Agreement
Welcome to hopeUP. The following terms and conditions (the "Agreement") form a binding agreement between you (“you” or “User”) and hopeUP, Inc. (“hopeUP” or “we” or “us”). Please review the following terms carefully. By using this site (the “Site”) or the Services (as defined below), you are agreeing to these terms, as well as our Privacy Policy (published at http://www.hopeup.com/terms-privacy/), which collectively constitute a legally binding electronic contract governing your use of the Site and our Services. If you do not agree to these terms, you have no right to use, and must immediately cease use of the Site and our Services. The term "you" refers to the person accessing or using the Site or our Services, or the company or organization on whose behalf that person accesses the Site or our Services. If you are a merchant providing an offer for your products or services through the Site and/or the Services (a “Merchant”), then you must enter into a hopeUP Merchant Agreement with hopeUP, and that Merchant Agreement (and not this Agreement) shall govern such offers, and in the event of any conflict between this Agreement and any Merchant Agreement you have entered into with hopeUP, such Merchant Agreement shall govern with respect thereto.
Services
hopeUP’s services (the “Services”) offer users the opportunity to browse and purchase electronic offers (“Vouchers”, as further described below) redeemable for products or services of third party Merchants, and to otherwise use the features and functionality of the Site, including to post and read comments and discussion, and to set up and manage user accounts. Users are responsible are responsible for obtaining, maintaining and paying for any equipment and Internet service necessary to access the Site and Services.
Modifications
This Agreement is subject to change by hopeUP at any time, effective upon posting on Site, and your continued use of the Site or the Service after such posting will constitute your acceptance of and agreement to such changes. hopeUP reserves the right to modify or terminate any or all of the Services and/or access to the Site at any time, or modify or terminate the offering of any Voucher, for any or no reason, without notice. The Site and/or Services may also periodically become unavailable due to maintenance or malfunction or for other reasons, and hopeUP makes no warranty, and shall have no liability, arising out of the availability or unavailability of the Site or Services.
Eligibility
You must be at least 18 years old to be eligible to use the Site and Services. However, if you are at least 13 years old but not yet 18, you may use the Site and Services in conjunction with your parent or guardian who registers and agrees to this Agreement. No one under age 13 may use the Site or Services. hopeUP will not knowingly collect any information from children under age 13. You must identify your age during the registration process. hopeUP takes the Children's Online Privacy Protection Act of 1998 (COPPA) as well as all FTC regulations very seriously. That being said, hopeUP does not assume any responsibility for any misrepresentations regarding your age or parental consent when using this Site or the Services. Should we determine that you provided any false information to us when using this Site, your membership will be terminated immediately. In addition, the Site and Services are currently available only to residents of the United States. You represent that you are of legal age to form a binding contract, that you are a legal United States resident, and that you have the right, authority and capacity to enter into this Agreement, and you hereby commit to abide by and comply with all of the terms and conditions hereof.
Vouchers
hopeUP provides consumers with opportunities to purchase Vouchers, which are electronic offers redeemable for products and services from third party Merchants, consisting of either: (i) an offer to purchase a specified product or service of a Merchant for a specified price (a “Deal Voucher”); or (ii) an offer to purchase a specified monetary value of credit usable to purchase products or services of a Merchant generally (a “Gift Certificate Voucher”).
In order to be eligible to purchase Vouchers, you must first become a hopeUP member, which requires that you register and pay hopeUP a periodic (typically monthly) membership fee. A portion of the price of each such membership fee, determined by hopeUP in its discretion, will typically be distributed by hopeUP to a school, school district or other educational institution, charity or organization (a “School”), provided that the percentage, timing and other terms of such distributions to Schools shall be determined by hopeUP in its discretion. hopeUP reserves the right to modify the membership fee pricing from time to time, provided that the then-current membership fee pricing will always be displayed on the Site. Upon payment, all such membership fees shall be non-refundable and non-creditable for any reason.
By placing an order for a given Voucher, you agree to purchase the Voucher you have selected on the terms, restrictions and conditions associated with the Voucher. Once you’ve placed your order, you will receive a confirmation of the Voucher and your credit card will be charged for the amount of the Voucher, and you will then be able to display and print your Voucher. You are required to create an account in order to purchase any Voucher. An account is required so we can collect information to allow you to pay for your Vouchers and provide you with easy access to print your Vouchers, view your past purchases, and modify your preferences.
