Please read these Terms of Service fully and carefully before using www.joinupside.com (the “Site”) and the services, features, content or applications offered by UPSIDEHOM, INC. (OR “Upside,” “we”, “us” or “our”) (together with the Site, the “Services”). These Terms of Service set forth the legally binding terms and conditions for your use of the site www.joinupside.com the Services.
1. Acceptance of Terms of Service
a. By registering for and/or using the Services in any manner, including but not limited to visiting or browsing the Site, you agree to these Terms of Service and all other operating rules, policies and procedures that may be published from time to time on the Site by us, each of which is incorporated by reference and each of which may be updated from time to time without notice to you.
b. Certain of the Services may be subject to additional terms and conditions specified by us from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.
c. These Terms of Service apply to all users of the Services, including, without limitation, users who are contributors of content, information, and other materials or services, registered or otherwise.
You represent and warrant that you are at least 18 years of age. If you are under age 18, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party.
To sign up for the Services, you may be required to register for an account on the Services (an “Account”). You must provide accurate and complete information and keep your Account information updated. You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use as a username a name subject to any rights of a person other than you without appropriate authorization; or (iii) use, as a username, a name that is otherwise offensive, vulgar or obscene.
Your Account information may include information that is personal to you, such as your name, email address and phone number (collectively, “personal details”). You may only provide your own personal details. You may not provide personal details of any third person. You must update your Account information to reflect any change to your personal details. If at any time any portion of your Account information is inaccurate or incomplete, or if you otherwise violate these Terms of Service, we may in our sole discretion and without advance notice choose to suspend or terminate your access to Services, your Account or both.
You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You may never use another person’s user account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services, breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account by sending a request to email@example.com.
4. Upside Membership
As part of the Services, you may apply to become a member of the Upside community (such members, “Members,” and such membership, “Upside Membership”). Members have access to certain residential Services, including access to accommodations in Upside’s network of communities. You can learn more about our Services and communities. An application for Upside Membership may involve several steps, including: (i) providing certain personal details, such as your name, email address and phone number; (ii) answering several optional questions about yourself, such as your housing budget, commuting needs and other housing preferences; (iii) providing payment information to a third-party payment processor that we use (the “Payment Processor”) such as direct debit information for an account with a financial institution or a credit card for the purpose of future processing of any payments to us that you authorize, such as Upside Membership, deposit and housing rental fees; (iv) electing to share certain personally identifiable information with third party websites, services or applications for the purposes of running a background or credit check; (v) agreeing to pay the Membership Fee (as defined in the Membership Agreement) in the event that Member is determined not to be in Good Standing (as defined in the Membership Agreement) as a Member; and (vi) a brief phone interview with one of our team members. We reserve the right to review applications for Upside Membership to confirm that the applicant meets the criteria for membership, as determined in our sole discretion. We may reject or approve applications for Upside Membership in our sole discretion. If you are approved for an Upside Membership, you will have the opportunity to review the Upside Membership Agreement (“Membership Agreement”) and upon execution of the Membership Agreement you will become a Member and the Membership Agreement, along with this Agreement, will govern your use of the Services.
a. Definition. For purposes of these Terms of Service, the term “Content” includes, without limitation, information, data, text, photographs, videos, audio clips, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. For the purposes of this Agreement, “Content” also includes all Content accessed, created and/or posted by any Member.
b. Content. You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any Content you access on or through the Services is or will continue to be accurate.
c. Notices and Restrictions. The Services may contain Content specifically provided by us, our partners or our users and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
d. Use License. Subject to these Terms of Service, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for other than purposes of using the Services is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right.
e. Availability of Content. We do not guarantee that any Content will be made available on the Site or through the Services. We reserve the right to, but do not have any obligation to, (i) remove, edit or modify any Content in our sole discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have violated these Terms of Service), or for no reason at all and (ii) to remove or block any Content from the Services.
6. Rules of Conduct
a. As a condition of use, you promise not to use the Services for any purpose that is prohibited by these Terms of Service. You are responsible for all of your activity in connection with the Services.
b. You shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, that:
infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty;
you know is false, misleading, untruthful or inaccurate;
is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion;
constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”);
contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party;
impersonates any person or entity, including any of our employees or representatives; or
includes anyone’s identification documents or sensitive financial information.
c. You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or “spam” on the Services; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site; (vi) harvest or scrape any Content from the Services; or (vii) otherwise take any action in violation of our guidelines and policies.
d. You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
e. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.
