Last Revised December 11, 2019
1. IMPORTANT NOTICE
THESE TERMS FORM A BINDING CONTRACT THAT INCLUDES A BINDING ARBITRATION
PROVISION, CLASS ACTION WAIVER, AND LIMITATIONS OF LIABILITY. THEY
AFFECT YOUR LEGAL RIGHTS AS DETAILED IN THE DISPUTES AND LIMITATION OF
LIABILITY SECTIONS BELOW. PLEASE READ CAREFULLY.
2. Definitions
The terms “Upside”, “we”, “us”, and “our” refer to The Upside Travel
Company, LLC, a Delaware limited liability company, and its subsidiaries
and affiliates. The terms “Traveler,” “you,” or “your” will apply to the
party using the Service for themselves or booking for others. The terms
“Gift Cards” or “Gift Card program” refer to the various gift, debit or
similar stored value cards, or other forms of non-gift card incentives
offered to Traveler at time of booking or redemption.
3. Services
The services and the information that we offer through the Website, by
telephone and otherwise (“Services”) are provided to assist customers in
researching and purchasing airfare, accommodations, ground
transportation or other third-party travel-related services (“Travel”)
with us or Travel suppliers and other vendors.
4. Terms of Agreement
These terms and conditions of this Agreement and our current Privacy
Policy (upside.com/privacy-policy/), as well as the terms in Supplier
Terms and Conditions (developer.ean.com/terms/en) which are incorporated
by reference (collectively, the “Terms and Conditions” or “Terms”),
govern your use of the Services. By accessing or using the Website and
using the Services, you accept the Terms without modification. If you do
not agree to the Terms, you may not use the Services. You and we agree
to conduct transactions electronically and to submit signatures via
electronic means.
5. Your Warranty
You represent and warrant that:
6. Partners
Upside may provide partner offers including co-branded Travel programs
or Services with other companies (each a “Partner”). Partner offers are
subject to these Terms, as well as any additional terms and conditions
of such Partner. Partners will also offer different data security and
data privacy protections for your information. Please refer to Partner’s
website to view applicable terms and conditions and the privacy policy
of that Partner.
7. Credit Cards
We accept credit card payments from Visa, Mastercard, American Express,
and other credit or debit cards that we identify from time to time.
8. Our Discretion
We retain the right at our sole discretion to deny access to anyone to
the Services, at any time and for any reason.
9. Void Where Prohibited by Law
The Services offered by Upside for purchase are available, except where
prohibited by law.
10. Modifications
These Terms may be amended or modified by us at any time without notice,
so it is important that you review them regularly (the date at the
beginning of this document will denote when the last update was made).
Any modifications or amendments to the Section below entitled “Disputes”
will be made in accordance with the process set forth in that Section.
1. Your Upside Travel Reservation
The terms used in these Terms encompass transportation, accommodations,
and any other Travel or Travel-related products offered via the Service.
“Supplier” refers to any supplier, vendor or other provider of the
Travel or the Services offered in an Upside reservation. “Itinerary”
refers to the particular Travel plan for a specific trip, including
schedule, flight numbers, airports, routing, and specific brands of air,
rental car and hotel. All bookings of Travel on Upside are also subject
to the terms and conditions of the Suppliers. By placing a reservation
with Upside, you agree to abide by all the terms and conditions of the
applicable Supplier. Please refer to Supplier’s website to view
Supplier’s terms and conditions (and contact the relevant Supplier to
learn if additional Supplier terms and conditions apply). For hotels
booked via Travelscape LLC, you should view the Travelscape Affiliate
Program Agreement. If the Supplier’s terms and conditions conflict with
these Terms, these Terms apply with respect to your and the other
Travelers’ relationship with Upside.
2. Suppliers’ Acts or Omissions
We act only as a sales agent for the Suppliers named in your itinerary.
Therefore, we are not responsible for the acts, errors, omissions,
representations, warranties, data breaches, hacking or similar
cybersecurity incidents or failure to implement or maintain industry
standard data security protocols, breaches or negligence of the
Suppliers, their failure to provide services or adhere to their own
schedules, or for any personal injuries (including death), property
damage, or other damages or expenses resulting therefrom. We neither
guarantee nor insure the service to be provided by any Supplier and
assume no liability for actions beyond our own control in connection
with the service to be provided. We assume no responsibility for and
will not be liable for any acts, errors, omissions, representations,
warranties, breaches or negligence on the part of any other party not
under our control.
Upside is not responsible for losses due to cancelled flights, seats, or
changed flight itineraries. Airlines retain the right to adjust flight
times and schedules at any time. If an airline cancels or delays a
flight, you should work with the airline to ensure you arrive at your
destination on time. Upside will not provide any refund for Services
missed due to missed, cancelled or delayed flights, or other flight
irregularities. Airline flights may be overbooked. A person denied
boarding on a flight may be entitled to receive from the airline a
compensatory payment or other benefits, depending on airline rules and
applicable law.
3. Cancellation & Alteration Policies
After a reservation has been confirmed, changes or cancellations to that
reservation may be subject to change, rebooking and/or cancellation fees
and/or changes in fares from the applicable Suppliers per the terms of
your reservation. Changes are subject to availability and could alter
the price of the entire reservation charged by Upside, in addition to
the Supplier’s change, rebooking or cancellation fee for the altered
portion of the reservation.
