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Last Updated: July 12, 2021

Section 1. Contractual Relationship.  

Section 1.01 These Terms of Use (“Terms”) constitute a legally binding agreement between you and UPPER, LLC (“UPPER”) governing your access or use of the applications, website, contents, and services (“Services,” as more fully defined below in Section 2), in addition to related information and communications, from within the United States and its territories and possessions, by and from UPPER and its affiliates or licensors, including their respective directors, officers, equity holders, agents, investors, attorneys, representatives, insurers, employees, successors and assigns, (collectively “Affiliates”). In these Terms, the words “including” and “include” mean “including, but not limited to.”

Except as provided below, your access or use of the Services, constitutes your acceptance of and agreement to be bound by these Terms, as well as any future amendments and additions to this Terms, which UPPER and its Affiliates may publish from time to time, and which may be applicable to certain Services, such as policies for a particular activity. Such additional terms will be disclosed to you in a separate communication between you and UPPER. Additional terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Additional terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.

Your continued access use of Services shall constitute confirmation of your acceptance and agreement to be by bound these Terms. Furthermore, UPPER and its Affiliates reserve the right to immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.

The use of all personal data you submit to UPPER and its Affiliates regardless of submission method, or which UPPER and its Affiliates collect about you is governed by UPPER’s Privacy Policy, a copy of which may be found here. 

The Privacy Policy and the Terms together form and are hereinafter referred to as the “Agreement.”

IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT AND ABIDE BY ITS TERMS, YOU MAY NOT USE OR ACCESS THE SERVICES.

PLEASE NOTE: SECTION 7, WHICH CONTAINS JURISDICTION-SPECIFIC PROVISIONS, SPECIFIES HOW USERS AND UPPER RESOLVE DISPUTES. SECTION 7 CONTAINS AN ARBITRATION PROVISION. THIS PROVISION WITH LIMITED EXCEPTION, REQUIRES YOU TO SUBMIT DISPUTES AND CLAIMS YOU HAVE AGAINST UPPER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS. PLEASE READ IT CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS. BY ACKNOWLEDGING THE TERMS OF SERVICE AND/OR ACCESSING/USING UPPER’S SERVICES, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS AGREEMENT (INCLUDING THE DISPUTE RESOLUTION AND ARBITRATION PROVISION) AND YOU ACCEPT ALL OF ITS TERMS.

Section 2. Services.  The Services comprise applications and related services (each, an “Application”), which enable individuals and/or businesses (“Clients”) to arrange and schedule Services provided by a remote hands engineer or other qualified contractor (“Third Party Provider”) for an upfront hourly price. 

THIRD PARTY PROVIDERS ARE INDEPENDENT CONTRACTORS OF UPPER AND NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, OR FRANCHISEES OF UPPER. UPPER DOES NOT PERFORM SERVICES AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM SERVICES. BY CONNECTING INDIVIDUALS AND BUSINESSES SEEKING SUCH SERVICES WITH THIRD PARTY PROVIDERS, UPPER OPERATES AS AN ONLINE MARKETPLACE THAT CONNECTS CLIENTS WITH THIRD PARTY PROVIDERS WHO WISH TO PERFORM RELATED REMOTE HANDS AND DATA CENTER OPERATIONS AND MAINTENANCE SERVICES. CLIENTS AND THIRD PARTY PROVIDERS HEREBY ACKNOWLEDGE THAT UPPER DOES NOT SUPERVISE, SCOPE, DIRECT, CONTROL OR MONITOR A THIRD PARTY PROVIDER’S WORK AND EXPRESSLY DISCLAIMS (TO THE EXTENT PERMITTED BY LAW) ANY RESPONSIBILITY AND LIABILITY FOR THE WORK PERFORMED AND THE TASKS IN ANY MANNER, INCLUDING BUT NOT LIMITED TO A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OR CONDITION OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY LAW, STATUTE, ORDINANCE, REGULATION, OR CODE. FURTHER, CLIENTS AND THIRD PARTY PROVIDERS ACKNOWLEDGE THAT THE ABILITY TO HIRE A THIRD PARTY PROVIDER THROUGH THE USE OF UPPER SERVICES DOES NOT ESTABLISH UPPER AS A PRINCIPAL OF A THIRD PARTY PROVIDER.