7. Third Party Services
The Services may permit you to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Services. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.
a. Third Party Limitations: Member acknowledges and agrees that the scope of the services provided by Upside will be dependent on certain limitations imposed by Member and/or Member’s representative and on certain subjective assessments of the Member’s condition by Upside and/or Member’s representative. Upside does not and cannot warrant the quality of any third-party services and does not assume liability for the actions of third-party service providers and vendors.
b. Indemnification and Hold Harmless: Member agrees that it will indemnify and hold harmless Upside against any loss, cost, expense or liability (including reasonable attorney’s fees and costs) arising from any third-party claim based upon the negligence or willful misconduct of the Member.
c. Limitation of Liability: Except for the indemnification obligations listed above, neither party is liable to the other for consequential, incidental, indirect, punitive or special damages, including commercial loss and lost profits, however caused and regardless of legal theory or foreseeability, directly or indirectly arising under these Terms, even if such party has been apprised of the possibility of such damages.
8. Payments and Billing.
a. Paid Services. Certain of our Services may be subject to payments now or in the future (the “Paid Services”). Please see our how it works page for a description of the current Paid Services. Please note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of this Agreement.
b. Billing. We use the Payment Processor to bill you through a payment account, such as a bank account or debit or credit card, linked to your Account on the Services (your “Billing Account”) for use of the Paid Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for error by the Payment Processor. By choosing to use Paid Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms and you authorize us, through the Payment Processor, to charge your chosen payment provider (your “Payment Method”). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
c. Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
d. Recurring Billing. Some of the Paid Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. We may submit periodic charges (e.g., monthly) without further authorization from you, until you provide prior notice (receipt of which is confirmed by us) that you have terminated this authorization or wish to change your payment method. Such notice will not affect charges submitted before we reasonably could act.
e. Current Information Required. You must provide current, complete and accurate information for your billing account. You must promptly update all information to keep your billing account current, complete and accurate (such as a change in billing address, credit card number, or credit card expiration date), and you must promptly notify us or our payment processor if your payment method is canceled (e.g., for loss or theft) or if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your user name or password. Changes to such information can be via firstname.lastname@example.org If you fail to provide any of the foregoing information, you agree that we may continue charging you for any use of paid services under your billing account unless you have terminated your paid services as set forth above.
f. Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
g. Auto-Renewal for Subscription Services. Unless you opt out of auto-renewal, which can be done via emailing email@example.com, any Subscription Services you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. If you terminate a Subscription Service, you may use your subscription until the end of your then-current term; your subscription will not be renewed after your then-current term expires. However, you won’t be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.
h. Reaffirmation of Authorization. Your non-termination or continued use of a Paid Service reaffirms that we are authorized to charge your Payment Method for that Paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Service.
i. Free Trials and Other Promotions. Any free trial or other promotion that provides access to a Paid Service must be used within the specified time of the trial. You must stop using a Paid Service before the end of the trial period in order to avoid being charged for that Paid Service. If you cancel prior to the end of the trial period and are inadvertently charged for a Paid Service, please contact us at firstname.lastname@example.org.
We may terminate your access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your membership. If you wish to terminate your Account, you may do so by following the instructions on the Site or via emailing email@example.com. Any fees paid hereunder are non-refundable. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
10. Warranty Disclaimer
a. We have no special relationship with or fiduciary duty to you. You acknowledge that We have no duty to take any action regarding:
which users gain access to the Services, including which users are approved as Upside Members;
what Content you access via the Services; or
how you may interpret or use the Content.
b. You release us from all liability for you having acquired or not acquired Content through the Services. We make no representations concerning any Content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or Content contained in or accessed through the Services.
c. THE SERVICES AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK.
You shall defend, indemnify, and hold harmless us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to your use or misuse of, or access to, the Services, Content, violation of these Terms of Service, or infringement by you, or any third party using your Account or identity in the Services, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
12. Disclaimer; Limitation of Liability
You are solely responsible for your interactions and arrangements with other individuals, including users and Members. We make no representations or warranties as to (i) the conduct of users or Members, (ii) users’ or Members’ compatibility with current or future Members, including fellow Upside community residents or neighbors, or (iii) any information concerning any activities or arrangements suggested by users or Members.
IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (I) FOR ANY DAMAGES ARISING OUT OF OR RELATING TO YOUR OR ANYONE ELSE’S CONDUCT IN CONNECTION WITH THE SERVICES, INCLUDING, WITHOUT LIMITATION BODILY INJURY, EMOTIONAL DISTRESS AND ANY DAMAGES RESULTING IN ANY WAY FROM COMMUNICATIONS, MEETINGS, ACTIVITIES OR ARRANGEMENTS WITH USERS, MEMBERS OR PERSONS YOU MAY OTHERWISE MEET THROUGH THE SERVICES, (II) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING), (III) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (IV) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF the greater of (A) fees paid to us for the particular Services during the immediately previous three (3) month period or (B) $500.00.
You agree to take reasonable precautions and exercise the utmost personal care in all interactions with other users or Members or any other individual you come into contact with through the Services, particularly if you decide to meet such users, Members or individuals in person. You understand and agree that we make no guarantees, express or implied, regarding your compatibility with users, Members or other individuals you meet through the Services, including any fellow Upside community residents or neighbors. For example, you should not, under any circumstances, provide your financial information (e.g., credit card or bank account numbers) to other individuals. We strongly advise you to use the utmost caution before sharing any personally identifiable information with others, including users and Members. We do not and cannot assure you that it is safe for you to have direct contact with any other individual that you come into contact with through the Services. If you believe that any individual is harassing you or is otherwise using personal information about you for unlawful purposes, we encourage you to first inform local law enforcement authorities, and then to contact us at firstname.lastname@example.org so that we may take appropriate action.
13. Governing Law and Jurisdiction
These Terms of Service shall be governed by and construed in accordance with the laws of the State of Delaware, including its conflicts of law rules, and the United States of America. YOU AGREE THAT ANY DISPUTE (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) ARISING FROM OR RELATING TO THE SUBJECT MATTER OF THESE TERMS OF SERVICE OR YOUR RELATIONSHIP WITH US SHALL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION’S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. YOU ARE WAIVING THE ABILITY TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US, INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms of Service.
We reserve the right, in our sole discretion, to modify or replace any of these Terms of Service, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. While we will timely provide notice of modifications, it is also your responsibility to check these Terms of Service periodically for changes. Your continued use of the Services following notification of any changes to these Terms of Service constitutes acceptance of those changes.
a. Entire Agreement and Severability. These Terms of Service are the entire agreement between you and us with respect to the Services, including use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder
b. Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
c. Assignment. These Terms of Service are personal to you, and are not assignable, transferable or sub-licensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
d. Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
e. Notices. Unless otherwise specified in these Term of Service, all notices under these Terms of Service 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 e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to email@example.com.
f. No Waiver. Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
g. Headings. The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation.
16. Delivery; Upside Property; Alterations and Improvements.
a. Condition on Delivery. Upside shall deliver the Unit to the Member in its as-is, where-is condition; provided, however, Upside shall be obligated to deliver the Unit (i) with standard housekeeping service performed on or prior to the Occupancy Commencement Date, (ii) free and clear of all members and occupants, and (iii) free of all of Upside’s personal property, except as expressly set forth herein for the Unit FF&E.
b. Delivery of Unit. Notwithstanding anything to the contrary in Section 3.1 of this Member Agreement, Upside shall deliver the Unit’s common areas furnished with Unit FF&E, appliances, (e.g. – windows and doors), appliances, and electronics in good working condition, reasonable wear and tear excepted, and as more particularly identified on the Inventory and Condition Form (the “Inventory and Condition Form”) in substantially the form attached hereto as Exhibit B. If the Member believes any defects or deficiencies exists within the Unit or with the Unit FF&E, the Member shall submit to Upside the Inventory and Condition Form with a signed list of any existing defects or deficiencies by not later than three (3) business days following the Occupancy Commencement Date. In the event that material defects or deficiencies in the Unit are discovered by the Member within the initial three (3) business days following the Occupancy Commencement Date, Upside shall coordinate the repair or correct such defects or deficiencies, at Upside’s or landlord’s expense. Upside shall have the right to dispute any defects or deficiencies noted by Tenant and the parties shall reasonably cooperate to resolve any such disputes.