Upside will use reasonable efforts to issue refunds, where applicable,
to the credit card used to purchase the relevant reservation, following
cancellations, changes or modifications made by the Traveler if the
airline, hotel or other vendor permits a refund as specified in their
terms and conditions. In the event of a cancellation, change or
modification is permitted, you understand that the price of the entire
reservation charged by Upside may be altered, in addition to the
Supplier’s change, rebooking or cancellation fee for the altered portion
of the reservation. Otherwise, Upside Travel and Services purchases are
non-refundable, and no refunds will be provided for cancelled, changed,
modified, or unused Travel or Services, regardless of the reason given
for said cancellation, change or modification, unless explicitly stated
at the time of your reservation.
California Residents only: Upon cancellation of any Travel where the
Traveler is not at fault and has not canceled in violation of any terms
and conditions agreed to by the Traveler, all sums paid to the seller of
Travel for Travel-related services not provided will be promptly paid to
the Traveler, unless the Traveler advises the seller of Travel in
writing, after cancellation. This provision does not apply where the
seller of Travel has remitted the payment to another registered
wholesale seller of Travel or a carrier, without obtaining a refund, and
where the wholesaler or provider defaults in providing the agreed-upon
transportation or service. In this situation, the seller of Travel must
provide the Traveler with a written statement accompanied by bank
records establishing the disbursement of the payment, and if disbursed
to a wholesale seller of Travel, proof of current registration of that
wholesaler.
4. Supplier Rules and Restrictions
Please check the Supplier’s specific terms and conditions. Some
Suppliers have minimum age requirements. All airline tickets are
non-transferrable. Name changes or adjustments are not allowed once
purchased. Airfare is only guaranteed once the purchase has been
completed and the tickets have been issued. Airlines and other Suppliers
may change their prices without notice, and therefore our prices are
subject to change without notice until booked and paid in full. However,
travel arrangements involving airline components are subject to
supplemental price increases that may be imposed by governments after
you have completed your purchase. You hereby consent to any such price
increases and authorize your credit or debit card to be used for them.
Suppliers have their own contracts covering cancellation penalties and
other terms and conditions, and you may be bound by those contracts
regardless of whether you receive notice of their terms. We reserve the
right to cancel your booking if full payment is not received as agreed.
Unless otherwise stated in the description of the offer, the following
will NOT be included in the advertised price for a reservation made on
Upside:
items of a personal nature such as incidentals, excess baggage charges,
airport taxes/entrance fees, port charges, foreign government departure
taxes, costs of passports or visas, inspection, customs, immigration and
naturalization fees, travel insurance, lost baggage and tour
cancellation, early check-in and check-out, tips and gratuities, and any
other activities or items not explicitly advertised as included in the
price of an Upside reservation.
Prices and fees for some flights may be in another currency (e.g.,
Euros). We may provide an estimate in the default currency of your
browser, or selected preferred currency, if applicable. The actual
amount charged by the Supplier may slightly differ due to varying
exchange rates applied by different card issuers, and your credit card
issuer may charge a conversion or transaction fee to process the
transaction. You are solely responsible for any such additional fees.
Additionally, booking international Travel may be considered to be an
international transaction by the bank or credit card company, since we
may pass on your payment to an international travel supplier. The
currency exchange rate and foreign transaction fee is determined solely
by your bank on the day that they process the transaction. If you have
any questions about these fees or the exchange rate applied to your
booking, please contact your bank.
Debit cards are not accepted by all Suppliers and some Suppliers may
require a minimum account balance. Suppliers may require you to sign
their liability waiver and various Supplier terms and conditions prior
to participating in the service or activity they offer. You understand
that any violation of any such Supplier’s rules and restrictions may
result in cancellation of your reservation(s), fees and other negative
consequences. Upside is not responsible for any costs that you incur as
a result of your failure to adhere to Supplier’s terms.
Suppliers (such as rental car agencies and hotels) may also require you
to present a credit card or cash deposit upon check-in to cover
additional expenses incurred during your stay. Such deposit is unrelated
to any payment received by us for your hotel booking.
Upside may offer customers the opportunity to book a reservation for a
combination of two or more tickets, such as two one-way tickets instead
of a roundtrip ticket. Each ticket is subject to its own rules,
restrictions, and fees. If one of these flights is affected by an
airline change (e.g. cancellation or rescheduling) that causes you or
the relevant Traveler to make changes to the other flight, you will be
responsible for any fees incurred for making changes to the unaffected
flight.
Federal law forbids the carriage of hazardous materials aboard aircraft
in your luggage or on your 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 radioactive
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 your luggage and certain smoking materials carried
on your person.
5. International Travel
When traveling internationally, passports are required and visas could
be required. Make sure that you have at least six months of time
remaining before expiration of your passport after your return date to
the U.S. Many countries require your passport to be valid for six months
beyond the date of entry. Please take a moment to verify the expiration
of your passport now to allow time to renew prior to departure if
necessary. You are solely responsible for ensuring that you meet any
national and foreign entry requirements, including visa and passports
and that your travel documents, such as vaccine certificates are in
order. Information about your destination country’s requirements may be
found at:
https://travel.state.gov/content/travel/en/international-travel/International-Travel-Country-Information-Pages.html.
WE BEAR NO RESPONSIBILITY IF YOU ARE REFUSED PASSAGE ON ANY AIRLINE,
TRANSPORT OR ENTRY INTO ANY COUNTRY DUE TO THE FAILURE ON YOUR PART TO
CARRY OR OBTAIN THE CORRECT DOCUMENTATION OR COMPLY WITH APPLICABLE
RULES AND REGULATIONS. IF FAILURE TO DO SO RESULTS IN FINES, SURCHARGES,
CLAIMS, FINANCIAL DEMANDS OR OTHER FINANCIAL PENALTIES BEING IMPOSED ON
US, YOU WILL BE RESPONSIBLE FOR INDEMNIFYING AND REIMBURSING US
ACCORDINGLY.
