Last modified: March 8, 2023|Save as PDF
These Terms of Service, together with the documents referenced herein (collectively the "Terms"), apply to the mobile application named "KeepUpp" ("KeepUpp" or the "App"). KeepUpp SRL ("we", "us" or "our") permits you to use the App subject to these Terms and the applicable law. You ("you", the App user) may only utilize the App in accordance with these Terms.
IMPORTANT NOTICE: If you live in the European Region, KeepUpp SRL provides the Services to you under specific Terms of Service and Privacy Policy. We provide the services, including the App, to you ("Services") unless you live in a country or territory in the European Economic Area (which includes the European Union) and any other included country or territory (collectively referred to as the "European Region").
IF YOU ARE A KeepUpp USER LOCATED IN THE UNITED STATES OR CANADA, OUR TERMS CONTAIN A BINDING ARBITRATION PROVISION, WHICH STATES THAT, EXCEPT IF YOU OPT OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES, KeepUpp COMPANIES AND YOU AGREE TO RESOLVE ALL DISPUTES (DEFINED BELOW) THROUGH BINDING INDIVIDUAL ARBITRATION, WHICH MEANS THAT YOU WAIVE ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND THAT YOU WAIVE YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR REPRESENTATIVE ACTIONS. PLEASE READ THE "SPECIAL ARBITRATION PROVISION FOR UNITED STATES OR CANADA USERS" SECTION BELOW TO LEARN MORE
Our services are provided by, and you're contracting with KeepUpp SRL incorporated and operating under the laws of Belgium (VAT Number: BE0775.702.664), having its registered office at Drève Richelle 161 M/57, 1410 Waterloo, Belgium.
2.1Please read these Terms carefully before downloading, installing or using the App. By downloading, installing, accessing, browsing or using the App, you accept and agree to these Terms which bind you legally. The Terms are entered into for the benefit of KeepUpp SRL and its affiliated companies (the "KeepUpp Companies") who may each enforce against you. In order to provide our Services (as defined below) through the App, we need to obtain your agreement to our Terms. If you do not agree to these Terms you are not permitted to use the App and you must immediately cease downloading, installing or using the App.
2.2If you experience any technical issues with the App, or you would like to contact us regarding these Terms, you may contact us by sending an email to contact@keepupp.com.
2.3In order to use the App, you must have a compatible device. The App is not compatible will all devices and it is your responsibility to use a compatible device with the App. Any compatible device to which you download the App will be known as a "Device" for the purposes of these Terms. You confirm that you either own the applicable Device or if not owned by you, you have obtained permission to install and use the App on such Device. You accept responsibility for any use of the App on or in relation to such Device, whether or not such Device is owned by you, or such use was made by you.
3.1These Terms apply to the App, including any updates or supplements thereto. We may change or revise these Terms from time to time in our sole discretion, with or without notice to you. You are bound by any such revisions and should therefore periodically visit this page to review the then-current terms and conditions. Your access and use will be subject to the most current version of the Terms. Your use of the App after such revised Terms are made available will signify your acceptance of such revised Terms and your agreement to be bound by them.
3.2From time to time, updates to the App may be made available. Depending on the update, you may not be able to use the App until you have installed the latest version.
3.3You confirm that you are of legal age in your country to form a binding contract and hereby agree to be bound by these Terms. If you are an employee or other representative of a business or other entity and you are using the App in your representative capacity, then you hereby represent that you are authorised to use the App as a representative of the entity and agree to these Terms on behalf such entity.
4.1Our Services may allow you to access, use, or interact with third-party websites, apps, content, other products and services ("Third-Party Sites"). For example, you may choose to use third-party data backup services (such as iCloud or Google Drive) that are integrated with our Services or interact with a share button on a third-party's website that enables you to send information to your KeepUpp contacts. Please note that these Terms and our Privacy Policy apply only to the use of our Services. When you use Third-Party Sites, their terms and privacy policies will govern your use of those products or services. Third Party Sites are not under our control, and you agree that we are not responsible for and do not endorse or monitor their content or privacy policies (if any). We expressly disclaim any liability for loss or damage sustained by you as a result of the accessing and use of Third-Party Sites.