c. If Upside cannot deliver possession of the Unit to the Member on the Occupancy Commencement Date for any reason, Upside will not be liable for the delay, nor will this affect this Member Agreement’s validity, or extend the term of the Member Agreement. However, the Member will not be obligated to pay the Fees or perform any other obligation under this Member Agreement until Upside tenders possession of the Unit to the Member. If Upside has not tendered possession of the Unit to the Member within three (3) days of the Occupancy Commencement Date, the Member may cancel this Member Agreement at any time before Upside tenders possession of the Unit.
17. Upside Right of Entry and Access.
a. The Member shall permit Upside and its agents, employees, contractors, repairers, servicers, vendors, Upside representatives, Upside’s landlord, and all authorized landlord parties under Upside’s lease for the Unit or other persons (the “Upside Authorized Parties”) to enter the Unit prior to the expiration or earlier termination of the Term to inspect the same to provide services, conduct routine maintenance or maintenance requests, make repairs thereto (although nothing contained in this Section 4 shall be construed to require Upside to make any such repairs) and to perform any obligation that Member has failed to perform under this Member Agreement. Upside shall also be entitled to enter the Unit if it appears to have been abandoned by the Member or otherwise, as permitted by applicable law or to protect Upside’s interest in the Unit. If the Member, Authorized Occupants, and all other invitees of any Member (the “Member Related Parties”) are present, then Upside Authorized Parties, may peacefully enter the Unit at reasonable times, or if nobody is in the Unit, then Upside Authorized Parties may enter peacefully and at reasonable times by duplicate or master key (or by breaking a window or other means when necessary in emergencies) if:
i. written notice of Upside’s intent to enter is posted two (2) days in advance of the entry on the primary entrance door to the Unit. The notice will state the intended time and purpose of the entry.
ii. entry is for: reasonable purposes, including without limitation, in the event of an emergency; housekeeping; responding to the Member’s request; making repairs or replacements; estimating repair or refurbishing costs; performing pest control; doing preventive maintenance; delivering, installing, reconnecting, or replacing appliances, furniture, equipment, or access control devices; removing health or safety hazards (including hazardous materials), or items prohibited under Upside rules; removing unauthorized animals; inspecting when immediate danger to person or property is reasonably suspected; allowing entry by a law officer with a search or arrest warrant, or in hot pursuit; showing the Unit to prospective residents (after check-out or vacate notice has been given); or showing apartment to government inspectors for the limited purpose of determining housing and fire ordinance compliance by Upside and to lenders, appraisers, contractors, prospective buyers, or insurance agents; and to address or prevent a violation of Upside Rules and Regulations, which can be accessed online from the member portal.
b. Keys and Locks. Member acknowledges and agrees that the locks or access code for the Unit shall not be changed, altered, or replaced, nor shall new locks be added by the Member. The Member will access the Unit either using a lockbox with keys to the Building and the Unit or via an access code that will be emailed to the Member designated for receipt of such access code. Upon expiration or earlier termination of the Term, Member shall deliver the keys of the Unit to the lockbox, if applicable, or the access code will be deactivated. Delivery of the keys by the Member to Upside does not constitute surrender of the Unit. In the event that the Unit door lock(s) is not in normal working order at any time during the Term, and upon written notice from the Member, Upside shall, within a reasonable period of time following written notice form the Member, repair or replace such lock or locks. The Member shall pay a lost key fee of $50.00 if Member requires any replacement of any lost keys or if Member fails to return the same number of keys which were delivered to Member upon the commencement of its occupancy.