Any reference on UPPER and its Affiliates’ applications or websites to a Third Party Provider being licensed or credentialed in some manner, or “badged,” “reliable,” “reliability rate,” “elite,” “great value,” “background checked,” “vetted” (or similar language) designations indicates only that the Third Party Provider has completed a relevant account registration process or met certain criteria and does not represent anything else. Any such description is not an endorsement, certification or guarantee by UPPER of such Third Party Provider’s skills or qualifications or whether they are licensed, insured, trustworthy, safe, or suitable. Instead, any such description is intended to be useful information for Clients to evaluate whether to initiate the performance of Services. UPPER enables connections between Clients and Third Party Providers for the fulfillment of Services and is not responsible for the performance, claims, or communications of Third Party Providers, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Third Party Providers, nor of the integrity, responsibility, competence, qualifications, or any of the actions or omissions whatsoever of any Third Party Providers. UPPER makes no warranties or representations about the suitability, reliability, timeliness, or accuracy of the Tasks requested or services provided by, or the communications of or between, Clients or Third Party Providers, whether in public or private, via on- or off-line interactions, or otherwise howsoever.

Section 3. Third Party Providers Performance of Underlying Services.  

Background Checks.  Third Party Providers are subject to a review process before they may register or contract with UPPER, which may include but is not limited to identity verification and criminal background checks, using third party services as appropriate (“Background Checks”). Although UPPER may perform Background Checks, UPPER cannot confirm that any Third Party Provider is who they claim to be, and UPPER cannot and does not assume any responsibility for the accuracy or reliability of Background Check information. UPPER will not be liable for any false or misleading statements made by Third Party Providers or for inaccuracies contained in the Background Checks.

Performance of Underlying Remote Hands Services.  UPPER does not perform the underlying remote hands services or data center operations and maintenance services and does not employ people to perform such services. Third Party Providers operate as independent contractors. UPPER does not control or direct the Third Party Provider’s performance of the underlying services. UPPER only provides the Third Party Provider with the work location and hours, to be agreed to and accepted by the Third Party Provider. provide Third Party Providers own materials, tools, and supplies to complete their work. Third Party Providers are free to accept or reject Clients and are not penalized for rejecting Clients or contracts, though if Third Party Providers accept a Client or contract through UPPER, they are expected to complete performance of the underlying services.

UPPER is not an employment agency service or business and UPPER is not an employer of any Third Party Provider. Third Party Providers acknowledge and confirm that they are responsible for exercising their own business judgment in accepting a Client and performing Services and that, depending on how they exercise such business judgment, there is a chance for individual profit or loss.

NEITHER UPPER NOR AFFILIATES ARE RESPONSIBLE OR LIABLE FOR THE CONDUCT, ACTS, OR OMISSIONS, WHETHER ONLINE OR OFFLINE, OF ANY THIRD PARTY PROVIDER. TO THE EXTENT PERMITTED BY LAW, YOU HEREBY RELEASE UPPER AND AFFILIATES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, OR DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SERVICES.

No Agency or Employment.  No agency, partnership, joint venture, employer-employee, or franchiser-franchisee relationship is intended or created by this Agreement.

Section 4. Client Access, Representations and Warranties.

Client Accounts.  To use most aspects of the Services, you must register for and maintain an active user Services account (“Account”). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account, unless a specific Service permits otherwise. Account registration requires you to submit to UPPER certain personal information, such as your name, address, mobile phone number and age. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information may result in your inability to access or use the Services. You are responsible for all activity that occurs under your Account, and you agree to always maintain the security and secrecy of the details of your Account. Unless otherwise permitted by UPPER in writing, you may only possess one Account.