Although most travel, including travel to international destinations, is
completed without incident, travel to certain destinations may involve
greater risk than others. We have no special knowledge regarding unsafe
conditions, health hazards or weather extremes at locations to which you
may travel. You should review travel prohibitions, warnings,
announcements and advisories issued by the United States Government or
your government prior to booking travel to international destinations.
To review the United States Department of State travel warnings and
advisories, go to:
travel.state.gov/content/passports/en/alertswarnings.html. For foreign
health requirements and dangers, go to www.cdc.gov/travel/index.htm.
Although not common, most countries reserve the right to disinfect
aircraft if there is a perceived threat to public health, agriculture or
environment. The World Health Organization and the International Civil
Aviation Organization have approved the following disinsection
procedures: (1) spray the aircraft cabin with an aerosolized insecticide
while passengers are on board or (2) treat the aircraft’s interior
surfaces with a residual insecticide while passengers are not on board.
For more information, see:
www.transportation.gov/office-policy/aviation-policy/aircraft-disinsection-requirements.
BY OFFERING RESERVATIONS FOR TRAVEL TO PARTICULAR LOCATION, WE DO NOT
REPRESENT OR WARRANT THAT IT IS ADVISABLE OR WITHOUT RISK, AND UPSIDE IS
NOT LIABLE FOR DAMAGES OR LOSSES THAT YOU MAY INCUR AS A RESULT OF
TRAVEL.
6. Accommodations
“Accommodations” are any lodgings or living quarters afforded to
Travelers including, hotels, quarters in ships, motels, and resorts.
Upside arranges the Accommodations through third-party Suppliers and
retains no ownership or management interest in those Accommodations.
Upside does not guarantee the location or the amenities of the
Accommodations nor the performance of the third-party Suppliers. If any
issues arise, please contact the operators of the respective
Accommodations directly. Accommodations and living standards may vary
from country to country, and Upside makes no guarantees about the
conditions.
Room assignments are based on Accommodation availability and are at the
Accommodation Supplier’s discretion. If you have special requests
(including, bed types, preferences for smoking or nonsmoking rooms, a
specific room, particular bedding, floor location and pet
accommodations), you must directly contact the Accommodation Supplier
and verify that special requests can be met. Upside has no control over
which room an Accommodation Supplier will assign to you and cannot
guarantee special requests in advance of your booking.
Upon check-in, guests must present a valid ID and credit card or, in the
Accommodation Supplier’s discretion, debit card, in their name that is
consistent with the transactional details provided to Upside (the amount
of available credit required will vary by hotel).
If you are going to be delayed on your date of check in or find that you
cannot check in to your Accommodation on the date you requested, contact
the Accommodation to let them know. If you fail to check in to your
Accommodation on the day of your reservation, the remaining portion of
your reservation with the Accommodation Supplier may be canceled and you
may not be entitled to a refund, depending on the terms and conditions
of the applicable Accommodation.
7. Rental Cars
Vehicle rentals available through this Site are subject to standard
rental contracts of the car rental companies, which will be completed by
you at the time of pick-up of a vehicle. For pay later retail price
disclosed rental car reservation, Upside is not the merchant of record
and does not charge your credit card. Actual prices may vary depending
on special requests and items purchased at the counter. Pricing may
change if you pick-up, or drop-off the car at a different date, time or
location than you requested in your reservation or for other reasons at
the discretion of the rental car company. While you may request child
seats and other special requests, the requests are not guaranteed and
are provided at the discretion of the rental car company. At the time of
pick up, the driver will be required to present a valid driver’s
license, and a valid credit card in his/her name. Some locations also
accept debit cards; however, rental partners have different requirements
for customers who will only have a debit card at the time of pickup.
While our rental car partners strive to honor your request for car type
(economy, full size, SUV etc.), your requested car type is not
guaranteed to be available. Specific cars, makes and models are not
guaranteed and listed car makes and model are for example only. Car
fleet information including capacities is based on the latest
information provided to us by the supplier and is subject to change.
In connection with facilitating your pay now rental car transaction, we
will charge your method of payment, in addition to base rate, a charge
for Taxes and Fees (an amount that will always be disclosed to you
before you elect to proceed). This charge includes an amount to recover
the amount we pay to the rental car supplier in connection with your
reservation for taxes, fees and surcharges owed by the rental car
supplier including, without limitation, sales and use tax, excise tax,
value added tax, airport or facility taxes, surcharges or fees and/or
other similar taxes, surcharges or fees. The amount of this charge is
intended by us to be sufficient to cover the amount we may be required
to pay to a rental car supplier, and may be greater or less than the
amount we actually pay the rental car supplier in connection with your
reservation for taxes, fees and surcharges. The balance of the charge
for Taxes and Fees is a fee which we retain as part of the compensation
for our services and to cover the costs of your reservation, including,
for example, customer service costs and additional fees. The charge for
Taxes and Fees varies based on a number of factors, such as the amount
you pay to upside.com and the location at which you will pick-up your
car from the rental car supplier. The “Total Charges” that you will pay
to Upside for using our pay now rental car service will always be
disclosed to you before you submit your request.
We are not the vendor collecting and remitting taxes to the applicable
taxing authorities. The rental car companies, as vendors, bill all
applicable taxes to us and we pay over such amounts directly to the
vendors. Taxability and the appropriate tax rate and the type of
applicable taxes vary greatly by location.