18. Furniture, Fixtures, Equipment, and Personal Property.
The Member shall have, as appurtenant to the Unit, the use of the Unit furniture, fixtures, equipment, and Upside personal property located within the Unit (“Unit FF&E”) as of the Occupancy Commencement Date and more fully shown on the Inventory and Condition Form during the Term. The Member agrees to take all actions necessary or appropriate to ensure that the Unit FF&E shall be and remain the personal property of Upside, and nothing in this Member Agreement shall be constituted as conveying to the Member any interest in the Unit FF&E other than its interest as a Member. The Unit FF&E shall be used by the Member at the Unit and in the ordinary conduct of its proper and intended use. The Member shall, at its expense, repair, maintain and replace the Unit FF&E so that it will remain in the same condition as identified on the Inventory and Condition Form as when delivered to the Member, ordinary wear and tear from proper and intended use excepted. In addition, the Member hereby assumes all other risks and liabilities, including without limitation personal injury or death and property damage, arising with respect to the Unit FF&E, howsoever arising, in connection with any event occurring prior to such Unit FF&E’s return in accordance herewith. In addition, as Upside is not the manufacturer or vendor of the Unit FF&E, it makes no other representation or warranty, express or implied, as to any matter whatsoever, including without limitation the design or condition of the Unit FF&E, its merchantability, durability, suitability or fitness for any particular purpose, the quality of the material or workmanship of the Unit FF&E, or the conformity of the Unit FF&E to the provisions or specifications of any purchase order relating thereto, and Upside hereby disclaims any and all such representations and warranties. At the expiration or earlier termination of the Term, the Member shall return the Unit FF&E to Upside in the condition required hereunder.
The Member agrees, at Upside’s demand, to temporarily vacate the Unit for a reasonable period and for reasonable purposes, including fumigation, testing/inspection, or repairs. The Member must comply with all instructions necessary to prepare the Unit for fumigation, testing/ inspection or repair. If the Member must vacate, the Member will be entitled only to an abatement of the Monthly Fees equal to the per diem Monthly Fees for the period that the Member is required to and does vacate the Unit, and only if (i) the Member must vacate for more than twelve (12) hours, (ii) the Member did not cause or exacerbate the condition requiring the Member to vacate, and (iii) Upside does not provide the Member with alternate housing.
20. Member Insurance.
a. The Member acknowledges and agrees that it shall be the Member’s obligation to insure its personal property. Upside requires that the Member procure renter’s insurance to protect against claims for bodily injury, personal injury and property damage arising out of the Member’s use, occupancy or maintenance of the Unit, including [commercial general liability insurance in an amount not less than $500,000 for liability arising out of or based upon any and all claims, accidents, injuries and damages from Member’s pet], losses from theft, fire, smoke, water damage, and vandalism.
b. Waiver of Liability. To the fullest extent permitted by applicable laws, the Member, Authorized Occupants, and Member Related Parties shall use the Unit at its own risk and Upside, its lessor and their respective property manager, agents, employees and contractors, will not be liable to any Member, Authorized Occupants, and Member Related Parties for any damage, injury, loss or claim based on or arising out of any cause whatsoever (except as otherwise provided in this Section) for any indirect, special, incidental, consequential, reliance or punitive damages, including loss of profits or business interruption, including without limitation the following: repair to any portion of the Unit or the Property; interruption in the use of the Unit or the Property or any equipment therein; any accident or damage resulting from any use or operation (by Upside, its lessor, Member, Authorized Occupants, and Member Related Parties) of elevators or heating, cooling, electrical, sewage or plumbing equipment or apparatus any fire, robbery, theft, vandalism, mysterious disappearance or any other casualty; actions of any other occupant of the Property or of any other person or entity; failure or inability to furnish any service specified in this Member Agreement; and leakage in any part of the Unit or the Property from water, rain, ice or snow that may leak into, or flow from, any part of the Unit or the Property, or from drains, pipes or plumbing fixtures in the Unit or other parts of the Property. Any property placed by the Member, Authorized Occupants, and Member Related Parties in or about the Unit or the Property shall be at the sole risk of such party, and Upside, its lessor and their respective property manager, agents, employees and contractors shall not in any manner be held responsible therefor. Notwithstanding the foregoing provisions of this Section 10.2, Upside shall not be released from liability for any physical injury to any natural person caused by the negligence or willful misconduct of Upside to the extent such injury is not covered by insurance carried by the Member, Authorized Occupant or any Member Related Party, as required by this Member Agreement; provided, however, that neither Upside nor any of the Upside Related Parties (nor any past, present or future board member, partner, trustee, director, member, officer, employee, agent, representative or advisor of any of them) shall under any circumstances be liable for any exemplary, punitive, consequential or indirect damages (or for any interruption of or loss to business) in connection with or relating to the Unit and this Member Agreement, as applicable.