Each Voucher has specific terms associated with the Voucher, which will be presented to you at the time you purchase the particular Voucher. Voucher-specific terms supersede any inconsistent terms in this Agreement, except to the extent such terms are prohibited by applicable law.
Unless otherwise stated in the Voucher or required by law, the following additional terms apply to all Vouchers:
Unless otherwise stated in the terms for a particular Voucher or required by law, all Vouchers shall be subject to the following default terms and conditions:
· No cash value, no refunds, and may not be redeemed for cash or cash equivalents;
· Limit one (1) per person, limit one (1) per table (if applicable), one (1) may be purchased as a gift to be redeemed by others;
· Voucher must be redeemed only at the redemption location(s) printed on each Voucher (identified with the words “Redeem at:” or other similar terminology);
· Not valid with (and may not be combined with) any other offers, discounts or promotions;
· May not be used for payment of prior debts or for purchase of gift cards or gift certificates;
· Must be used its entirety in one visit, and any remaining balance when used is forfeited; and
· Does not cover tax or gratuity. Merchant may separately charge you sales, value added or use taxes at the time you redeem the Voucher.
Vouchers may include additional specified restrictions or other terms, such as minimum purchase requirements, expiration dates, redemption location(s) and/or availability/use restrictions, which will be stated in the terms for a particular Voucher at the time of purchase and printed on such Voucher.
If a Voucher has an expiration date printed on the Voucher, and if that expiration date is prohibited under the law of the jurisdiction in which the Merchant is located, then the Voucher shall be redeemable for the amount paid for such Voucher (the “paid portion”) for five (5) years from the date the Voucher is issued (except to the extent applicable law requires that the Merchant extend the period in which the Voucher may be redeemed), and any additional portion of such Voucher (if any) in excess of the paid portion (the “promotional portion”) will expire on the expiration date printed on the Voucher. The Merchant is obligated to honor the Voucher in compliance with, and for the full term required by, applicable law. If the Merchant refuses to honor the Voucher before the legally permitted expiration date, then hopeUP will credit you the paid portion of your Voucher in the form of a credit for future Gift Certificate Vouchers with other Merchants called “hopeUP Credits”. In order to receive the hopeUP Credit, you must provide the following information in writing to info@hopeup.com: (i) an identification of the Voucher and Merchant with whom you sought to redeem the Voucher, and (ii) a statement, under penalty of perjury, stating (a) the date you purchased the Voucher, (b) the date, time, and circumstances under which the Merchant refused to redeem the Voucher, and (c) that the Voucher has never been redeemed with the Merchant. If hopeUP concludes, in its sole determination, that the Merchant’s failure to redeem the Voucher was prohibited under the law of the jurisdiction in which the Merchant is located, hopeUP will issue the hopeUP Credit to you for the paid portion of the Voucher. FOR THE PURPOSES OF CLARIFICATION, HOPEUP CREDITS ARE REDEEMABLE ONLY FOR GIFT CERTIFICATE VOUCHERS, NOT FOR DEAL VOUCHERS.
To be clear, hopeUP markets the Vouchers and acts an as agent in selling the Vouchers on behalf of Merchants. However, the Merchant (and not hopeUP) is the issuer of the Voucher. As issuer of the Voucher, the Merchant (and not hopeUP) shall be fully responsible for the redemption of such Voucher, and for any and all damages, claims, liabilities, injuries and costs suffered by or in respect of a customer, caused in whole or in part by the Merchant or its Vouchers, products or services, as well as for any unclaimed property liability arising from unredeemed or partially redeemed Vouchers. By purchasing a Voucher, you acquire the right to print a Voucher issued by the participating Merchant and to present the Voucher to the Merchant for redemption according to its terms and the terms of this Agreement. Whether you choose to print and/or redeem the Voucher is within your sole control and at your sole discretion. Neither hopeUP nor the Merchant is responsible for lost or stolen Vouchers or Voucher reference numbers.
Security
If you set up a hopeUP account, you are responsible for providing accurate, current and complete information. Your account is for your sole, personal use, you may not authorize others to use your account, and you may not assign or otherwise transfer your account to any other person or entity. You are responsible for your account user ID and password and all activity that occurs while signed into or while using the Site or Services using your user ID. Please notify hopeUP immediately if you become aware of or suspect that your user ID is being used without authorization. You acknowledge that, although the Internet is often a secure environment, security breaches, interruptions in service or other events may occur that are beyond the control of hopeUP, and hopeUP shall not be responsible for any data lost or intercepted while transmitting information on the Internet or due to a security breach by a third party. You assume all risk when using the Site or Services, including all risks associated with any online or offline interactions with Merchants or other Users of the Site or Services.