In connection with facilitating your retail rental car transaction, we
will attempt to provide you, when the information is available, with a
breakdown of the estimated taxes, fees and surcharges that may apply to
your transaction. We will not charge you for these taxes, fees and
surcharges, but the car rental supplier will.
Pay Now
The following restrictions apply to rental car requests made using our
Pay Now services:
• Upside.com rental car reservations are non-changeable, non-endorsable
and non-transferable;
• A valid Driver’s License AND credit card or, in the rental car
company’s discretion, a debit card, which is consistent with the
transactional details provided to upside.com, must be presented when a
vehicle is picked-up at the designated location;
• When picking up the vehicle, a credit card or, in the rental car
company’s discretion, a debit card, will be required for a security
deposit and to pay for any additional ancillary charges (including
insurance, child seats, gas, etc.).
• All rentals will include Taxes, Fees, and Surcharges (“TFS”)
associated with the Time and Mileage (T&M) for the rental based on
the timing and pick-up/drop-off of the rental; and
• If you choose to add on a child seat, the charge for reserving
an infant seat varies by the rental company that accepts your request
and is over what you paid Upside for your reservation. These charges are
payable directly to the rental company.
8. Travelers With Special Needs Or Disabilities
If you have special needs (e.g., wheelchair accessible room, traveling
with seeing eye dog, etc.) you must directly contact all relevant
Suppliers ahead of time and verify that such special needs can be met.
We make no guarantees as to the ability of Supplier to meet any special
needs.
9. Pay Later Itineraries
For certain Itineraries, Travelers may be offered the opportunity to pay
for a portion of the Itinerary directly to the applicable Supplier (such
as hotel or car rental operators) at the time of arrival. If you select
the option to pay at the time of arrival, the applicable Supplier will
charge your credit card in the local currency at the time of arrival.
Please note that tax rates and foreign exchange rates could change in
the time between booking and arrival. In addition, the exchange rate
offered by your selected method of payment may differ from the exchange
rate offered by Upside at the time of booking. As a result, the final
cost of your booking may be higher than the price initially quoted by
Upside. In addition, your reservation remains subject to the terms and
conditions of the applicable Supplier, including all cancellation and no
show policies. In the event your reservation is subject to any
cancellation, no show or other charges, Upside reserves the right to
charge the card provided by you at the time of booking for all such
charges.
10. Upside Corporate Program
If you are registered with Upside as part of Upside’s corporate program,
you understand and agree that information related to your bookings and
use of the Website and Services may be shared with your
employer/company. In addition, as part of the Upside corporate program,
your company may delegate the ability to book travel and to edit your
profile information to your company’s program administrators or other
members of your company who as a result will have access to (and may
edit) your personal information used to book your travel and, by
agreeing to be part of the Upside corporate program, you are consenting
to their access to your information. If you provide any information or
data relating to any account, you represent and warrant that you have
the right to provide that data to Upside. Upside is not liable for any
errors or omissions in your profile information caused by travel booking
or profile editing by someone delegated by your company. If you leave
the company, you acknowledge and agree that your account with Upside
will be deactivated; your company will still have access to the trips
you booked but will no longer have access to your personal account and
its related information. Any trips you have previously booked will be
honored in accordance with all Upside terms. If your company is no
longer using Upside, all user accounts associated with your company may
be deactivated.
11. Promotional Offers
Upside may offer promotions or other discounts (“Promotions”) for the
purchase of Travel. Promotions vary and may have a minimum purchase
requirement. The use of any Promotions are subject to any applicable
limitations and additional terms and conditions included at the time of
such offer. Traveler may have a choice at the time of booking to receive
credits (“Credits”) for then-available incentives, Gift Cards or lower
Travel prices. Incentive offers, Gift Cards, and lower Travel price
options may be updated by Upside at any time. The Credits may not be
redeemable until after Travel has been completed. Credits will be
deposited into a virtual account with Upside, unless otherwise detailed
in your offer, which you can access on the Website. If you are eligible
for a Gift Card, you can redeem Credits for Gift Cards from a selection
of Upside’s participating retailers. Following redemption, we will email
a “virtual gift card” (consisting of a redemption code number) or
physical card to you, as specified at the time of redemption. All Gift
Cards and incentive offers are subject to the Gift Card supplier’s terms
and conditions of redemption and usage.
The value of any Gift Cards or other incentive offers may constitute
taxable income to you. Please consult your tax advisor, as we do not
provide tax advice. Upside reserves the right to require any Traveler to
use Credits as permitted above on no less than thirty (30) days’ written
notice in writing to the Traveler. If the Traveler does not use Credits
by the date specified in such notice, Upside reserves the right to issue
the Traveler a Gift Card from an issuer of its discretion for a face
value equal to the amount of such Credits.
We reserve the right to suspend or terminate any Promotion or a user’s
ability to participate in the Promotion for any time in our sole
discretion, including if we notice any activity that we believe is
abusive or fraudulent.
12. Retail Price Comparisons
We may provide the retail price or other similar comparative price
(“Retail Price”) of components of Travel offered on the Service. Retail
Prices represent prevailing prices offered by sources that Upside
believes to be reliable, at the time they are displayed, for the same or
comparable Travel reservation. Because certain Travel prices, such as
those for airfare, Accommodation, rental cars and other transportation,
are constantly changing, the Retail Prices displayed on our website may
be different than prices that might be available to you. Retail Prices
may not match discounted prices that are available only for certain
groups, such as those for corporate customers, military personnel,
students, children, senior citizens, and members of organizations such
as AAA and AARP, wholesaler fares, groups, and travel purchased through
“reward” programs.
