UpCatch Terms of Service

Terms of Use

Last Updated: September 26, 2023

Introduction to Our Terms of Service

At the outset, we want to thank you for using UpCatch!

Please read these Terms of Service (“Terms”) carefully as they contain important information about your legal rights, remedies and obligations. By accessing or using the UpCatch Platform (defined below), you agree to comply with and be bound by these Terms. If you do not agree with these Terms, please discontinue your use of the UpCatch Platform immediately.

Please note: Section 10 of these Terms contains an arbitration clause and class action waiver that applies to all UpCatch Platform users and visitors. If your country of residence is the United States, this provision applies to all disputes with UpCatch. If your country of residence is outside of the United States, this provision applies to any action you bring against UpCatch in the United States. To be clear, Section 10 affects how disputes with UpCatch are resolved. By accepting these Terms, you agree to be bound by Section 10’s arbitration clause and class action waiver. Please read it carefully.

These Terms constitute a legally binding agreement ("Agreement") between you and UpCatch (as defined below) governing your access to and use of the UpCatch website and service, including any subdomains thereof, and any other websites through which UpCatch makes its services available (collectively, "Site"), our mobile, tablet and other smart device applications, and application program interfaces (collectively, "Application") and all associated services (collectively, "UpCatch Services"). The Site, Application and UpCatch Services together are hereinafter collectively referred to as the “UpCatch Platform”.

Our collection and use of personal information in connection with your access to and use of the UpCatch Platform is described in our Privacy Policy, which can be accessed at www.UpCatch.io/privacy. If you do not agree with the terms set forth under the Privacy Policy, please immediately discontinue your use of the UpCatch Platform.

The use and access of the UpCatch Platform is also subject to other terms and policies that might be released from time to time that are applicable to your use of the UpCatch Platform (collectively, all of these additional policies, including the Privacy Policy, are referred to hereafter as the “Additional UpCatch Policies”). The Additional UpCatch Policies are here incorporated by reference into this Agreement.

These Terms, along with the Additional UpCatch Policies (collectively known as the “UpCatch Platform Policies”), constitute the entire agreement between you and UpCatch, governs the terms of your access and use of the UpCatch Platform, and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and us with respect to the UpCatch Platform.

UpCatch may also periodically run contests, events, special offers, or other activities on the UpCatch Platform or through a third-party partner (each an “Event”). Such Event(s) may be governed by terms and conditions that are distinct and supplemental to this Agreement (“Event Terms”). In the event of any conflict between those terms and this Agreement, the Event Terms specific to the Event are to control.

UpCatch - Who We Are

When these Terms mention “UpCatch,” “we,” “us,” or “our,” it refers to the UpCatch legal entity you are contracting with. Your contracting entity will generally be determined based on your country of residence, establishment, or where the UpCatch Platform Services were delivered to you.

If your country of residence or establishment is the United States, you are contracting with UpCatch LLC, a California Limited Liability Company.

If you change your country of residence or establishment, the UpCatch company you contract with will be determined by your new country of residence or establishment as specified above, from the date on which your country of residence changes.

The Services that UpCatch Provides – What We Do

1.1 The UpCatch Platform is an online plug-in extension that enables registered users (“User”) to automatedly follow up with contacts by 1) scheduling emails, 2) drafting emails for you based on your own emails, 3) unscheduling emails when particular actions are taken by recipients and 4) give you insights into a) messages you might need to follow up on and b) activity or lack thereof by recipients.

1.2 If you choose to use the UpCatch Platform as a User, your relationship with UpCatch is limited to that of being an independent individual or entity, and not an employee, agent, joint venturer or partner of UpCatch for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of UpCatch. UpCatch does not, and shall not be deemed to, direct or control you generally or in your performance under these Terms specifically, including in connection with your provision of services. You acknowledge and agree that you have complete discretion whether to use the services or engage in any of its related activities.

1.3 The UpCatch Platform may contain links to third-party websites or resources (“Third-Party Services”). Such Third-Party Services may be subject to different terms and conditions and privacy practices. UpCatch is not responsible or liable for the availability or accuracy of such Third-Party Services, or the content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement by UpCatch of such Third-Party Services.

1.4 Due to the nature of the Internet, UpCatch cannot guarantee the continuous and uninterrupted availability and accessibility of the UpCatch Platform. UpCatch may restrict the availability of the UpCatch Platform or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the UpCatch Platform. UpCatch may improve, enhance and modify the UpCatch Platform and introduce new UpCatch Services from time to time.

