Last Revised January 22, 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.
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.
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
5. Your Warranty
You represent and warrant that (i) you are at least 18 years of age; (ii) you possess the legal authority to create a binding legal obligation; (iii) you will use the Services in accordance with the Terms; (iv) you will only use the Services to make legitimate reservations for you, another member of your traveling party, or another person for whom you are legally authorized to act; (v) you will inform such other person(s) that these Terms apply to their reservations; (vi) all information that you provide or that is provided on your behalf via the Services is accurate and complete; (vii) you will comply with all applicable laws, rules and regulations relating to your use of the Services; (viii) you will comply with any relevant third party terms and conditions relating to Travel booked through us and any incentive offers or Gift Cards; and (ix) if you have an online account, you will safeguard your account information and will be responsible for any use of your account by you and anyone other than you.
By reserving Travel through Upside for one or more Travelers besides yourself, you: (1) represent that you have supplied all other Travelers with a copy of these Terms; (2) you represent that you have full authority to accept these Terms on behalf of all the persons whose names appear on the Itinerary, including for Travelers who are not of legal age to agree to these Terms; (3) you agree to be responsible for any error in the accuracy of information they provide us regarding those Travelers.
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. Please refer to Partner’s website to view applicable terms and conditions.
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, by residents of the United States while in the United States, its territories and possessions, who have all the requisite power and authority to agree to the Terms.
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, 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 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 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 on 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 prior to booking travel to international destinations. For State Department 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 disinsect 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.
“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.
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 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, but you will not earn any gift cards or other rewards once your account has been deactivated. 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.
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 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 do not reflect prices that are not available to the general public, 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, is 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:
(i) use the Services or their contents for any commercial purpose; (ii) use the Services in a manner that violates any travel or similar policy related to your employment; (iii) make any speculative, false, or fraudulent reservation; (iv) access, monitor or copy any content or information of the Services using any robot, spider, scraper or other automated means or any manual process; (v) violate the restrictions in any robot exclusion headers on the Services or bypass or circumvent other measures employed to prevent or limit access to the Services; (vi) take any action that imposes, or may impose, in our discretion, an unreasonable or disproportionately large load on our infrastructure; (vii) deep-link to any portion of the Services for any purpose without our express written permission; (viii) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, or (ix) “frame”, “mirror” or otherwise incorporate any part of the Services into any other website, mobile application, product or service without our prior written authorization.
If we or a Supplier or Partner believe your booking or account shows signs of fraud, abuse or suspicious activity or non-compliance with the Terms, we may cancel any Travel or service reservations associated with your name, email address or account, remove or cancel any Gift Cards or incentive offer associated with such Travel or service reservations, and close any associated accounts. We also reserve the right to take any necessary legal action. To contest the cancellation of a booking or freezing or closure of an account, please contact our customer service department.
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 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.
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: (a) your breach of these Terms or the documents referenced herein; (b) your violation of any law or the rights of a third party; or (c) your use of the Services or purchase of any Travel with Upside.
5. Governing Law
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 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 are 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 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 One Thomas Circle, NW, 8th Floor, Washington DC 20005. The notice must be sent within the later of 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 chose 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 or privacy or other practices. It is up to you to take precautions to ensure that whatever links you select or software you download is 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.
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: (a) 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 (b) 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: (i) 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; (ii) any commercial material or content; (iii) 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 (a) any resale or commercial use of the Services or the Content therein; (b) the collection and use of any product or service listings, pictures or descriptions; (c) the distribution, public performance or public display of any Content; (d) modifying or otherwise making any derivative uses of the Services or the Content, or any portion thereof; (e) use of any data mining, robots or similar data gathering or extraction methods; (f) downloading (other than the page caching) of any portion of the Services, the Content or any information contained therein, except as expressly permitted on the Services; or (g) any use of the Services or the Content other than for their intended purposes. Any use of the Services or the Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the rights granted herein. These Terms and Conditions will not be construed as conferring any license to intellectual property rights.
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, One Thomas Circle, NW, 8th Floor, Washington DC 20005 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.
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.
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 Dow Jones & Company, Inc.) 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.
Notices will be given in writing as follows:
If to Upside: The Upside Travel Company, LLC, One Thomas Circle, NW 8th Floor, Washington DC 20005, 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
© 2019 The Upside Travel Company, LLC. All Rights Reserved.
Upside is a registered trademark of the Upside Commerce Group, LLC.