5.1Registration. You must register for our Services using accurate information, provide your current mobile phone number, first name and last name, gender, and, if you change it, update your mobile phone number using our in-app change number feature. In order to access the App, you must have a username that you have created. You agree to receive text messages and phone calls (from us or our third-party providers) with codes to register for our Services.
5.2Address Book. In order to use the App, you must use the contact upload feature included in the App and provide us with the phone numbers in your mobile address book on a regular basis, including those of both the users of our Services and your other contacts. If you do not use the contact upload feature included in the App and provide us with the phone numbers in your mobile address book on a regular basis, you will not be able to use the App.
5.3Age. You must be at least 13 years old to register for and use our Services (or such greater age required in your country or territory for you to be authorized to register for and use our Services without parental approval). In addition to being of the minimum required age to use our Services under applicable law, if you are not old enough to have authority to agree to our Terms in your country or territory, your parent or guardian must agree to our Terms on your behalf. Please ask your parent or guardian to read these Terms with you.
5.4Devices And Software. You must provide certain devices, software, and data connections to use our Services, which we otherwise do not supply. In order to use our Services, you consent to manually or automatically download and install updates to our Services. You also consent to our sending you notifications from time to time, as necessary to provide our Services to you.
5.5Fees And Taxes. You are responsible for all carrier data plans, Internet fees, and other fees and taxes associated with your use of our Services.
6.1We care about your privacy. Our Privacy Policy describes our data (including message) practices, including the types of information we receive and collect from you, how we use and share this information, and your rights in relation to the processing of information about you.
6.2The App include an "Unshare" function which allow you to delete your identification data you sent via the App to other KeepUpp users on the devices of these users. By using the App, you similarly acknowledge and agree that KeepUpp users can delete their identification data they sent you on your device by using the "Unshare" function included in the App.
7.1To use certain Services, you need to create an account. You agree to provide us with accurate, complete, and updated information for your account. You are responsible for any activity that occurs in your account. So it's important that you keep your account secure. One way to do that is to select a strong password that you don't use for any other account. If you think that someone has gained access to your account, please immediately reach out to our helpdesk. Any software that we provide you may automatically download and install upgrades, updates, or other new features. You may be able to adjust these automatic downloads through your device's settings. You agree not to create any account if we have previously removed or banned you or your account from any of our Services, unless we consent otherwise.
7.2When creating an account, you will have to define a "username". We do not guarantee that all potential usernames will be available or permitted. We reserve the right to prohibit the use of usernames which (a) are illegal, obscene, defamatory, threatening, intimidating, harassing, hateful, racially or ethnically offensive, or instigate or encourage conduct that would be illegal or otherwise inappropriate, such as promoting violent crimes, endangering or exploiting children or others, or coordinating harm; (c) involve publishing falsehoods, misrepresentations, or misleading statements; (d) impersonate someone, private companies, or public institutions; or (e) which refer to notorious people.
7.3You acknowledge and agree that if you add or modify data of your KeepUpp contacts in your native contact app, these data will be automatically deleted after a period of 24 hours. If you want to add or modify data of your KeepUpp contacts in your native contact app, you must create new contacts of the concerned KeepUpp contacts in your native contact app, and insert the addition of modification in these personal contacts.
8.1Our Terms And Policies. You must use our Services according to our Terms and posted policies. If you violate our Terms or policies, we may take action with respect to your account, including disabling or suspending your account and, if we do, you agree not to create another account without our permission. Disabling or suspending your account will be in accordance with the "Termination" section below.
