agrees that all Disputes shall be arbitrated, except for as provided above and as follows: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances such as, imminent danger or commission of a crime. Such claims shall be brought before a judicial proceeding in a court of competent jurisdiction located within Orange County, CA.
30. Class Action and Representative Action Waiver. YOU UNDERSTAND AND AGREE THAT YOU AND TOURUP MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOUAND TOURUP BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS,COLLECTIVE OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE FOREGOING, THIS SUBSECTION (B) SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST TOURUP, WHICH ARE ADDRESSED SEPARATELY. Notwithstanding any other provision of this Agreement, the Arbitration provisions or any associated rules or the, disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Disputes (defined below), the class, collective, and/or representative action on such Disputes must be litigated in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
31. PAGA Waiver. Notwithstanding any other provision of this Agreement including the arbitration clause, to the fullest extent permitted by law: (1) You and TourUp agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the California PAGA, both You and TourUp agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether You have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law)(collectively, “representative PAGA Waiver”). Notwithstanding any other provision of this Agreement, the arbitration section or the associated rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on any arbitration provisions or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the arbitration provisions; and (iii) any such representative PAGA or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Disputes to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Disputes, the parties agree that litigation of thoseDisputes shall be stayed pending the outcome of any individual Disputes in arbitration.
32. Relationship of Parties. TourUp provides a Platform which allows You to connect with independent third partyService Providers. TourUp is not the employer of any Service Provider. You acknowledge that we do not supervise, direct, or control the Service Provider, its performance of a Tour, or SP Services performed in any manner. A Service Provider provides services to You directly as an independent contractor, and is not an employee, joint venturer, partner, agent, or franchisee of TourUp for any purpose whatsoever and does not represent TourUp and has no authority to bind TourUp to any agreements.
33. Force Majeure. You agree that we are not responsible to You for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
34. Severability. In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.If two or more provisions of this Agreement or any other agreement You may have withTourUp are deemed to conflict with each other’s operation, You agree that TourUp shall have the sole right to elect which provision remains in force. This contract is mutually drafted by and between the parties.
35. Non-Waiver. We reserve all rights permitted to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
36. Survival. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, content provisions, payment provisions, arbitration, class action and representative action waivers, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
37. Assignment. You may not assign Your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.
39. Amendments. We may amend this Agreement from time to time. When we amend this Agreement, we will update this page and indicate the date that it was last modified or we may emailYou. You may refuse to agree to the amendments, but if You do, You must immediately cease using our Platform.
40. California Users. Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about TourUp must be sent to our agent via your account dashboard or by email at firstname.lastname@example.org. Lastly, California Users are also 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 1625 North MarketBlvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
41. Export Controls. The Platform and the underlying information and technology may not be downloaded or otherwise exported or re-exported (1) into (or to a national or resident of) any country to which the U.S. has currently embargoed goods; or (2) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Platform, you agree to the foregoing and 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, and that you will otherwise comply with all applicable export control laws.
42. Non-Affiliation. The Platform may be offered on the Google Play or IOS App store (“Third Party AppStores”). TourUp is not affiliated with any Third Party App Stores listed in thisAgreement. Where displayed, the Third Party App Store names, are used for descriptive purposes only, the Third Party App Store names and images are owned by that respective company and its respective licensors, all rights are reserved.
43. Electronic Communications. The communications between You and TourUp use electronic means, whether You visit the Platform or send TourUp e-mails, or whether TourUp posts notices on the Platform or communicates with You via e-mail. For contractual purposes, You (1) consent to receive communications from TourUp in an electronic form; and (2) agree that all terms, conditions, agreements, notices, disclosures, and other communications that TourUp provides to You electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect Your statutory rights.