Terms and Conditions

UPSIDE TERMS AND CONDITIONS

IMPORTANT NOTICE: THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER AND AFFECT YOUR LEGAL RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW. PLEASE READ CAREFULLY.

Last Revised: October 10, 2017

Thank you for your interest in Upside™! We hope that you find our website easy to use and that you visit it often. Below you will find the terms and conditions related to the use of this website, Upside-branded websites and mobile applications (collectively, the “Website”).

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.

ACCEPTANCE

These terms and conditions and our current Privacy Policy upside.com/privacy-policy/, as well as the terms in developer.ean.com/terms/en which are incorporated by reference (collectively, the “Terms and Conditions” or “Terms”), govern your use of the Services. PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN IMPORTANT INFORMATION ABOUT LIMITATIONS OF LIABILITY AND RESOLUTION OF DISPUTES THROUGH ARBITRATION RATHER THAN IN COURT.

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.

USE OF THE SERVICE

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.

We retain the right at our sole discretion to deny access to anyone to the Services, at any time and for any reason.

ELIGIBILITY

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.

MODIFICATION OF THESE 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.

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.

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.

We accept credit card payments from Visa, Mastercard, American Express, and other credit or debit cards that we identify from time to time.

PROMOTIONAL OFFERS

Upside may offer promotional codes 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 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.

SUPPLIERS’ ACTS OR OMISSIONS

We act only as a sales agent for the Suppliers named in your itinerary. Therefore, we are not responsible for acts or omissions of the Suppliers or their failure to provide services or adhere to their own schedules. We neither guarantee nor insure the service to be provided by any Supplier and assume no liability for actions beyond its own control in connection with the service to be provided. We assume no responsibility for and will not be liable for any wrongful or negligent acts or omissions on the part of any other party not under our control.

Travel arrangements involving airline components are subject to supplemental price increases that may be imposed by the Supplier or government 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.

CANCELLATIONS & ALTERATIONS POLICIES

After reservations have been completed, most changes by Travelers are not possible due to our unique purchasing model. If a change is possible after the reservation has been booked it will be subject to a variable rebooking fee per change as specified at the time you book a reservation. Changes are subject to availability and could alter the price of the entire reservation in addition to our rebooking fee. Any change to the original Itinerary must be submitted to us in writing.

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. Otherwise, Upside 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.

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 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; or (viii) “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 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.

SUPPLIER RULES AND RESTRICTIONS

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. 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., EUR). We may provide an estimate in the default currency of your browser, or selected preferred currency if applicable. The actual amount charged by the carrier 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.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.

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.

Please check the Supplier’s specific terms and conditions. Some Suppliers have minimum age requirements. 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.

Hotel Suppliers 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 one-way tickets instead of a roundtrip ticket. Each one-way 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.

INTERNATIONAL TRAVEL

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. Some relevant information about international travel may be found at:

www.dot.gov, www.tsa.gov, www.faa.gov, https://travel.state.gov, www.treas.gov/ofac, or www.cbp.gov.

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 https://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: https://www.transportation.gov/office-policy/aviation-policy/aircraft-disi nsection-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.

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.

NOTICES

Notices will be given in writing as follows:

If to Upside:

Upside,
1602 L St NW,
Washington D.C. 20036,
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.

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.

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.

Upside and its respective Suppliers make no guarantees about the availability of specific products and services.

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: (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.

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.

DISPUTES

You agree to give us an opportunity to resolve any Claims by contacting our Customer Service at [email protected] If we are not able to resolve your Claims within 60 days, you may resort to the other alternatives described in this Section.

Arbitration and Class Action Waiver

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 1602 L St NW, Washington D.C. 20036. 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.

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.

AIR TRANSPORT

All airline Contracts of Carriage are available on their websites and at their office branches. 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.

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.

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 and Upside cannot confirm the accuracy of the pictures.

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, 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.

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.

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).

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.

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.

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.

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.

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.

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
1602 L Street NW
Washington, DC 20036
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).

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.

ASSIGNMENT

You may not assign its rights or obligations hereunder without our prior written consent.

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.

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.

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:

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.

SELLER OF TRAVEL DISCLOSURES

California: CST #2125640. Iowa: TAR #1297. Washington: UBI #603595087. Florida: ST #40365. Hawaii: #7174 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).

SERVICE HELP

For quick answers to your questions or ways to contact us, visit our Customer Service at www.upside.com or email us at [email protected] Or, you can write to us at:
Upside
1602 L ST NW
Washington, DC 20036
Attn: Customer Service
1-844-329-5613

©2018 Upside. All rights reserved.