8.2Legal And Acceptable Use. You must access and use our Services only for legal, authorized, and acceptable purposes. You will not use (or assist others in using) our Services in ways that: (a) violate, misappropriate, or infringe the rights of KeepUpp Companies, our users, or others, including privacy, publicity, intellectual property, or other proprietary rights; (b) are illegal, obscene, defamatory, threatening, intimidating, harassing, hateful, racially or ethnically offensive, or instigate or encourage conduct that would be illegal or otherwise inappropriate, such as promoting violent crimes, endangering or exploiting children or others, or coordinating harm; (c) involve publishing falsehoods, misrepresentations, or misleading statements; (d) impersonate someone; (e) involve sending illegal or impermissible communications such as bulk messaging, auto-messaging, auto-dialing, and the like; or (f) involve any non-personal use of our Services unless otherwise authorized by us.
8.3Harm To KeepUpp Companies or Our Users. You must not (or assist others to) directly, indirectly, through automated or other means, access, use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sublicense, transfer, display, perform, or otherwise exploit our Services in impermissible or unauthorized manners, or in ways that burden, impair, or harm us, our Services, systems, our users, or others, including that you must not directly or through automated means: (a) reverse engineer, alter, modify, create derivative works from, decompile, or extract code from our Services; (b) send, store, or transmit viruses or other harmful computer code through or onto our Services; (c) gain or attempt to gain unauthorized access to our Services or systems; (d) interfere with or disrupt the safety, security, confidentiality, integrity, availability, or performance of our Services; (e) create accounts for our Services through unauthorized or automated means; (f) collect information of or about our users in any impermissible or unauthorized manner; (g) sell, resell, rent, or charge for our Services or data obtained from us or our Services in an unauthorized manner; (h) distribute or make our Services available over a network where they could be used by multiple devices at the same time, except as authorized through tools we have expressly provided via our Services; (i) create software or APIs that function substantially the same as our Services and offer them for use by third parties in an unauthorized manner; or (j) misuse any reporting channels, such as by submitting fraudulent or groundless reports or appeals.
8.4Keeping Your Account Secure. You are responsible for keeping your device and your KeepUpp account safe and secure, and you must notify us promptly of any unauthorized use or security breach of your account or our Services.
9.1We try hard to keep our Services a safe place for all users. But we can't guarantee it. That's where you come in. By using the Services, you agree that you will at all times comply with these Terms, and any other policies we make available in order to maintain the safety of the Services.
9.2If you fail to comply, without prejudice to other available remedies, we reserve the right to remove any offending content, terminate or limit the visibility of your account, and notify third parties—including law enforcement—and provide those third parties with information relating to your account. This step may be necessary to protect the safety of our users, and others, to investigate, remedy, and enforce potential Terms violations, and to detect and resolve any fraud or security concerns.
10.1Your Rights. KeepUpp Companies do not claim ownership of the information that you submit for your KeepUpp account or through our Services. You must have the necessary rights to such information that you submit for your KeepUpp account or through our Services and the right to grant the rights and licenses in our Terms.
10.2KeepUpp Companie's Rights. We own all copyrights, trademarks, domains, logos, trade dress, trade secrets, patents, and other intellectual property rights associated with our Services. You may not use our copyrights, trademarks (or any similar marks), domains, logos, trade dress, trade secrets, patents, and other intellectual property rights unless you have our express permission.
10.3Your License to KeepUpp Companies. In order to operate and provide our Services, you grant KeepUpp Companies a worldwide, non-exclusive, royalty-free, sublicensable, and transferable license to use, reproduce, distribute, create derivative works of, display, and perform the information (including the content) that you upload, submit, store, send, or receive on or through our Services. The rights you grant in this license are for the limited purpose of operating and providing our Services (such as to allow us to display your profile picture and status message, transmit your messages, and store your undelivered messages on our servers for up to 30 days as we try to deliver them).
10.4KeepUpp Companies License to You. We grant you a limited, revocable, non-exclusive, non-sublicensable, and non-transferable license to use our Services, subject to and in accordance with our Terms. This license is for the sole purpose of enabling you to use our Services in the manner permitted by our Terms. No licenses or rights are granted to you by implication or otherwise, except for the licenses and rights expressly granted to you.