13. Sort Determination
We offer a variety of options to help you find the right hotel, flight,
and car rental. The “sort” settings allow Travelers to order search
criteria such as location and price. If no options are selected, we
determine search results in the order of relevance to your search
criteria as follows:
• Flights: We measure and rank options based on factors such as: price,
travel duration, class of service, rate competitiveness, availability,
and brand preference.
• Lodging: We measure and rank options based on factors such as: price,
a property’s distance from a desired location, customer ratings, the
class of service, rate competitiveness, availability, and brand
preference.
• Car Rental: Our default sort order is primarily driven by price, but
we may consider other relevant factors such as pickup location and car
type.
• Packages: When combining several different travel products into a
vacation package, we use a combination of the above criteria outlined
above to determine the sort order.
• In all cases, we also may take into account the discount or the
compensation which we are paid by some Suppliers. We also look at the
historic activity of you and other users.
Additionally, we continually optimize our services to provide the best
experience to travelers. Accordingly, we may test different default sort
order algorithms from time to time.
14. Additional Pricing Terms
Upside expressly reserves the right to correct any pricing errors on the
Website and/or reservations made under an incorrect price. In such
event, if available, we will offer you the opportunity to keep your
reservation at the correct price or we will cancel your reservation
without penalty.
1. Prohibited Activities
The content and information on the Services, as well as the
infrastructure used to provide such content and information, are
proprietary to Upside and our Suppliers, Partners and providers. While
you may make limited personal copies of your Itinerary for Travel or
service reservations booked through the Services, you agree not to
otherwise modify, copy, distribute, transmit, display, perform,
reproduce, publish, license, create derivative works from, transfer, or
sell or re-sell any information, software, products or services obtained
from or through the Services. Additionally, you agree not to:
2. Limitation Of Liability
UPSIDE AND ITS SUPPLIERS AND PARTNERS WILL NOT BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE
DAMAGES OF ANY KIND, DAMAGES FOR ANY LOSS OF OPPORTUNITY OR OTHER
PECUNIARY LOSS, ARISING OUT OF YOUR ACCESS TO OR USE OF THE SERVICES, OR
WITH THE DELAY OR INABILITY TO ACCESS OR USE THE SERVICES EVEN IF UPSIDE
OR ITS RESPECTIVE SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES OR LOSSES. THE UPSIDE COMPANIES’ AND THEIR SUPPLIERS TOTAL
AGGREGATE LIABILITY TO THE TRAVELER FOR CLAIMS PERTAINING TO THE
SERVICES WILL NOT EXCEED THE TOTAL AMOUNTS PAID BY THE TRAVELER TO
UPSIDE.
UPSIDE AND ITS PARTNERS RETAIN NO OWNERSHIP INTEREST, MANAGEMENT, OR
CONTROL OF THE SUPPLIERS. TO THE FULLEST EXTENT PERMITTED BY LAW, UPSIDE
AND ITS PARTNERS DO NOT ASSUME LIABILITY FOR ANY INJURY, DAMAGE, DEATH,
LOSS, ACCIDENT OR DELAY DUE TO AN ACT OR OMISSION OF ANY THIRD PARTIES,
GOVERNMENTAL AUTHORITY, OR ACTS ATTRIBUTABLE TO YOU EVEN IF WE HAVE BEEN
ADVISED THAT SUCH DAMAGES WERE POSSIBLE OR PROBABLE.
THE LIMITATION OF LIABILITY IS AN ESSENTIAL CONDITION OF PROVIDING THE
SERVICES AND REFLECTS THE ALLOCATION OF RISK BETWEEN THE PARTIES. THE
LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY
LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS
ESSENTIAL PURPOSE. THE LIMITATIONS OF LIABILITY PROVIDED IN THESE TERMS
INURE TO THE BENEFIT OF UPSIDE AND ITS RESPECTIVE SUPPLIERS AND
PARTNERS.
3. Disclaimer Of Warranties
UPSIDE AND ITS RESPECTIVE SUPPLIERS AND PARTNERS MAKE NO REPRESENTATIONS
ABOUT THE SUITABILITY OF THE INFORMATION, SOFTWARE, PRODUCTS AND
SERVICES CONTAINED ON THE SERVICES FOR ANY PURPOSE, AND THE INCLUSION OR
OFFERING OF ANY PRODUCTS OR SERVICES ON THE SERVICES DOES NOT CONSTITUTE
ANY ENDORSEMENT OR RECOMMENDATION OF SUCH PRODUCTS OR SERVICES BY UPSIDE
OR ITS PARTNERS. ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES
ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND. UPSIDE
AND ITS RESPECTIVE SUPPLIERS AND PARTNERS DISCLAIM ALL WARRANTIES AND
CONDITIONS THAT THE SERVICES, ITS SERVERS OR ANY EMAIL SENT FROM UPSIDE
AND ITS RESPECTIVE SUPPLIERS AND PARTNERS ARE FREE OF VIRUSES OR OTHER
HARMFUL COMPONENTS. UPSIDE AND ITS RESPECTIVE SUPPLIERS HEREBY DISCLAIM
ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE,
PRODUCTS AND SERVICES, WHETHER EXPRESS OR IMPLIED.
Applicable law in your jurisdiction may not allow the exclusion of
implied warranties, so the above exclusions may not apply to you to the
extent so prohibited. The above exclusions are applicable in all states
and countries where allowed, including within the State of New Jersey.
Upside and its respective Suppliers and Partners make no guarantees
about the availability of specific products and services.