21. Fire or Other Casualty.
Should a substantial portion of the Unit be substantially damaged by fire or other casualty, Upside may elect to terminate this Member Agreement or relocate Member to another Upside unit. If the Unit is damaged or destroyed by fire or casualty not caused by the Member or their guests to an extent that the enjoyment of the Unit is substantially impaired, the Member may exercise their rights under the laws of the state in which the Unit is located. When such fire or other casualty renders the Unit or any part thereof unfit for occupancy and use, a just and proportionate abatement of the Fees shall be made. If Upside believes that fire or catastrophic damage is substantial, or that performance of needed repairs poses a danger to the Member, Upside may terminate the Member’s license to occupy the Unit and this Member Agreement within a reasonable time by giving the Member written notice, or Upside may relocate Member to another Upside home. If the Member’s license to occupy the Unit and this Member Agreement is so terminated, Upside will refund prorated license fees and all deposits, less lawful deductions. The Member may elect to terminate this Member Agreement if Upside fails to give written notice within thirty (30) days after said fire or other casualty of its intention to restore the Unit, or if Upside fails to restore the Unit to a condition substantially suitable for use and occupancy within ninety (90) days after said fire or other casualty; provided, however that nothing contained in this Section 11 shall be construed to require Upside to make such restoration.
22. Eminent Domain.
If the Unit or any part thereof, shall be taken for any purpose by exercise of the power of eminent domain or condemnation or shall receive any direct or consequential damage for which Upside or the Member shall be entitled to compensation by reason of anything lawfully done in pursuance of any public authority, then this Member Agreement shall terminate at the option of Upside or the Member, and such option may be exercised in case of any such taking, notwithstanding that the entire interest of Upside may have been divested by such taking. If this Member Agreement is not so terminated, then in case of any such taking of the Unit rendering the same or any part thereof unfit for use and occupancy, a just and proportionate abatement of the Fees shall be made. Any termination of this Member Agreement pursuant to this Section 12 shall be effective as of the date on which the Member is required by the taking authority to vacate the Unit or any part thereof, provided however that Upside shall have the option to make such termination effective upon, or at any time following, the date on which said taking becomes legally effective.
The Member agrees to indemnify, protect, defend and hold harmless Upside and its officers, directors, members, partners, employees, agents, affiliates, successors, and permitted assigns from all claims, demands, costs, expenses, damages and liabilities (including reasonable costs and expenses of defending against such claims, demands, costs, expenses, damages and liabilities) resulting from (a) damages to property or from injury to or death of persons: (i) occurring in or on the Unit, from any cause whatsoever during the Term (provided such damage is not caused by Upside or Upside’s officers, agents employees, contractors, subcontractors, or invitees); or (ii) occurring in or about any other portion of the Unit during the Term, to the extent resulting wholly or in part from the acts or omissions of the Member, Authorized Occupants, or Member Related Parties; (b) violation by the Member of any contract or agreement to which the Member is a party in each case affecting any part of the Unit or the occupancy or use thereof by the Member; or (c) breach or violation of or failure to observe or perform any condition, provision, or agreement of this Member Agreement on the Member’s part to be complied with, observed or performed hereunder. Notwithstanding the foregoing, the provisions of this Section 13 shall not apply with respect only to any physical injury, to any natural person caused by the negligence or willful misconduct of Upside. Upside shall not be liable for any obligation arising out of a settlement made without its prior written consent.
24. Member Default.
a. The right for the Member to remain in possession of the Unit is conditioned on the Member’s timely and full performance of each of the obligations under this Member Agreement and applicable law.