In initiating Services, Clients, in their sole discretion, determine whether they will be present or not when Services are performed. Clients agree that if someone other than them books Services on their behalf or is present in their stead when Services are performed, they are appointing that person as their agent (“Client’s Agent”) and the Third Party Provider may take and follow direction from the Client’s Agent as if such direction were given from the Client him or herself. If you are a Client’s Agent and accessing and using the Services on behalf of a Client, you represent that you have the authority to act as their agent and to bind that person as the principal to all provisions of the Agreement. Client’s Agent may authorize any applicable waiver of the Client’s scoping, direction, or instruction of the Third Party Provider’s work or performance of remote hand services in the Client’s stead. Client agrees that such direction and/or waiver is valid against Client and Client’s Agent, and Client shall be responsible and liable for all such direction and/or waiver as if made by Client him or herself. Client assumes full and sole responsibility for the acts and omissions of Client’s Agents. 

Client Representations and Warranties.  All Clients represent and warrant that:

You are at least of the legally required age in the jurisdiction in which you reside (18 years of age or older for U.S. based users), and are otherwise capable of entering into binding contracts;

You have the right, authority, and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide;

Where you enter into this Agreement on behalf of a company or other organization, you have authority to act on behalf of that entity and to bind that entity to this Agreement;

You will not authorize third parties to use your Account, nor will you assign or otherwise transfer your Account to any other person or entity;

You have read, understand, and agree to be bound by these Terms of Service, the Privacy Policy, and all amendments and additions;

You agree to comply with all applicable laws when accessing or using the Services;

You will only access or use the Services for lawful purposes. 

You will not in your access or use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party;

Deactivation and Suspension.  If you fail to comply with this Agreement, you may be denied access to or use of the Services and UPPER may charge you a cancellation fee for a transaction that could not be completed because of your failure to comply. In certain instances, you may be asked to provide proof of identity or other method of identity verification to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity or other method of identity verification.

UPPER may suspend your right to access or use of the Services pending its investigation of a potential breach by you of this Agreement. UPPER may deactivate your account or limit your use of the Services upon its determination that you breached a provision of this Agreement (a “User Breach”). UPPER will provide you with written notice of its determination as required by law, unless there is reason to believe the User’s account has been compromised such that the notice would go to the wrong person, or notice would otherwise be counterproductive or would create a risk to safety.  If you wish to appeal this determination, please contact UPPER within 15 days of receipt of such notice with the grounds for your appeal by (i) mail; or (ii) by email from the email address associated with your Account to: info@upper.services.

If UPPER suspends or deactivates your account or limits your use of the Services pursuant to the above, you are thereafter prohibited from registering and creating a new account under your name or business name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party.

Even after your right to use the account or access or use of the Services is suspended, terminated, or limited, this Agreement will remain enforceable against you. UPPER reserves the right to take appropriate legal action pursuant to the Agreement.

UPPER reserves the right to modify or discontinue, temporarily or permanently, all or any portion of your account and your right to access or use of the Services at its sole discretion. UPPER will provide you with notice of any such modification or discontinuation as required by law. To the extent permitted by law, UPPER shall not be liable to you for any modification or discontinuance thereof. UPPER has the right to restrict anyone from completing registration for an account if such person may threaten the safety and integrity of UPPER and the Services, or if such restriction is necessary to address any other reasonable business concern.

You may terminate this Agreement at any time by ceasing all access to or use of the Services and deactivating your account; provided, however, if you terminate this Agreement, you still may be responsible for paying Charges incurred prior to termination (defined below).

Network Access and Devices.  You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. UPPER does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.

Section 5. Payment.  You understand that use of the Services may result in charges to you for the services and goods you receive (“Charges”). UPPER will receive and/or enable your payment of the applicable Charges for services obtained through your use of the Services. Charges will be inclusive of applicable taxes where required by law. Charges may include other applicable fees and/or surcharges including a booking fee.

All Charges and payments will be enabled by UPPER using monthly invoices. Charges paid by you are final and non-refundable, unless otherwise determined by UPPER.

As between you and UPPER, UPPER reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time in UPPER’s sole discretion. Further, you acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times of high demand. UPPER will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. UPPER may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. You may elect to cancel your request for Services at any time prior to the commencement of such Services, in which case you may be charged a cancellation fee on a Third Party Provider’s behalf. After you have received services or goods obtained through the Service, you will have the opportunity to rate your experience and leave additional feedback. UPPER may use the proceeds of any Charges for any purpose, subject to any payment obligations it has agreed to with any Third Party Providers or other third parties.