11.1You represent and warrant that you are not located in a country that is subject to a U.S Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and that you are not listed on any U.S. Government list of prohibited or restricted parties.
11.2You agree:
(a) not to use the App in any unlawful manner, for any unlawful or criminal purpose, or in any manner inconsistent with these Terms, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the App;
(b) not to use the App to record, post or transmit any information that is defamatory, threatening, abusive, offensive, obscene, indecent, discriminatory or is otherwise objectionable or infringes on third-party rights;
(c) not to use the App in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users, or restrict or inhibit any other users from using the App (including by hacking or defacing the App); and
(d) not to collect or harvest any information or data from the App or our systems or attempt to decipher any transmissions to or from the servers running the App, including, without limitation, by using any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, "scrape", "data mine" or in any way gather the App content or reproduce or circumvent the navigational structure or presentation of the App without our prior written consent.
12.1You acknowledge that (i) all intellectual property rights in and to the App belong to the KeepUpp Companies or their licensors, (ii) the rights granted herein are licensed (not sold) to you, and (iii) you have no rights in, or to, the App or its content other than the right to use the App in accordance with these Terms.
12.2All trademarks, service marks, trade names, and logos are proprietary to the KeepUpp Companies or used by KeepUpp with the permission of its third-party providers. Nothing contained on in this App should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark displayed on the App without the written permission of us. Your use of the trademarks displayed in this App, or any other content in this App, except as provided herein, is strictly prohibited. You acknowledge that you have no right to have access to the App in source code form.
13.1Our Services are provided "as is" and, to the extent permitted by applicable law, we and our directors, officers, employees, agents, representatives, licensors, third party providers and affiliates, exclude all representations or warranties of any kind, express or implied including, but not limited to, implied warranties of merchantability, satisfactory quality, fitness for a particular purpose and non-infringement. Any reliance on or use of our Services shall be at your sole risk. The KeepUpp Companies shall not have any obligation to furnish any maintenance and/or support services with respect to the App. We expressly disclaim any liability for loss or damage sustained by you as a result of the accessing and use of the App.
13.2We do not warrant that our Services will be operational, error-free, secure, or safe or that our Services will function without disruptions, delays, or imperfections. We do not warrant that defects will be corrected or that the App is free of viruses or other harmful components. We do not warrant or make any representations regarding the use or the results of the use of the App. You agree to conduct your own due diligence to assess the accuracy, reliability and quality of all content provided by the App.
13.3We do not control, and we are not responsible for, controlling how or when our users use our Services or the features, services, and interfaces our Services provide. We are not responsible for and are not obligated to control the actions or information (including content) of our users or other Third-Parties.
13.4You (and not us) assume the entire cost of all necessary servicing, repair or correction in respect of your Device.
13.5You release us, our subsidiaries, affiliates and our and their directors, officers, employees, partners, and agents (together, the "KeepUpp Parties") from any claim, complaint, cause of action, controversy, dispute, or damage (together, "Claim"), known or unknown, relating to, arising out of, or in any way connected with any such claim you have against any Third Parties. Your rights with respect with the KeepUpp Parties are not modified by the foregoing disclaimer if the laws of your country or territory of residence, applicable as a result of your use of our Services, do not permit it. If you are a United States resident, you waive any rights you may have under California civil code §1542, or any other similar applicable statute or law of any other jurisdiction, which says that: a general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her would have materially affected his or her settlement with the debtor or released party.
14.1We reserve the right, temporarily or permanently, in whole or in part, to modify, suspend or discontinue our Services or to expand, add, or remove our Services, features, functionalities, and the support of certain devices and platforms without notice for any reason without liability to you, except where prohibited by applicable law. Our Services may be interrupted, including for maintenance, repairs, upgrades, or network or equipment failures. We may discontinue some or all of our Services, including certain features and the support for certain devices and platforms, at any time. Events beyond our control may affect our Services, such as events in nature and other force majeure events.