4. Indemnification
You agree to defend, indemnify and hold harmless Upside and its
respective Suppliers and Partners, and any of its or their respective
officers, directors, employees and agents, from and against any and all
third party claims, causes of action, demands, and associated
recoveries, losses, damages, fines, expenses (including reasonable legal
and other professional fees), penalties or other costs or expenses of
any kind or nature, arising out of or resulting from: (1) your breach of
these Terms or the documents referenced herein; (2) your violation of
any law or the rights of a third party; or (3) your use of the Services
or purchase of any Travel with Upside.
5. Governing Law
All disputes or claims relating in any way to the Services, the Terms,
any dealings with our customer service agents and our Privacy Policy
(“Claims”) will be governed by and construed exclusively in accordance
with the laws and decisions of the District of Columbia without giving
effect to its conflict of laws provisions.
6. Disputes
Any Claim between Upside and you arising under these Terms or in
connection with your use of the Services, other than Claims regarding
patents, copyrights, moral rights, trademarks and claims of piracy or
unauthorized use of the Services, if unresolved through informal
discussions, will be resolved by binding arbitration to be held in the
state in which you reside. For residents outside of the United States,
you agree that arbitration will be initiated in Washington, DC. This
includes any Claims you assert against us, our subsidiaries, Suppliers,
Partners, and credit card processors (which are beneficiaries of this
arbitration clause). To the extent allowed by applicable law, you agree
that you will bring any Claim within two (2) years from the date on
which such Claim or action arose or accrued or it will be irrevocably
waived. This provision is applicable in all states to the extent allowed
by applicable law, and specifically is applicable within the State of
New Jersey.
Arbitrations will be conducted by a single arbitrator, governed by the
Commercial Arbitration Rules and the Supplementary Procedures for
Consumer Related Disputes of the American Arbitration Association (AAA),
as modified by these Terms. The AAA’s rules are available at
www.adr.org.
If you seek less than $10,000 for your Claims, we will reimburse you for
AAA filing fees and will pay the arbitrator’s fees, unless the
arbitrator determines your Claims are frivolous. If your claim is solely
for monetary relief of $10,000 or less, and does not include a request
for any type of equitable remedy, you may choose to have an arbitration
conducted by telephone, based on written submissions.
You and Upside understand that, absent this mandatory provision, each
would have the right to sue in court and have a jury trial. In some
instances, the costs of arbitration could exceed the costs of litigation
and the right to discovery may be more limited in arbitration than in
court.
The arbitrator, and not any federal, state or local court or agency,
will have exclusive authority to resolve all Claims, whether sounding in
contract, tort, or otherwise and all disputes arising out of or relating
to the interpretation, applicability, enforceability or formation of
these Terms, including any claim that all or any part of these Terms is
void or voidable and whether a claim is subject to arbitration. The
arbitrator will be empowered to grant whatever relief would be available
in a court under law or in equity. The arbitrator’s award will be
written, and binding on the parties and may be entered as a judgment in
any court of competent jurisdiction.
You and we agree that if we make any change to this Section (other than
a change to any notice address or website link provided herein) in the
future, Upside will provide you with thirty (30) days’ notice of such
change before it is effective, and the change will apply prospectively
only to any claims arising after the 30th day.
You have the right to opt-out and not be bound by these arbitration
provisions by sending written notice of your decision to opt-out to
[email protected] AND by U.S. Mail to 4200 Wisconsin Ave NW #106-231,
Washington DC 20016. The notice must be sent within the later of thirty
(30) days of your first use of the Services or within 30 days of changes
to this section being announced on the Websites, otherwise you will be
bound to arbitrate any Claims. If you opt-out of these arbitration
provisions, Upside also will not be bound by them. If you do not
affirmatively elect to opt-out as described above, your use of the
Services will be deemed to be your irrevocable acceptance of these
Terms, including any changes.
If a Claim is brought that is found by a court to be excluded from the
scope of these arbitration provisions, Upside and you agree to waive any
trial by jury and to submit to the personal jurisdiction of the federal
and state courts located in Washington, DC with respect to any legal
proceedings that may arise in connection with this provision.
Upside and you agree that Upside and you will resolve any Claims on an
individual basis, and that any Claims brought under these Terms in
connection with the Services will be brought in an individual capacity,
and not on behalf of, or as part of, any purported class, consolidated,
or representative proceeding. Upside and you further agree that Upside
and you shall not participate in any consolidated, class, or
representative proceeding (existing or future) brought by any third
party arising under these Terms or in connection with the Services.
If any court or arbitrator determines that the class action waiver set
forth in this section is void or unenforceable for any reason or that
arbitration can proceed on a class basis, then the Claims will not be
subject to arbitration and must be litigated in federal court located in
Washington, DC.
7. Force Majeure
Upside will not be responsible for failure to perform any of its
obligations under these Terms during any period in which such
performance is prevented or delayed due to Force Majeure. “Force
Majeure” refers to any event beyond Upside’s reasonable control,
including severe weather, fire, flood, earthquakes, war, labor disputes,
World Health Organization’s advisories or alerts, Center for Disease
Control’s advisories and alerts, U.S. State Department’s advisories and
alerts, any order of any local, provincial or federal government
authority, interruption of power Services, terrorism or any other causes
beyond the control of Upside.
8. SMS Notice
If you choose to participate in any Upside alert or promotion that
includes the use of text messaging (either sending or receiving), Upside
will not charge you for the text messaging; however, standard message
and data rates may apply according to your wireless rate plan. Contact
your carrier for pricing plans and details. If you text us in error or
wish to unsubscribe, you may text STOP to 85548, or if you have
questions text HELP to 85548. You may also contact Customer Care at
1-855-252-2151 (open 24 hours a day, 7 days a week).