2. Modification of These Terms

UpCatch reserves the right to modify these Terms at any time in accordance with this provision. If we make changes to these Terms, we will post the revised Terms on the UpCatch Platform and update the “Last Updated” date at the top of these Terms. You should review these Terms from time to time to ensure that you are still in agreement with them. If you disagree with the revised Terms, you may terminate this Agreement with immediate effect through your discontinuance of the Platform and written notice to UpCatch. If you do not terminate your Agreement before the date the revised Terms become effective, your continued access to or use of the UpCatch Platform will constitute acceptance of the revised Terms.

3. UpCatch Content & Member Content

3.1 UpCatch may, at its sole discretion, enable Users to access and view any content that UpCatch itself makes available on or through the UpCatch Platform, including proprietary UpCatch content and any content licensed or authorized for use by or through UpCatch from a third party ("UpCatch Content" and together with any other content, "Collective Content").

3.2 The UpCatch Platform, UpCatch Content, and Collective Content may in its entirety or in part be protected by copyright, trademark, and/or other laws of the United States and other countries. You acknowledge and agree that the UpCatch Platform, UpCatch Content, and Collective Content including all associated intellectual property rights, are the exclusive property of UpCatch and/or its licensors or authorizing third-parties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the UpCatch Platform, UpCatch Content or Collective Content.

All trademarks, service marks, logos, trade names, and any other source identifiers of UpCatch used on or in connection with the UpCatch Platform and UpCatch Content are trademarks or registered trademarks of UpCatch in the United States and abroad. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the UpCatch Platform, UpCatch Content, and/or Collective Content are used for identification purposes only and may be the property of their respective owners.

3.3 You will not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the UpCatch Platform or UpCatch Content, except to the extent you are the legal owner of such content or as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by UpCatch or its licensors, except for the licenses and rights expressly granted in these Terms.

3.4 Subject to your compliance with these Terms, UpCatch grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to (i) download and use the Platform on your personal device(s); and (ii) access and view any Collective Content made available on or through the UpCatch Platform and accessible to you, solely for your personal and non-commercial use.

3.7 You are solely responsible for all content that you make available on or through the UpCatch Platform. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all content that you make available on or through the UpCatch Platform or you have all rights, licenses, consents and releases that are necessary to grant to UpCatch the rights in and to such content, as contemplated under these Terms; and (ii) neither the content nor your posting, uploading, publication, submission or transmittal of the content or UpCatch's use of the content (or any portion thereof) as contemplated under these Terms will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

3.8 You will not post, upload, publish, submit or transmit any content that: (i) is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive; (ii) is defamatory, libelous, obscene, pornographic, vulgar or offensive; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening or promotes violence or actions that are threatening to any other person or animal; (v) promotes illegal or harmful activities or substances; or (vi) violates any other UpCatch policy or Additional UpCatch Policies. UpCatch may, without prior notice, remove or disable access to the Service and Platform if UpCatch finds to be in violation of applicable law, these Terms, UpCatch’s then-current policies, Additional UpCatch Policies or that otherwise may be harmful or objectionable to UpCatch, its Users, third parties, or the public.

3.9 UpCatch respects copyright and intellectual property rights, and expects its Users to do the same. If you believe that any content on the UpCatch Platform infringes on copyrights or intellectual property that you own, please notify us in accordance with our DMCA Takedown Notice Policy set forth below.

3.10 DMCA Takedown Notices and Copyright Agent

UpCatch complies with the applicable provisions of the Digital Millennium Copyright Act of 1998, including Notice and safe harbor provisions under 17 U.S.C. § 512. If you believe your work has been posted, uploaded, or otherwise transmitted onto our Platform in a way that constitutes copyright infringement, or if you believe that your intellectual property rights have otherwise been violated, please provide a notice containing all of the following information to our DMCA Agent via email at DMCA@UpCatch.io.

A description of the copyrighted work that you claim has been infringed;
A description of the material that is claimed to be infringing or the subject of infringing activity that is to be removed;
A description of where the material that you claim is infringing is located on the Platform;
Your address, telephone number, and e-mail address;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf; and
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest.

We reserve the right to ignore a Notice that does not comply with the DMCA. All Notices of claims of copyright infringement are to be directed to our DMCA Agent by email at address noted above. We will respond expeditiously to notices of claimed copyright infringement.