Charges you incur will be owed and paid directly to UPPER or its Affiliates, where UPPER is solely liable for any obligations to Third Party Providers. In such cases, you retain the right to request lower Charges from UPPER for services or goods received by you from a Third Party Provider at the time you receive such services, and UPPER will respond accordingly to any request from you to modify the Charges for a particular service. 

Section 6. Intellectual Property Rights and Use of Services Restrictions.  All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, typefaces, and other content, including UPPER designs, trademarks, and logos (collectively “Proprietary Material”) that users see or read through UPPER websites or applications is owned by UPPER. UPPER Platform is owned by UPPER. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. UPPER owns all Proprietary Material, as well as the coordination, selection, arrangement, and enhancement of such Proprietary Materials. The Proprietary Material is protected by domestic and international laws governing copyright, patents, and other proprietary rights. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from UPPER websites or applications without express prior written consent. Any use of such Proprietary Material other than as permitted herein is expressly prohibited.

Ownership.  The Proprietary Material, Services and all rights therein are and shall remain UPPER’s property. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner UPPER’s Proprietary Material, products, and service names. 

License.  Subject to your compliance with these Terms, UPPER grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Applications (ii) access and use any content, information and related materials that may be made available through the Services. Any rights not expressly granted herein are reserved by UPPER.

Restrictions.  You may not: (i) remove any Proprietary Material from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by UPPER; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.

Section 7 Arbitration.  Your access or use of the Services, constitutes your acceptance of and agreement to be required to resolve any claim that you may have against UPPER on an individual basis in arbitration, as set forth in this Section 7. 

This will preclude you from bringing any class, collective, or representative action against UPPER, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against UPPER by someone else.

Agreement to Binding Arbitration Between You and UPPER.  To the fullest extent permitted by applicable law, you and UPPER agree that any dispute, claim or controversy arising out of or relating to (i) this Agreement or the existence, breach, termination, enforcement, interpretation or validity thereof, or (ii) your access to or use of the Services or performance of underlying services at any time, whether before or after the date you agreed to the Agreement, will be settled by binding arbitration between you and UPPER, and not in a court of law (“Claim”). 

Notwithstanding the foregoing, where you allege claims of sexual assault or sexual harassment occurring in connection with your use of the Services, you may elect to bring those claims in a court of competent jurisdiction instead of arbitration. UPPER agrees to honor your election of forum with respect to your individual sexual assault or sexual harassment claim but in so doing does not waive the enforceability of this Section 7 as to any other provision (including, but not limited to, the waivers provided in the following paragraph, which will continue to apply in court and arbitration), controversy, claim or dispute.

You acknowledge and agree that you and UPPER are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and UPPER otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and UPPER each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.

Rules and Governing Law.  The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Section 7. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.

The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability, or formation of this Section 7, including any claim that all or any part of this Section 7 is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Agreement is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.

Notwithstanding any choice of law or other provision in the Agreement, the parties agree and acknowledge that this Section 7 evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Section or the enforcement thereof, then that issue shall be resolved under the laws of the Commonwealth of Virginia.

Process.  A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration – Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). The Arbitrator will be either (i) a retired judge; or (ii) an attorney specifically licensed to practice law in the Commonwealth of Virginia and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.

As part of the arbitration, the parties will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim(s). The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual Claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision, which shall explain the award given and the findings and conclusions on which the decision is based.

The arbitrator will decide the substance of all Claims in accordance with applicable law and will honor all claims of privilege recognized by law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

Location and Procedure.  Unless you and UPPER otherwise agree, the arbitration will be conducted in the county nearest to you where UPPER maintains an office. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and UPPER submit to the Arbitrator, unless you request a hearing, or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator’s Decision.  The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. If you prevail in arbitration, you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. UPPER will recover attorneys’ fees and expenses if UPPER prevails in arbitration under applicable law.

Fees.  It is your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. 