14.2In addition, you acknowledge that the App is provided over the Internet and mobile networks and so the quality and availability of the App may be affected by factors outside our reasonable control. Accordingly, we do not accept any responsibility for any connectivity issues that you may experience when using the App. In addition, you acknowledge and agree that you (and not us) are responsible for obtaining and maintaining all telecommunications, broadband and computer hardware, equipment and services needed to access and use the App, and for paying any data charges that may be charged to you by your network provider in connection with your use of the App. In the event you choose to share information from the App, you acknowledge and agree that you (and not us) are responsible for paying any related fees that may be charged to you by your network or telecommunications provider.
15.1Although we hope you remain a KeepUpp user, you can terminate your relationship with us anytime for any reason by deleting your account.
15.2As a rule, when your KeepUpp account is deleted for any reason whatsoever, all information included in your KeepUpp account is definitively deleted and is not recoverable even when our Service Providers keep limited technical backup of our data's. You are responsible for the making of regular backups of any data included in the App that you want to keep independently from the use of the App. In particular (and not limited to), when you delete your KeepUpp account, this deletion is final and all data (including contacts) included in the App, as well as uploaded in your native contact app, will be deleted and you will no longer have access to it.
15.3We may modify, suspend, or terminate your access to or use of our Services anytime for any reason, such as if you violate the letter or spirit of our Terms or create harm, risk, or possible legal exposure for us, our users, or others. We may take action with respect to your account, including disabling or suspending your account, if you clearly, seriously or repeatedly infringe the intellectual property rights of others or where we are required to do so for legal reasons. We may also disable or delete your account if it does not become active after account registration or if it remains inactive for an extended period of time. The following provisions will survive any termination of your relationship with us: "Licenses", "Disclaimers", "Limitation of Liability", "Indemnification", "Dispute Resolution", "Termination", "Miscellaneous", and "Special Arbitration Provision For United States Or Canada Users".
16.1You agree that you use the App and/or any Third-Party Sites at your own risk. You further understand and agree that we are not responsible or liable for your illegal, unauthorized, or improper use of information transmitted, monitored, stored or received using the App.
16.2To the fullest extent permitted under applicable law, in no event shall the KeepUpp Parties be liable to you for any loss, injury or damages (including but not limited to any special, indirect, consequential or punitive damages, lost profits, lost revenues or other incidental damages) relating to, arising out of the use, inability to use, or the results of use of the App, or in any way in connection with our Terms, us, or our Services (however caused and on any theory of liability, including negligence), even if the KeepUpp Partis have been advised of the possibility of such damages. Our aggregate liability relating to, arising out of the use, inability to use, or the results of use of the App, or in any way in connection with our Terms, us, or our Services will not exceed the greater of one hundred dollars ($100) or the amount you have paid us in the past twelve months.
16.3The foregoing disclaimer of certain damages and limitation of liability will apply to the maximum extent permitted by applicable law. The laws of some States or jurisdiction may not allow the exclusion or limitation of certain damages, so some or all of the exclusions and limitations set forth above may not apply to you. Notwithstanding anything to the contrary in our Terms, in such cases, the liability of the KeepUpp Parties will be limited to the fullest extent permitted by applicable law.
17.1If anyone brings a claim ("Third-Party Claim") against us related to your actions, information, or content on KeepUpp, or any other use of our Services by you, you will, to the maximum extent permitted by applicable law, indemnify the KeepUpp Parties for any claims, actions, demands, losses, liabilities, damages, costs and expenses of any kind (including legal expenses and other costs, such as attorneys' fees) reasonably incurred by the KeepUpp Parties relating to, arising out of, or in any way in connection with any of the following: (a) your access to or use of our Services, including information and content provided in connection therewith; (b) your breach of our Terms or applicable law; or (c) any misrepresentation made by you; or (d) your negligence or willful misconduct. We reserve the right to assume the exclusive defence and control of any claim brought by a Third-Party in connection with your use of the Services and you will cooperate as fully as required by us in the defense or settlement of any Third-Party Claim. Your rights with respect to us are not modified by the foregoing indemnification if the laws of your country or territory of residence, applicable as a result of your use of our Services, do not permit it.