If we remove any content from the Platform due to a Notice of copyright infringement, we will notify you. If we notify you that your content has been removed and you believe that the content was wrongly removed, you may respond to us in writing via a “Counter-Notice.” A proper Counter-Notice must contain the following information:

Your name, physical address, phone number and physical or electronic signature;
Identification of the User Content/material that was removed, and its location before removal;
A statement under penalty of perjury that the User Content/material was removed by mistake or misidentification, or that the User Content does not infringe on another’s rights; and
Your consent to the local or federal court jurisdiction in which you live, or if overseas, to the courts in Los Angeles County, California.

When we receive a Counter-Notice, we will send a copy to the original complaining party, informing them that we will replace the removed content on the Platform in 10 business days, unless we receive notice that they have filed a legal action seeking a court order to restrain the allegedly infringing conduct.

Notices and Counter-Notices are legal documents that are not part of the regular activity of the Platform. As such, they are not covered under our Privacy Policy. UpCatch may publish or share them with third parties at our discretion, and we may produce them in response to a legal discovery request or court order.

Important Note: Filing a Copyright Notice or Counter-Notice is serious business. Please think through the issue before submitting, especially if you are unsure whether you are the actual rights holder or authorized to act on a rights holder’s behalf. There are legal and financial consequences for fraudulent and/or bad faith submissions. Please be sure that you are the actual rights holder, or that you have a good faith belief that the material was removed in error, and that you understand the repercussions of submitting a false claim. We cannot offer any legal advice. Should you have questions, please consult an attorney.

Any DMCA Notice must be sent to our DMCA Agent at the following address(es):

Jack Schwada

ADDRESS

Email: DMCA@UpCatch.io

4. Our Service Fees

4.1 UpCatch may charge fees to each User (collectively, "Service Fees") in consideration for the use of the UpCatch Platform.

4.2 UpCatch reserves the right to change the Service Fees at any time.

4.3 You are responsible for paying any Service Fees that you owe to UpCatch. Except as otherwise provided on the UpCatch Platform, Service Fees are non-refundable.

5. and Prohibited Activities

5.1 UpCatch Platform Users are solely responsible for compliance with any and all laws, rules, regulations, and OTHER obligations that may apply to your use of the UpCatch Platform. In connection with your use of the UpCatch Platform, you will not and will not assist or enable others to:

breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, these Terms, or any Additional UpCatch Policies;
use the UpCatch Platform or Collective Content for any commercial or other purposes that are not expressly permitted by the UpCatch Platform Policies or in a manner that falsely implies UpCatch endorsement, partnership or otherwise misleads others as to your affiliation with UpCatch;
copy, store or otherwise access or use any information, including personally identifiable information about any other Member, contained on the UpCatch Platform in any way that is inconsistent with UpCatch Platform Policies, or that otherwise violates the privacy rights of Members or third parties;
use the UpCatch Platform in connection with the distribution of unsolicited commercial messages ("spam");
discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, any other protected classes under state or federal law, or otherwise engage in any violent, harmful, abusive or disruptive behavior;
misuse or abuse any Listings or services associated with the UpCatch Platform, as determined by UpCatch in its sole discretion.
use, display, mirror or frame the UpCatch Platform or Collective Content, or any individual element within the UpCatch Platform, UpCatch's name, any UpCatch trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the UpCatch Platform, without UpCatch's express written consent;
dilute, tarnish or otherwise harm the UpCatch brand in any way, including through unauthorized use of Collective Content, registering and/or using UpCatch or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to UpCatch domains, trademarks, taglines, promotional campaigns or Collective Content;
use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with the UpCatch Platform for any purpose;
avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by UpCatch or any of UpCatch's providers or any other third party to protect the UpCatch Platform;
attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the UpCatch Platform;
take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the UpCatch Platform;
export, re-export, import, or transfer the UpCatch Platform except as authorized by United States law, the export control laws of your jurisdiction, and any other applicable laws; or
violate or infringe anyone else’s rights or otherwise cause harm to anyone.
Send, upload, distribute or disseminate or offer to do the same with respect to any unlawful, defamatory, harassing, abusive, fraudulent, infringing, obscene, or otherwise objectionable content
Intentionally distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature
Transmit content that may be harmful to minors
Illegally transmit another's intellectual property or other proprietary information without such owner's or licensor's permission
Use Upcatch to violate the legal rights (such as rights of privacy and publicity) of others
Promote or encourage illegal activity
Interfere with other Upcatch users' enjoyment of the Service
Create multiple user accounts in connection with any violation of the Agreement or create user accounts by automated means or under false or fraudulent pretenses
Sell, trade, resell or otherwise exploit for any unauthorized commercial purpose or transfer any Upcatch account
Modify, adapt, translate, or reverse engineer any portion of the Upcatch Service
Remove any copyright, trademark or other proprietary rights notices contained in or on the Upcatch Service
Reformat or frame any portion of the web pages that are part of the Upcatch Service