Intellectual Property
All software, content and other technology or materials located on or in this Site is the exclusive property of hopeUP or its suppliers or licensors, or is otherwise used with permission of the owner. Without limiting the foregoing, hopeUP owns copyright rights in and to the selection, coordination and arrangement of the content on the Site and any enhancements, modifications or derivative works thereto. ANY COPYING, DISTRIBUTING, TRANSMITTING, POSTING, PUBLISHING, LINKING, DEEP LINKING, OR OTHERWISE MODIFYING OR EXPLOITING THIS SITE WITHOUT THE EXPRESS WRITTEN PERMISSION OF HOPEUP IS STRICTLY PROHIBITED. Any violation of the foregoing may constitute a copyright, trademark or other intellectual property right infringement that may subject you to civil and/or criminal penalties, in addition to hopeUP’s remedies for breach of this Agreement.
User Provided Content
If you upload, post or otherwise make available any content to the Site (“User Provided Content”), you represent that you own or otherwise have all necessary rights (expressly from the owner of all copyrights, trademarks and other proprietary rights therein) to make such User Provided Content publicly available on the Site. You shall not post or otherwise make available any content without the express permission of all rights holders for such content. You hereby grant, and you warrant that the owner of such User Provided Content has expressly granted, hopeUP a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, edit, adapt, publish, translate, distribute and otherwise exploit such User Provided Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed, and you authorize any other end user to access, view, store or reproduce such User Provided Content for that end user’s personal use. You hereby indemnify and hold hopeUP harmless from any claims, damages or liability arising out of any User Provided Content or your breach of this paragraph.
Warranty Disclaimer
No Warranties. HOPEUP PROVIDES THE SITE AND SERVICES (INCLUDING ALL INFORMATION AND CONTENT THEREIN) ON AN "AS IS" AND “AS AVAILABLE” BASIS AND GRANTS NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SITE OR SERVICES (INCLUDING ALL INFORMATION CONTAINED THEREIN), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. HOPEUP DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, UNINTERRUPTED, ALWAYS AVAILABLE, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS, OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. HOPEUP DISCLAIMS LIABILITY FOR, AND NO WARRANTY IS MADE WITH RESPECT TO, THE CONNECTIVITY AND AVAILABILITY OF THE SERVICES. HOPEUP DOES NOT WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF THE INFORMATION AND CONTENT MADE AVAILABLE THROUGH THE SITE OR SERVICES AND EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THIS INFORMATION OR CONTENT. IN ADDITION AND WITHOUT LIMITING THE FOREGOING, HOPEUP MAKES NO REPRESENTATION OR WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING ANY MERCHANT OR ANY PRODUCTS OR SERVICES OF SUCH MERCHANT MADE AVAILABLE THROUGH THE SITE OR SERVICES.
Opinions and Advice. Opinions, advice, statements, or other information or content made available through the Services are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. HOPEUP DOES NOT: (i) GUARANTEE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION PROVIDED ON THE SITE, OR (ii) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE ON THE SITE OR THROUGH THE SERVICES. UNDER NO CIRCUMSTANCES WILL HOPEUP BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE SERVICES, OR TRANSMITTED TO OR BY ANY USERS.
Limitation of Liability
Consequential Damages and Aggregate Liability. IN NO EVENT WILL HOPEUP BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SITE OR SERVICES, INCLUDING WITHOUT LIMITATION DAMAGES RELATED TO ANY INFORMATION RECEIVED FROM THE SITE OR REMOVAL OF CONTENT FROM THE SITE, OR IN CONNECTION WITH ANY TERMINATION OF THIS AGREEMENT OR YOUR ABILITY TO ACCESS THE SITE OR THE SERVICES, FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OR LINE OR SYSTEM FAILURE, OR ANY PRODUCTS OR SERVICES OF MERCHANTS OR ANY INTERACTION WITH A MERCHANT, EVEN IF HOPEUP, OR REPRESENTATIVES THEREOF, ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES OR EXPENSES. IN NO EVENT WILL HOPEUP’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY VOUCHER EXCEED THE AMOUNTS PAID BY A USER TO HOPEUP FOR SUCH VOUCHER, AND IN NO EVENT WILL HOPEUP'S AGGREGATE LIABILITY, IN ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE SERVICES OR THE SITE, EXCEED THE AMOUNTS PAID BY A USER TO HOPEUP DURING THE SIX MONTHS PRIOR TO SUCH USER BRINGING A CLAIM.