Additionally, except as required by law or the applicable AAA Rules, it is your responsibility to pay your own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the Claim(s) were litigated in a court, such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.), where applicable.

Changes.  Notwithstanding the provisions in Section 1 above, regarding consent to be bound by amendments or additions to the Agreement, if UPPER changes this Section 7 after the date you first agreed to the Agreement (or to any subsequent amendments or additions to the Agreement), you may reject any such change by providing UPPER written notice of such rejection within 30 days of the date such change became effective, as indicated in the “Effective” date above. This written notice must be provided either: (i) by mail; or (ii) by email from the email address associated with your Account to: info@upper.services. To be effective, the notice must include your full name and clearly indicate your intent to reject changes to Section 7. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and UPPER in accordance with the arbitration provision as of the date you first agreed to the Agreement (or to any subsequent amendments or additions to the Agreement).

Severability and Survival.  If any portion of this Section 7 is found to be unenforceable or unlawful for any reason, (i) the unenforceable or unlawful provision shall be severed from the Agreement; (ii) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of Section 7 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to Section 7; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.

Section 8 Disclaimers; Limitation of Liability; Indemnity.

Disclaimer.

THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” UPPER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, UPPER MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. UPPER DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

Limitation of Liability.  Your access or use of the Services constitutes your acceptance of and agreement that there shall be certain limitations of liability from UPPER to you and third parties. Therefore, you agree not to hold UPPER and its Affiliates, liable for any claims, demands, damages, expenses, losses, governmental obligations, suits, and/or controversies of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, direct, indirect, incidental, actual, consequential, economic, special, or exemplary, including attorney’s fees and costs (collectively, “Liabilities” ) that have arisen or may arise, relating to your or any other party’s access or use of or inability to use the Services, including without limitation any Liabilities arising in connection with the conduct, act or omission of any Third Party Provider (including without limitation stalking, harassment that is sexual or otherwise, acts of physical violence, and destruction of personal property), any dispute with any Third Party Provider, any instruction, advice, act, or service provided by Clients Agents, and any destruction of Client premises, data, or intellectual property.

UNDER NO CIRCUMSTANCES WILL UPPER AND ITS AFFILIATES BE LIABLE FOR, AND YOU HEREBY RELEASE UPPER AND ITS AFFILIATES FROM,ANY DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, PERSONAL INJURY, OR PROPERTY DAMAGE) ARISING OUT OF OR IN ANY WAY RELATED OR CONNECTED TO, OR RESULTING FROM ANY USE OF THE SERVICES, REGARLDESS O OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF UPPER, EVEN IF UPPER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

UPPER SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF UPPER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UPPER SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND UPPER’S REASONABLE CONTROL. UPPER ALSO SHALL NOT ACCEPT AN YLIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE SERVICES. YOU ACKNOWLEDGE THAT THIRD PARTY PROVIDERS, PROVIDING REMOTE HANDS SERVICES REQUESTED MAY NOT BE PROFESSIONALLY LICENSED.

THE SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE REMOTE HANDS SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT UPPER HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY REMOTE HANDS SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.

The limitations and disclaimer in this Section do not purport to limit liability or alter your rights that cannot be excluded under applicable law. Because some states or jurisdictions do not allow the exclusion of or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, UPPER’s liability shall be limited to the extent permitted by law. This provision shall have no effect on UPPER’s Choice of Law provision as set forth below.

If, notwithstanding, the foregoing exclusions, it is determined that UPPER and its Affiliates are liable for damages, in no event will the aggregate liability, whether arising in contract, tort, strict liability or otherwise, exceed the total fees paid by the Client to UPPER, during the six (6) months prior to the time such claim arose, to the extent permitted by applicable law. 

Indemnity.  You hereby agree to indemnify, defend, and hold harmless UPPER and its Affiliates from and against any and all Liabilities incurred in connection with (i) your use or inability to use, or your participation of, or for services obtained through your use of the Services; (ii) your breach or violation of this Agreement; (iv) your violation of any law, or the rights of any user or third party, including Third Party Providers; (v) your failure to abide by your representations and warranties in Section 4; (vi) any content submitted by you or in using your account to UPPER, including but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful; and (vii) the acts or omissions of any Client’s Agents. UPPER reserves the right, in its own sole discretion, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the prior written consent of UPPER.