5.2 You acknowledge that UpCatch has no obligation to monitor the access to or use of the UpCatch Platform by any User or to review, disable access to, or edit any content, but has the right to do so to (i) operate, secure and improve the UpCatch Platform (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (ii) ensure Users compliance with these Terms or the Additional UpCatch Policies; (iii) comply with applicable law or the order or requirement of a court, law enforcement or other administrative agency or governmental body; or (iv) otherwise set forth in these Terms or the Additional UpCatch Policies. Users agree to cooperate with and assist UpCatch in good faith, and to provide UpCatch with such information and take such actions as may be reasonably requested by UpCatch with respect to any investigation undertaken by UpCatch or a representative of UpCatch regarding the use or abuse of the UpCatch Platform.

6. Term and Termination, Suspension and Other Measures

6.1 This Agreement shall be effective for a 30-day term, at the end of which it will automatically and continuously renew for subsequent 30-day terms until such time when you or UpCatch terminate the Agreement in accordance with this provision.

6.2 You may terminate this Agreement at any time by sending us an email.

6.3 Without limiting our rights specified below, UpCatch may terminate this Agreement for convenience at any time by giving you fourteen (14) days' notice via email to your registered email address.

6.4 UpCatch may immediately, without notice, terminate this Agreement and/or stop providing access to the UpCatch Platform if (i) you have materially breached your obligations under these Terms or the Additional UpCatch Policies, (ii) you have violated applicable laws, regulations or third party rights, or (iii) UpCatch believes in good faith that such action is reasonably necessary to protect the personal safety or property of UpCatch, its Users, or third parties (for example in the case of fraudulent behavior of a User).

6.5 In addition, UpCatch may take any of the following measures (i) to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body, or if (ii) you have breached these Terms, Additional UpCatch Policies, applicable laws, regulations, or third party rights, (iii) you have provided inaccurate, fraudulent, outdated or incomplete information during the UpCatch Account registration, or (vii) UpCatch believes in good faith that such action is reasonably necessary to protect the personal safety or property of UpCatch, its Users, or third parties, or to prevent fraud or other illegal activity:

limit your access to or use of the UpCatch Platform;
temporarily or permanently revoke any special status associated with your UpCatch Account;
temporarily or in case of severe or repeated offenses permanently suspend your UpCatch Account and stop providing access to the UpCatch Platform.

In case of non-material breaches and where appropriate as determined in UpCatch’s sole and absolute discretion, you will be given notice of any intended measure by UpCatch and an opportunity to resolve the issue to UpCatch's reasonable satisfaction.

6.7 When this Agreement has been terminated, you are not entitled to a restoration of your UpCatch. If your access to or use of the UpCatch Platform has been limited or your UpCatch Account has been suspended or this Agreement has been terminated by us, you may not register a new UpCatch Account or access and use the UpCatch Platform through an UpCatch account of another User.

6.8 All parts and Sections of these Terms that by their nature survive termination, will survive termination of this Agreement, including Sections 1-14.

7. Disclaimers

YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE IS AT YOUR SOLE AND OWN RISK. WE MAKE NO WARRANTY OR REPRESENTATION ABOUT THE INFORMATION CONTAINED ON THE PLATFORM OR ABOUT THE RESULTS FROM YOUR USE OF THE SERVICE. THE INFORMATION ON THE PLATFORM IS PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. WE DISCLAIM ALL WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY EXPRESS WARRANTIES, STATUTORY WARRANTIES, AND ANY IMPLIED WARRANTIES. TO THE EXTENT YOUR JURISDICTION DOES NOT ALLOW LIMITATIONS ON WARRANTIES, THIS LIMITATION MAY NOT APPLY TO YOU. YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO YOUR USE OF THE SITE SHALL BE TO DISCONTINUE USING IT.