18.1If you provide us with any comments, bug reports, feedback, enhancements, or modifications proposed or suggested by you for the App ("Feedback"), such Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary that you may include in any accompanying communication), and we shall have the right to use such Feedback at our discretion, including, but not limited to the incorporation of such suggested changes into the App or any other hardware, software or services from the KeepUpp companies. You hereby grant us a perpetual, irrevocable, transferable, licensable, sub-licensable, non-exclusive license without license fees under all rights necessary to so incorporate and use your Feedback for any purpose, including to make and sell products and services. Feedback shall not be considered confidential information and may be used for any purpose by the KeepUpp companies. There shall be no obligation to provide compensation to you for use of Feedback.
19.1We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms that is caused by any act or event beyond our reasonable control, including any failure of public or private telecommunications networks.
20.1Unless a mutually executed agreement between you and us states otherwise, our Terms make up the entire agreement between you and us regarding KeepUpp and our Services, and supersede any prior agreements.
20.2We reserve the right to designate in the future that certain of our Services are governed by separate terms (where, as applicable, you may separately consent).
20.3All of our rights and obligations under our Terms are freely assignable by us to any of our affiliates or in connection with a merger, acquisition, restructuring, or sale of assets, or by operation of law or otherwise, and we may transfer your information to any of our affiliates, successor entities, or new owner. In the event of such an assignment, these Terms will continue to govern your relationship with such third-party. We hope you will continue using our Services, but if you do not agree to such an assignment, you must stop using our Services by deleting your account after having been notified of the assignment.
20.4You may not transfer your rights or obligations under these Terms to anyone else without our prior written consent.
20.5If we fail to insist that you perform any of your obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations.
20.6Each of the conditions of these Terms operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
20.7In entering into these Terms, you have not relied on and (in the absence of fraud) you shall have no right or remedy in respect of any statement, representation, assurance or warranty other than as set out in these Terms.
20.8No agency, partnership, joint venture or employment relationship is created as a result of these Terms and neither of us has any authority of any kind to bind the other in any respect.
20.9Our Services are not intended for distribution to or use in any country or territory where such distribution or use would violate local law or would subject us to any regulations in another country or territory. We reserve the right to limit our Services in any country or territory.
20.10You will comply with all applicable United States and non-United States export control and trade sanctions laws ("Export Laws"). You will not, directly or indirectly, export, re-export, provide, or otherwise transfer our Services: (a) to any individual, entity, territory, or country prohibited by Export Laws; (b) to anyone on United States or non-United States government restricted parties lists; or (c) for any purpose prohibited by Export Laws, including nuclear, chemical, or biological weapons, or missile technology applications without the required government authorizations. You will not use or download our Services if you are located in a restricted country or territory, if you are currently listed on any United States or non-United States restricted parties list, or for any purpose prohibited by Export Laws, and you will not disguise your location through IP proxying or other methods.
20.11Any amendment to or waiver proposed by you of our Terms requires our express consent. We may amend or update these Terms. We will provide you notice of material amendments to our Terms, as appropriate, and update the "Last modified" date at the top of our Terms. Your continued use of our Services confirms your acceptance of our Terms, as amended. We hope you will continue using our Services, but if you do not agree to our Terms, as amended, you must stop using our Services by deleting your account.
20.12Nothing in our Terms will prevent us from complying with the law.
20.13Except as contemplated herein, our Terms do not give any third-party beneficiary rights.
20.14If any provision of these Terms is found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed amended to the minimum extent necessary to make it enforceable, and if it cannot be made enforceable then it shall be deemed severable from our Terms and shall not affect the validity and enforceability of the remaining provisions of our Terms, and the remaining portion of our Terms will remain in full force and effect except as set forth in the "Special Arbitration Provision For United States Or Canada Users" section below.