9. Marketing Materials And Illustrative Photos
Upside endeavors to illustrate the Services it offers using photographs
or illustrations. Photographs and illustrations appearing in
descriptions are for illustrative purposes only: they depict only an
approximation of the type or standard of such Services, and are not
contractual nor are they to be construed as guarantees of the conditions
of the Services you will receive. The images of the Services on the
Website and on other marketing materials are generally drawn from the
individual Supplier websites. Upside does not guarantee the accuracy of,
and disclaims all liability for any errors or other inaccuracies
relating to, the information and description of the Services displayed
on the Website.
10. Links To Third-party Sites
The Services may contain hyperlinks to websites operated by parties
other than Upside. We do not control such websites and are not
responsible for their contents, data security, or data privacy or other
practices. It is up to you to take precautions to ensure that whatever
links you select or software you download are free of such items as
viruses, worms, trojan horses, defects and other items of a destructive
nature. Our inclusion of hyperlinks to such websites does not imply any
endorsement of the material on such websites or any association with
their operators.
11. Software Available Via The Services
Any software that we make available to download from the Services
(“Software”) or through your mobile application store is the copyrighted
work of Upside or our respective Suppliers or Partners. Your use of such
Software is governed by the terms of the end user license agreement, if
any, which accompanies, or is included with, the Software (“License
Agreement”). You may not install or use any Software that is accompanied
by or includes a License Agreement unless you first agree to the License
Agreement terms. For any Software made available for download on or in
connection with the Services not accompanied by a License Agreement, we
hereby grant to you, the user, a limited, personal, non-exclusive,
nontransferable license to download, install and use the Software for
viewing and otherwise using the Services or accessing the content and
information available thereon (including price and availability of
Travel services) in accordance with these Terms and for no other
purpose.
Please note that all Software, including all HTML/XML code and Active X
controls contained on the Services, is owned by Upside, or our
respective Suppliers or Partners, and is protected by copyright laws and
international treaty provisions. Any reproduction or redistribution of
the Software is expressly prohibited, and may result in severe civil and
criminal penalties.
COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION
FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. THE
SOFTWARE IS WARRANTED, IF AT ALL, ONLY ACCORDING TO THE TERMS OF THE
LICENSE AGREEMENT.
If you are accessing or using the Services via a mobile device, you are
responsible for making all arrangements necessary to have connectivity
and are responsible for all charges from your service provider arising
out of the Services use of data. As further described in Upside’s
Privacy Policy, the Services will automatically transfer a small amount
of data as part of its normal operation. By using the Services, you
consent to the automatic collection of this information.
12. Reviews, Comments, Photos And Other Submissions
We appreciate hearing from you. We may offer the ability to post
reviews, comments and other items to the Website. You acknowledge and
agree that Submissions are non-confidential and non-proprietary. By
submitting content by electronic mail, postings on the Services or
otherwise, including any reviews, photos, videos, questions, or comments
(collectively, “Submissions”), you grant Upside and its respective
Suppliers and Partners, a worldwide, nonexclusive, royalty-free,
perpetual, transferable, irrevocable and fully sublicensable right to:
(1) use, reproduce, modify, adapt, translate, distribute, publish,
create derivative works from and publicly display and perform
Submissions throughout the world in any media, now known or hereafter
devised; and (2) use the name that you submit in connection with such
Submission. You expressly waive all “moral rights” that may subsist in
your Submissions. You also acknowledge that we may choose to provide
attribution of your comments or reviews at our discretion. We have no
obligation to post your comments. If would like to remove your name from
appearing in a Submission, please contact [email protected] If you do
not agree to these Terms, please do not provide us with any Submissions.
You are fully responsible for the content of your Submissions. You are
prohibited from posting or transmitting to or from the Services: (1) any
unlawful, threatening, libelous, defamatory, obscene, pornographic, or
other material or content that would violate rights of publicity or
privacy, copyright, trademark, patent or any other law; (2) any
commercial material or content; (3) any material or content that
contains a virus, bug or other harmful item. You will be solely liable
for any damages resulting from any violation of these restrictions and
any other harm resulting from your posting of content to the Services.
We may offer customers incentives to leave reviews (e.g. discount
coupon/entry into prize drawings, etc.). It is important to us that
reviews are impartial and honest, so we make these incentives available
to customers regardless of whether the review is positive or negative.
If you receive an incentive for such reviews, you must acknowledge that
incentive in your review, as required by law including through the
Federal Trade Commission’s Endorsement Guides.
13. Photo Submission Guidelines
All photos must be relevant to accommodation, restaurant, location, or
general travel experiences and be your own photos.
In addition to the prohibitions stated above for comments or other
submissions, the photo must not: 1) include photos or information about
children or any third parties without their express consent (or their
parent’s consent in the case of a child under 13 years of age) for the
display of their image by us or our Suppliers, Partners or other third
parties; 2) be from any other source or infringe the copyright,
trademark, or other property right of any third party; 3) include logos,
branding, promotional material, or any other content intended for
commercial purposes; or 4) contain viruses or other harmful code that is
either intended or may result in damage to the computers and systems of
Upside and our users.
We claim no ownership, affiliation with, or endorsement of any photos
that are submitted by end users through our sites.