UPCATCH IS NOT RESPONSIBLE FOR ANY LOSSES OR ISSUES ARISING FROM USE OF THE PLATFORM, EVEN IF YOUR ACCESS TO SUCH PARTIES WAS FACILITATED BY THE UPCATCH PLATFORM. THE SITE DOES NOT ACTIVELY OVERSEE YOUR USE OF THE PLATFORM OR COLLECTIVE CONTENT. WE DO NOT WARRANT THE APPROPRIATE OR PROPER USE OF THE PLATFORM OR SERVICES FOR YOUR SPECIFIC PURPOSES, AND WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

WE MAKE NO WARRANTY THAT THE PLATFORM OR SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE UNINTERRUPTED, SECURE, OR ERROR FREE. WE MAKE NO WARRANTY REGARDING THE QUALITY TO ANY PRODUCTS, SERVICES, OR INFORMATION OBTAINED OR LINKED TO OR THROUGH THE PLATFORM, OR THE ACCURACY, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY PLATFORM CONTENT OR THIRD-PARTY WEB LINKS, INCLUDING THAT OF ANY OF OUR AFFILIATES OR PARTNERS.

If you choose to use the UpCatch Platform, you do so voluntarily and at your sole risk. The UpCatch Platform is provided “as is”, without warranty of any kind, either express or implied.

You agree that you have had whatever opportunity you deem necessary to investigate the UpCatch Platform, Services, laws, rules, or regulations that may be applicable to your use and that you are not relying upon any statement of law or fact made by UpCatch relating to use for a particular purpose.

The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.

8. LIMITS OF LIABILITY

YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE UPCATCH PLATFORM AND SERVICES. NEITHER UPCATCH NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE UPCATCH PLATFORM OR SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH (I) THESE TERMS OR THE ADDITIONAL UPCATCH POLICIES, (II) FROM THE USE OF OR INABILITY TO USE THE UPCATCH PLATFORM OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT UPCATCH HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. EXCEPT FOR OUR OBLIGATIONS TO PAY AMOUNTS TO APPLICABLE HOSTS PURSUANT TO THESE TERMS, IN NO EVENT WILL UPCATCH’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE UPCATCH PLATFORM INCLUDING, BUT NOT LIMITED TO, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR USE OF THE PLATFORM AS A USER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED U.S. DOLLARS (US $100) IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN UPCATCH AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

9. Indemnification

To the maximum extent permitted by applicable law, you agree to release, defend (at UpCatch’s option), indemnify, and hold UpCatch and its affiliates and subsidiaries, including but not limited to their shareholders, owners, officers, board of directors, employees and agents, and/or any other party involved in creating, producing, or delivering the UpCatch Platform or Services harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your breach of these Terms or Additional UpCatch Policies, (ii) your improper use of the UpCatch Platform or any UpCatch Services, (iii) your interaction with any third party, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such interaction, participation or use, (iv) your breach of any laws, regulations or third party rights, (v) your content, or (vii) your violation of any third party rights, including without any limitation copyright, intellectual property, or privacy right.

10. Dispute Resolution, Agreement to Arbitrate, & Class Action Waiver

10.1 This dispute resolution and agreement to arbitration (“Arbitration Agreement”) shall apply if your (i) country of residence or establishment is in the United States; or (ii) your country of residence or establishment is not in the United States, but bring any claim against UpCatch in the United States (to the extent not in conflict with any other provision of these Terms).

10.2 Overview of Dispute Resolution Process. UpCatch is committed to participating in a consumer-friendly dispute resolution process. To that end, these Terms provide for a two-part process for individuals to whom Section 16.1 applies:

(1) an informal negotiation directly with UpCatch’s customer service team, and

(2) a binding arbitration administered by the American Arbitration Association (“AAA”) using its specially designed Consumer Arbitration Rules (as modified by this Section10 and except as provided in Section 10.5).

Specifically, the Consumer Arbitration Rules provide:

Claims can be filed with AAA online (www.adr.org);
Arbitrators must be neutral and no party may unilaterally select an arbitrator;
Arbitrators must disclose any bias, interest in the result of the arbitration, or relationship with any party;
Parties retain the right to seek relief in small claims court for certain claims, at their option;
The initial filing fee for the consumer is capped at $350;
The consumer gets to elect the hearing location and can elect to participate live, by phone, video conference, or, for claims under $10,000, by the submission of documents;
The arbitrator can grant any remedy that the parties could have received in court to resolve the party’s individual claim.