20.15We reserve all rights not expressly granted by us to you. In certain jurisdictions, you may have legal rights as a consumer, and our Terms are not intended to limit such consumer legal rights that may not be waived by contract.
21.1Forum And Venue. If you are a KeepUpp user located in the United States or Canada, the "Special Arbitration Provision For United States Or Canada Users" section below applies to you. Please also read that section carefully and completely. If you are not subject to the "Special Arbitration Provision For United States Or Canada Users" section below, you agree that any claim or cause of action you have against the KeepUpp Companies relating to, arising out of, or in any way in connection with our Terms or our Services, and for any claim or cause of action that the KeepUpp Companies files against you, you and we agree that any such claim or cause of action (each, a "Dispute", and together, "Disputes") will be resolved exclusively in the United States District Court for the Northern District of California or a state court located in San Mateo County in California, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating any such claim or cause of action, and the laws of the State of California will govern any such claim or cause of action without regard to conflict of law provisions. Without prejudice to the foregoing, you agree that, in our sole discretion, we may elect to resolve any Dispute we have with you that is not subject to arbitration in any competent court in the country in which you reside that has jurisdiction over the Dispute.
21.2Governing Law. The laws of the State of California govern our Terms, as well as any Disputes, whether in court or arbitration, which might arise between the KeepUpp Companies and you, without regard to conflict of law provisions.
21.3Time Limit to Bring A Claim Or Dispute. THESE TERMS ALSO LIMIT THE TIME YOU HAVE TO BRING A CLAIM OR DISPUTE, INCLUDING THE TIME TO START AN ARBITRATION OR, IF PERMISSIBLE, A COURT ACTION OR SMALL CLAIMS PROCEEDING TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. We and you agree that for any Dispute (except for the Excluded Disputes defined below) we and you must bring Claims (including commencing an arbitration proceeding) within one year after the Dispute first arose; otherwise, such Dispute is permanently barred. This means that if we or you do not bring a Claim (including commencing an arbitration) within one year after the Dispute first arose, then the arbitration will be dismissed because it was started too late.
22.1PLEASE READ THIS SECTION CAREFULLY BECAUSE IT CONTAINS ADDITIONAL PROVISIONS APPLICABLE ONLY TO OUR UNITED STATES AND CANADA USERS. IF YOU ARE A KeepUpp USER LOCATED IN THE UNITED STATES OR CANADA, YOU AND WE AGREE TO SUBMIT ALL DISPUTES TO BINDING INDIVIDUAL ARBITRATION, EXCEPT FOR THOSE THAT INVOLVE INTELLECTUAL PROPERTY DISPUTES AND EXCEPT THOSE THAT CAN BE BROUGHT IN SMALL CLAIMS COURT. THIS MEANS YOU WAIVE YOUR RIGHT TO HAVE SUCH DISPUTES RESOLVED IN COURT BY A JUDGE OR JURY. FINALLY, YOU MAY BRING A CLAIM ONLY ON YOUR OWN BEHALF, AND NOT ON BEHALF OF ANY OFFICIAL OR OTHER PERSON, OR CLASS OF PEOPLE. YOU WAIVE YOUR RIGHT TO PARTICIPATE IN, OR HAVE YOUR DISPUTE HEARD AND RESOLVED AS, A CLASS ACTION, A CLASS ARBITRATION, OR A REPRESENTATIVE ACTION.
22.2"Excluded Dispute" means any Dispute relating to the enforcement or infringement of your or our intellectual property rights (such as copyrights, trademarks, domains, logos, trade dress, trade secrets, and patents) or efforts to interfere with our Services or engage with our Services in unauthorized ways (for example, automated ways). For clarity and notwithstanding the foregoing, those Disputes relating to, arising out of, or in any way in connection with your rights of privacy and publicity are not Excluded Disputes.