14. Copyright And Trademark Notices
Unless otherwise indicated by us, the Services and all content and other
materials therein, including “Upside®”, all logos, designs, text,
graphics, pictures, information, data, software, files and the selection
and arrangement thereof (collectively, “Content”) are the proprietary
intellectual property of The Upside Travel Company, LLC or its
affiliates, and are protected by U.S. and international copyright,
trademark and other intellectual property laws. Other logos and product
and company names mentioned herein may be the trademarks of their
respective owners. We are not responsible for content on websites
operated by other parties.
If you are aware of an infringement of our brand, please let us know by
emailing us at [email protected]
You are hereby granted a limited, nonexclusive, non-sublicensable right
to access and use the Services and Content; however, such right is
subject to these Terms and Conditions and does not include
15. Copyright Complaints; Repeat Infringer Policy
In accordance with the Digital Millennium Copyright Act (“DMCA”) and
other applicable laws, we will terminate the account of users we deem to
be infringers. We may also, in our sole discretion, limit access to the
Services or terminate the accounts of any users who infringe any
intellectual property rights of others. If you believe that an account
holder or subscriber is an infringer, please provide information
sufficient for us to verify that the account holder or subscriber is an
infringer when filing your notice. If you believe that anything on the
Services infringes any copyright which you own or control, you may file
a notification of infringement with our designated agent as set forth
below: The Upside Travel Company, LLC, 4200 Wisconsin Ave NW #106-231,
Washington DC 20016 Attn: Upside Legal Department, DMCA Complaints.
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper
notification. You should also note that if you knowingly make any
material misrepresentation in your notification, you will be liable for
any damages, including costs and attorneys’ fees, incurred by us or the
alleged infringer as the result of our reliance upon such
misrepresentation. Notices and counter-notices with respect to the
Services should be sent to us by email at [email protected] for the
fastest resolution. You may also send us your notice using the contact
information above.
We will review and address all notices that comply with the requirements
above. If we remove or disable access in response to such a notice, we
may notify the owner or administrator of the affected site or content so
that he or she can make a counter notification.
We suggest that you seek legal counsel before filing a notice. Any
misrepresentations in your notice regarding whether content or activity
is infringing may expose you to liability for damages (including costs
and attorneys’ fees).
16. Patent Notices
One or more patents owned by Upside may apply to the Services and to the
features and services accessible via the Services. Portions of the
Services operate under license of one or more patents. Other patents are
pending.
17. Assignment
You may not assign its rights or obligations hereunder without our prior
written consent.
18. Severability And Survivability
If any provision, or portion of a provision, in these Terms is deemed
unlawful, void or unenforceable, then it will be modified to become
valid and enforceable in a manner that comes closest to expressing the
intention of the original provision. Any determination that a provision
is unlawful, void or unenforceable will not affect the validity and
enforceability of any remaining provisions in these Terms.
Any provision of these Terms that imposes or contemplates continuing
obligations on a party will survive the expiration or termination of
these Terms.
19. Entire Agreement, Waiver, Etc.
These Terms constitute the entire understanding and agreement of the
parties with respect to the subject matter covered by them, and
supersede all prior and contemporaneous understandings and agreements,
whether written or oral. No terms contained on any proposal,
acknowledgment, or other document will be effective with respect to
affecting the terms hereof. No delay or failure by either party to
exercise or enforce at any time any right or provision hereof will be
considered a waiver of such party’s rights thereafter to exercise or
enforce each and every right and provision hereof.
20. General
Use of mapping available on the Services is governed by the Mapbox Terms
of Use and Privacy Policy. Mapbox reserves the right to change their
Terms of Use and Privacy Statements at any time, at their sole
discretion. Please click below for additional information:
mapbox.com/tos, mapbox.com/privacy.
You agree that no joint venture, partnership, or employment relationship
exists between you and Upside as a result of these Terms or use of the
Services.
Upside’s Partners (including Flight Centre Travel Group) and their
respective subsidiaries are third-party beneficiaries of these Terms.
Upon your acceptance of the Terms, each Partner will have the right (and
will be deemed to have accepted the right) to enforce the Terms against
you as a third party beneficiary thereof. There are no other third-party
beneficiaries of the Terms.
Our performance of these Terms is subject to existing laws and legal
process, and nothing contained in these Terms limits our right to comply
with law enforcement or other governmental or legal requests or
requirements relating to your use of the Services or the information
provided to or gathered by us with respect to such use.
Fictitious names of companies, products, people, characters, or data
mentioned on the Services are not intended to represent any real
individual, company, product, or event.
Any rights not expressly granted herein are reserved.
21. Seller of Travel Disclosures
• California: CST #2125640.
• Florida: ST #40365.
• Hawaii: #7174.
• Iowa: TAR #1297.
• Washington: #603595087.
California law requires certain sellers of travel to have a trust
account or bond. This business has a bond issued by Suretec Insurance
Company in the amount of $10,000. We are NOT a participant in the Travel
Consumer Restitution Fund (TCRF). Registration as a seller of travel in
California does not constitute the state’s approval.
22. Notices
Notices will be given in writing as follows:
If to Upside: The Upside Travel Company, LLC, 4200 Wisconsin Ave NW
#106-231, Washington DC 20016, ATTN: Legal. Notice may also be sent via
email (followed by notice as provided above) to: [email protected]
If to Traveler: to the email or physical address provided for Traveler
during the registration or booking process.
Notice will be deemed given: if sent by electronic mail, upon
confirmation of receipt provided subsequent certified mail notice is
provided as specified above; or if sent by certified, registered
pre-paid mail or by UPS or FedEx overnight service, three (3) days after
the date of mailing.
23. Service Help
© 2020 The Upside Travel Company, LLC. All Rights Reserved.
Upside is a registered trademark of the The Upside Travel Company, LLC.