Release.  If you are a California resident, you waive California Civil Code Section 1542, which provides:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.

UPPER and its Affiliates cannot and do not guarantee that any personal information supplied by you will not be misappropriated, intercepted, deleted, destroyed, or used by others.

Section 9 General Matters.

Applicability.  Failure by UPPER to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. 

You hereby acknowledge and agree that we may assign or transfer this Agreement without your consent, including but not limited to assignments: (i) to a parent or subsidiary, (ii) to an acquirer of assets, or (iii) to any other successor or acquirer. Upon the effective date of the assignment of the Agreement (a) UPPER shall be relieved of all rights, obligations and/or liabilities to you arising in respect of events postdating the effective date of the assignment and, (b) the assignee entity shall replace UPPER for the performance of this Agreement. This Agreement may not be assigned or transferred by you without our prior written approval. Any assignment in violation of this provision shall be null and void. This Agreement will inure to the benefit of UPPER, its successors and assigns. All parts of this Agreement which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement or your use of the Services.

Choice of Law.  This Agreement is governed by and construed in accordance with the laws of the Commonwealth of Virginia, in the United States of America, without giving effect to any conflict of law principles, except as may be otherwise provided in Section 7 above or in supplemental terms applicable to your region. However, the choice of law provision regarding the interpretation of the Agreement is not intended to create any other substantive right to non-Virginians to assert claims under Virginia law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in Section 7 of the Terms, are only intended to specify the use of Virginia law to interpret the Agreement and the forum for disputes asserting a breach of the Agreement, and these provisions shall not be interpreted as generally extending Virginia law to you if you do not otherwise reside in Virginia. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in Section 7 or to any arbitrable disputes as defined therein. Instead, as described in Section 7, the FAA shall apply to any such disputes.

Assignment.  You may not assign the Agreement without UPPER’s prior written approval. UPPER may assign the Agreement without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of UPPER’s equity, business, or assets; or (iii) a successor by merger. Any purported assignment in violation of this provision shall be void. No joint venture, partnership, employment, or agency relationship exists between you, UPPER or any Third Party Provider because of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such Section shall be struck and the remaining provisions shall be enforced to the fullest extent under law. UPPER’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by UPPER in writing. This provision shall not affect the Severability and Survival provision of Section 7.

No Rights of Third Parties.  The provisions of this Agreement are for the sole benefit of Client, and their permitted successors and assigns and they will not be construed as conferring any rights to any third party (including any third party beneficiary rights except as set forth in the provision covering assignment) or to give any person or entity other than the Client any interest, remedy, claim, liability, reimbursement, claim of action or any other claim of action with respect to or in connection with any agreement or provision contained herein or contemplated hereby. None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement, provided, however, that a Client’s Agent may act in the name of and on behalf of his or her Client.

Notices and Consent to Receive Notices Electronically.  You consent to receive any agreements, notices, disclosures, and other communications (collectively, “Notices”) to which this Agreement refers electronically, including without limitation by email or by UPPER posting Notices on the Sites. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. Unless otherwise specified in this Agreement, all Notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day it is shown as delivered by the overnight delivery service’s tracking information, if sent for next day delivery by a recognized overnight delivery service.

Consent to Electronic Signatures.  Your access or use of the Services, constitutes your acceptance of and agreement to transact electronically with UPPER. You also agree to the following: (i) your electronic signature is the legal equivalent of your manual signature and has the same legal effect, validity and enforceability as a paper-based signature; (ii) your use of a keypad, mouse or other device to select an item, button, icon or similar act/action, constitutes your signature as if actually signed by you in writing; and (iii) no certification authority or other third party verification is necessary to validate your electronic signature, and the lack of such certification or third party verification will not in any way affect the enforceability of your electronic signature.

Section 11. Acknowledgement and Consent.

I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE FOREGOING TERMS OF SERVICE, AS WELL AS THE PRIVACY POLICY, AND AGREE THAT MY USE OF UPPER’S SERVICES IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.