22.3Federal Arbitration Act. The United States Federal Arbitration Act governs the interpretation and enforcement of this "Special Arbitration Provision For United States Or Canada Users" section, including any question whether a Dispute between we and you is subject to arbitration.
22.4Agreement To Arbitrate For KeepUpp Users Located In The United States Or Canada. For KeepUpp users who live in the United States or Canada, we and you each agree to waive the right to a trial by judge or jury for all Disputes, except for the Excluded Disputes. We and you agree that all Disputes (except for the Excluded Disputes), including those relating to, arising out of, or in any way in connection with your rights of privacy and publicity, will be resolved through final and binding arbitration. We and you agree not to combine a Dispute that is subject to arbitration under our Terms with a Dispute that is not eligible for arbitration under our Terms. In addition, all Disputes concerning the arbitrability of a claim (including disputes about the scope, applicability, enforceability, revocability, or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
22.5Before you commence arbitration of a Dispute, you must provide us with a written Notice of Dispute that includes your (a) name; (b) residence address; (c) username; (d) email address or phone number you use for your KeepUpp account; (e) a detailed description of the dispute; and (f) the relief you seek. Any Notice of Dispute you send to us should be mailed to KeepUpp SRL, Drève Richelle 161 M/57, 1410 Waterloo, Belgium. Before we commence arbitration, we will send you a Notice of Dispute to the email address you provide, or other appropriate means. If we are unable to resolve a dispute within sixty (60) days after the Notice of Dispute is received, you or we may commence arbitration.
22.6Arbitration Rules. The Federal Arbitration Act, including its procedural provisions, governs the interpretation and enforcement of this dispute-resolution provision, and not state law. Arbitration will be conducted by ADR Services, Inc. ("ADR Services" - www.adrservices.com). If ADR Services is not available to arbitrate, the parties will select an alternative arbitral forum, and if they cannot agree, will ask the court to appoint an arbitrator pursuant to 9 U.S.C. § 5. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. The arbitration will be conducted by a single neutral arbitrator. Any claims or disputes where the total amount sought is less than $10,000 USD may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount sought is $10,000 USD or more, the right to a hearing will be determined by the arbitral forum's rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
22.7Additional Rules for Non-appearance Arbitration. If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three; the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise.
22.8Fees. ADR Services sets forth fees for its services, which are available at www.adrservices.com/rate-fee-schedule.
22.9Authority of the Arbitrator. The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of you and us. The Dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or Dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under law, the arbitral forum's rules, and the Terms. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
22.10Waiver of Jury Trial. YOU AND WE WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and we are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and we over whether to vacate or enforce an arbitration award, YOU AND WE WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
22.11Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Notwithstanding any other provision of this Agreement, the Arbitration Agreement or ADR Services' Rules, disputes regarding the interpretation, applicability, or enforceability of this waiver may be resolved only by a court and not by an arbitrator. If this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court
22.12Right to Waive. Any rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this Arbitration Agreement.
22.13Opt-out. You may opt out of this Arbitration Agreement. If you do so, neither you nor we can force the other to arbitrate. To opt out, you must notify us in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, and your KeepUpp username you used to set up your KeepUpp account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. You must either mail your opt-out notice to this address: KeepUpp SRL, Drève Richelle 161 M/57, 1410 Waterloo, Belgium, or email the opt-out notice to arbitration-opt-out@keepupp.com.
22.14Small Claims Court. As an alternative to arbitration, if permitted by your local "small claims" court's rules, you may bring your Dispute in your local "small claims" court, as long as the matter advances on an individual (non-class) basis.
22.15Place To File Permitted Court Actions. If you opt out of the agreement to arbitrate, if your Dispute is an Excluded Dispute, or if the arbitration agreement is found to be unenforceable, you agree to be subject to the applicable provision in the "Dispute Resolution" section set forth above.
22.16Arbitration Agreement Survival. This Arbitration Agreement will survive the termination of your relationship with us.