10.3 Pre-Arbitration Dispute Resolution and Notification. Prior to initiating any arbitration, you and UpCatch each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. We will contact you at the email address you have provided to us; you can contact UpCatch’s customer service team by emailing us. If after a good faith effort to negotiate one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.

10.4 Agreement to Arbitrate. You and UpCatch mutually agree that any dispute, claim or controversy arising out of or relating to these Terms or the Additional UpCatch Policies, or the applicability, breach, termination, validity, enforcement or interpretation thereof, or to the use of the UpCatch Platform, (collectively, “Disputes”) will be settled by binding individual arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and UpCatch agree that the arbitrator will decide that issue.

10.5 Exceptions to Arbitration Agreement. You and UpCatch each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).

10.6 Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules and/or other AAA arbitration rules determined to be applicable by the AAA (the “AAA Rules“) then in effect, except as modified here. The AAA Rules are available at www.adr.org or by calling the AAA at 1–800–778–7879.

10.7 Modification to AAA Rules - Arbitration Hearing/Location. In order to make the arbitration most convenient to you, UpCatch agrees that any required arbitration hearing may be conducted, at your option, (a) in the United States county where you reside; (b) in Los Angeles County, California; (c) in any other location to which you and UpCatch both agree; (d) via phone or video conference; or (e) for any claim or counterclaim under $10,000, by solely the submission of documents to the arbitrator.

10.8 Modification of AAA Rules - Attorney’s Fees and Costs. You and UpCatch agree that UpCatch will be responsible for payment of the balance of any initial filing fee under the AAA Rules in excess of $350 for claims of $75,000 or less.

10.9 Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.

10.10 Jury Trial Waiver. You and UpCatch acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.

10.11 No Class Actions or Representative Proceedings. You and UpCatch acknowledge and agree that, to the fullest extent permitted by law, we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney general action, or any other representative proceeding as to all Disputes. Further, unless you and UpCatch both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If the “class action lawsuit” waiver or the “class-wide arbitration” waiver in this Section 10.11 is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute and the Dispute must proceed in court. If the “private attorney general action” waiver or the “representative proceeding” waiver in this Section 10.11 is held unenforceable with respect to any Dispute, those waivers may be severed from this Arbitration Agreement and you and UpCatch agree that any private attorney general claims and representative claims in the Dispute will be severed and stayed, pending the resolution of any arbitrable claims in the Dispute in individual arbitration.

10.12 Severability. Except as provided in Section 10.11, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.

10.13 Changes. Notwithstanding the provisions of Section 2 (“Modification of These Terms”), if UpCatch changes this Section 16 after the date you last accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of UpCatch’s email to you notifying you of such change (if such email was delivered). Rejecting a new change, however, does not revoke or alter your prior consent to any earlier agreements to arbitrate any Dispute between you and UpCatch (or your prior consent to any subsequent changes thereto), which will remain in effect and enforceable as to any Dispute between you and UpCatch.

10.14 Survival. Except as provided in Section 10.12, and subject to Section 6.8, this Section 10 will survive any termination of these Terms and will continue to apply even if you stop using the UpCatch Platform or terminate your UpCatch Account.

11. We Welcome Your Feedback

We welcome and encourage you to provide feedback, comments and suggestions for improvements to the UpCatch Platform (“Feedback“). You may submit Feedback by emailing us, or by other means of communication. Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to you.

12. General Provisions

12.1 Except as they may be supplemented by additional terms and conditions, policies, guidelines or standards, including the Additional UpCatch Policies, these Terms constitute the entire Agreement between UpCatch and you pertaining to the subject matter hereof, and supersede any and all prior oral or written understandings or agreements between UpCatch and you in relation to the access to and use of the UpCatch Platform.

12.2 No joint venture, partnership, employment, or agency relationship exists between you and UpCatch as a result of this Agreement or your use of the UpCatch Platform.

12.3 These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.

12.4 If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.

12.5 UpCatch’s failure to enforce any right or provision in these Terms or the Additional UpCatch Policies will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.

12.6 You may not assign, transfer or delegate this Agreement and your rights and obligations hereunder without UpCatch's prior written consent. UpCatch may without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion, with 30 days prior notice. Your right to terminate this Agreement at any time remains unaffected.

12.7 If you have any questions about these Terms please email us at support@UpCatch.io.

Thank you so much!

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