b. The occurrence of any of the following shall constitute a material breach of this Member
c. Agreement and a “Default” by the Member:
i. Failure to pay the Fees or any other amount charged, including the Late Payment Fee, within five (5) business days after written notice from Upside to the Member of such late payment (a “monetary default”); or
ii. The Member abandons or vacates the Unit; or
iii. The Member shall neglect or fail to perform or observe any other covenant herein contained on the Member’s part to be performed or observed and the Member shall fail to remedy the same within seven (7) days after notice to the Member specifying such neglect or failure, or if such failure is of such a nature that the Member cannot reasonably remedy the same within such seven (7) day period, the Member shall fail to commence promptly (and in any event within such seven (7) day period) to remedy the same and to prosecute such remedy to completion with diligence and continuity; or
iv: The Member’s failure to perform timely and subject to any cure periods any other material provision of this Member Agreement; or
v. The Member supplies any false or misleading information to Upside; or
vi. If the Member fails to completely vacate the Unit when required and in the condition required; the Member will be liable for all resulting losses suffered by Upside including but not limited to, future resident losses, lost license fees, legal costs and other expenses; or
vii. Any action or inaction by the Member or anyone claiming by and through under Member that would entitle Upside to take such actions as set forth in Section 15.6 of the Terms of Service (as hereinafter defined); or
viii. Member shall make a filing of a voluntary petition by the Member, or the entry of an order for relief against the Member, under Chapter 7 or 13 of U.S.C §101, et seq.
ix. Then, in any such case Upside may terminate this Member Agreement by delivering any written notice required by applicable law, if any, and Upside may recover from the Member all damages incurred as a result of the Default, including the cost of recovering possession of the Unit, Fees due up through the date the Member vacates the Unit, if any, advertising expenses, other costs incurred because of the Member’s breach of this Member Agreement, any other amount necessary to compensate Upside for the Member’s breach of this Member Agreement, and exercise any other rights or remedies available under this Member Agreement, at law or in equity. In any legal action brought by either party to enforce this Member Agreement, the prevailing party will be entitled to all costs incurred in connection with that action, including reasonable attorney fees, expert witness and consultant fees, and costs and expenses.
25. Termination, Booking Modifications and Cancellations.
a. Provided that there is no Default as of the date that the Member delivers the Early Termination Notice (as hereinafter defined), the Member shall have a one-time option to terminate this Member Agreement (“Termination Option”) provided that (i) the Member gives Upside a sixty (60) day written notice of termination and intent to vacate (“Early Termination Notice”) no earlier than the date that is thirty (30) days following the check-in date; and (ii) both as of the date of the Member’s exercise of such option and as of the Early Termination Date, this Member Agreement is in full force and effect and there is no Default of the Member in existence and continuing; and (iii) Member acknowledges and agrees to be liable for an amount that equals two (2) month’s Monthly Occupancy Fees to Upside for liquidated damages or early termination fee. You understand and accept this liquidated damage or early termination fee specified herein if you breach the Member Agreement and we have obtained a writ of possession, or if you have surrendered possession of the Unit before the Member Agreement term expires, or if you have abandoned the Unit, or if you elect to terminate the Member Agreement before the Member Agreement term expires. Upside is entitled to rent and all other charges (including property damages to the Unit beyond normal wear and tear) accrued through the end of the month in which we retake possession of the Unit, in addition to the liquidated damages or early termination fee amount set forth in this paragraph. The exercise of any Termination Option and payment of the Termination Payment shall not relieve Member of liability for and the obligation to pay the taxes, impositions, rental charges, fees and penalties that result from Member’s exercise of the Termination Option.
b. Members are responsible for any modifications to a booking that they make via the Upside website or team member including, without limitation, modifications to its check-in date (“Booking Modifications”), and agree to pay any additional fees and/or taxes associated with such Booking Modifications. Upside reserves the right to charge the Member a modification fee for any modifications to the check-in date. Members may cancel a confirmed booking at any time upon written notice prior to seven (7) or more days before check-in and, subject to the following terms and as may be amended per particular Booking in this Member Agreement, Upside will refund the amount of the Initial Amounts Due to the Member, less any fees, taxes, penalties or other amounts due on account of such Booking Modification. If the Member cancels their Booking less than seven (7) days of the check-in date, the Member shall pay to Upside a cancellation fee equal to the per diem Monthly Occupancy Fee payable for seven (7) days. In certain circumstances, Upside may decide, in its sole discretion, that it is necessary to cancel a pending or confirmed booking and initiate corresponding refunds and payouts. This may be (i) where Upside believes in good faith, while taking the legitimate interests of both parties into account, this is necessary to avoid significant harm to Upside, other members, third parties or property, or (ii) for any of the reasons set out in this Member Agreement. No Booking Modifications shall be made that will result in a less than thirty (30) day rental term. No Booking Modification shall be made after the check-in date and any rights of the Member after the check-in date to modify or terminate its Member Agreement term shall be limited to the rights under Section 25 of this Member Agreement.