No Liability for non-hopeUP Actions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL HOPEUP BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU, OTHER USERS, MERCHANTS, OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SITE, SERVICES OR ANY VOUCHER.
Limitation on Claims. YOU AND HOPEUP AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR USE OF THE SITE OR SERVICES OR ANY VOUCHER MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, AND SUCH CAUSE OF ACTION IS OTHERWISE PERMANENTLY BARRED.
Indemnification
By agreeing to the terms of this Agreement, users of the Site agree to indemnify, defend and hold harmless hopeUP and its Affiliates from and against any and all claims, losses, expenses or demands of liability, including attorneys' fees and costs incurred by hopeUP and its Affiliates in connection with any claim by a third party (including an intellectual property claim) arising out of (i) your User Provided Content, (ii) your use of the Site or Services, or (ii) your violation of this Agreement or any applicable law. Users further agree that they will cooperate as reasonably required in the defense of such claims. hopeUP and its Affiliates reserve the right, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by users, and users shall not, in any event, settle any such claim or matter without the written consent of hopeUP.
Notice and Takedown Procedures; Copyright Agent
If you believe any materials accessible on or from Site infringe your copyright, you may request removal of those materials (or access thereto) from this Site by contacting hopeUP's copyright agent (identified below) and providing the following information:
- Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
- Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
- Your name, address, telephone number and (if available) e-mail address.
- A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
- A statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner's behalf.
- A signature or the electronic equivalent from the copyright holder or authorized representative.
hopeUP's agent for copyright issues relating to this Site can be reached as follows:
Copyright Agent
hopeUP, Inc.
900 Lafayette St.
Suite 703
Santa Clara, CA 95050
408-247-1722
copyrightagent@hopeup.com
You acknowledge that your failure to comply with all of the requirements of this section may result in your DMCA notice being invalid. In an effort to protect the rights of copyright owners, hopeUP maintains a policy for the termination, in appropriate circumstances, of Users of this Site who are repeat infringers.
Trademark Rights
The trademarks and service marks of hopeUP and the hopeUP logo are owned by hopeUP. Any other trademarks, service marks, logos and/or trade names appearing on the Site are the property of their respective owners. Users acknowledge the rights of hopeUP and the respective third parties in those marks. Users may not copy or use any of these marks, logos or trade names except as expressly authorized in this Agreement without the prior written permission of the owner.
Export Control
Software and other related technology or materials from this Site or Services (the "Software") is further subject to United States export controls. No Software may be downloaded from the Site or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other Country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
Choice of Law and Jurisdiction
If there is any dispute arising out of this Agreement or the Site and/or the Services, by using the Site, you expressly agree that any such dispute shall be governed by the laws of the State of California, without regard to its conflict of law provisions, and you expressly agree and consent to the exclusive jurisdiction and venue of the state and federal courts of the State of California, Santa Clara County, for the resolution of any such dispute.
Miscellaneous
This Agreement, together with the Privacy Policy at http://www.hopeup.com/terms-privacy/ and any other legal notices published by hopeUP on the Site or any Voucher, shall constitute the entire agreement between you and hopeUP concerning the subject matter hereof, including the use of the Site, Services and Vouchers. Nothing in this Agreement shall be construed as making either party the partner, joint venturer, agent, legal representative, employer, contractor or employee of the other. Neither party shall have, or hold itself out to any third party as having, any authority to make any statements, representations or commitments of any kind, or to take any action, that shall be binding on the other, except as provided for herein or authorized in writing by the party to be bound. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto.
Contact Information
If you have any questions or need further information as to this Agreement or the Site or Services provided by hopeUP, or need to notify hopeUP as to any legal matters relating to this Agreement or the Site or Services, you may contact hopeUP at:
Legal Department
hopeUP, Inc.
900 Lafayette St.
Suite 703
Santa Clara, CA 95050
info@hopeup.com
Last updated: September 26, 2011