The Member shall completely vacate the Unit by 10:00 a.m. on the Occupancy Expiration Date (subject to any extensions) or the date of any earlier termination.
a. If Upside knows of the Member’s intent to vacate the Unit, Upside will give the Member written notice of their right to a pre-check out inspection as required by any applicable law. This inspection allows the Member to identify and correct any defects and deficiencies in the Unit to avoid damage charges to the credit card provided. If the Member notifies Upside that the Member wants the inspection, Upside will inspect the Unit (no earlier than two weeks before the Occupancy Expiration Date) and provide the Member with an itemized statement specifying repairs or cleaning to be made at the Member’s expense. The Member has the right to be present during such inspection but Upside is not required to reschedule the inspection if the Member does not attend at the specified time.
b. Upon any expiration or termination of the Term, the Member will ensure (i) no future reservation exists as of the termination or expiration date; (ii) surrender the Unit vacant and free of the Member’s personal property, in the same condition as stated on the Inventory and Condition Form, normal wear and tear, loss by casualty or condemnation excepted; (iii) clean the Unit to the level of cleanliness as received; (iv) give Upside all keys and other opening devices to the Unit, and to any common areas and amenities of the Property, if any; (v) vacate all parking and storage spaces, if any; (vi) use commercially reasonable efforts to effect a timely and orderly turnover of the Unit back to Upside; and (vii) provide Upside with the Member’s forwarding address. The Unit shall be cleaned by the Member in a manner reasonably acceptable to Upside by the Occupancy Expiration Date. At termination of the Term, Upside reserves the right to remove any improvements or alterations that the Member installed, whether or not Upside authorized the improvements or alterations, at the Member’s expense.
c. Overstay. Subject to any extensions, if the Member shall continue to use, store personal property in, or retains possession of the Unit or any part thereof from and after the Occupancy Expiration Date or earlier termination of the Term (“Overstay”), such Overstay shall be governed by the Terms of Service incorporated herein by reference.
Subject to availability and rebooking on the Upside website or with the Upside team, the Member shall have the option to extend the term of this Member Agreement on the same terms and conditions contained in this Member Agreement except that the Monthly Charges paid by the Member to Upside shall be the then current rate at the time of rebooking.
29. Assignment, Subletting, and Transfer.
The Member shall have no right to assign, sublet, license, or otherwise transfer or delegate this Member Agreement. Any assignment, subletting, licensing or transfer (whether by the Member’s voluntary act, operation of law, or otherwise) by the Member will be void, and Upside may elect to treat it as a non-curable breach of this Member Agreement. Upside may at any time assign, encumber, delegate, or transfer, in whole or in part, without restriction, and the Member must look solely to our transferee for performance of our obligations relating to the period after the transfer. The Member’s obligations under this Member Agreement will not otherwise be affected by any transfer.
Any notice, demand, request, or other communication under this Member Agreement shall be in writing and shall be addressed to the parties at the addresses set forth below (or at such other address for a party as shall be specified in a notice given in accordance with this Section 19). Each party may amend its address for notices from time to time upon written notice to the other party in accordance herewith. Communications may be delivered and shall be deemed to have been given by the delivering party and received by the receiving party: (i) when delivered by hand; (ii) one-day after deposit with a nationally recognized overnight courier or delivery service if sent priority overnight delivery; (iii) on the date sent by electronic mail (with confirmation of transmission) if sent during normal business hours of the recipient and if also transmitted by one of the other means permitted hereunder; or (iv) on the third day after the date mailed by certified or registered mail (in each case, return receipt requested and postage pre-paid). The rejection or other refusal to accept or the inability to deliver because of a changed address of which no notice was given shall be deemed to be receipt of the communication sent.
If to Upside:
6365 NW 6TH Way, STE 200
Fort Lauderdale FL 33309-6162
If to the Member: To the postal and/or email address that member submitted to Upside.
Effective Date of Terms of Service
March 1st, 2020