Last updated: 4th August 2021
Welcome to Up.
These Up Service Terms (these “Terms”) explain the relationship between Replyup.com Ltd. (“Up”, “we” or “us”) and you when you (i) access and use replyup.com and its related domains (together, the “Site”) and/or (ii) download, install, use and in some cases purchase Up’s proprietary email software applications (including all related documentation, updates and upgrades) and any other services offered through the Site (the “Up Services”).
These Terms govern visitors’ access to and use of the public areas of the Site, as well as access to and use of the Up Services. Unless otherwise indicated, “Up Services” as used throughout these Terms includes the public areas and the Up Services. For the purposes of these Terms, “you” or “your” refers to you as a visitor to or registered user of the Up Services.
Description of Service
Up is a software product that provides a SaaS (Software as a Service) to improve email marketing services. You understand and agree that Up is provided on an AS IS and AS AVAILABLE basis. Up disclaims all responsibility and liability for the availability, timeliness, security or reliability of the Up Services. Up also reserves the right to modify, suspend or discontinue the Up Service with or without notice at any time and without any liability to you.
Use of Up Services
You are responsible for providing the equipment and services that you need to access, download, install and use the Up Services. Up does not guarantee that the Up Services are accessible on any particular equipment or device or with any particular software or service plan.
You are responsible for all activities that occur through your Account, whether or not authorized by you. Please do not share your Account with any other person.
You agree that you will use the Service in compliance with all applicable local, state, national, and international laws, rules and regulations, including any laws regarding the transmission of technical data exported from your country of residence. You shall not, shall not agree to, and shall not authorize or encourage any third party to: (i) use the Service to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, contains viruses, or is otherwise objectionable as reasonably determined by Up; (ii) upload, transmit or otherwise distribute content that infringes upon another party’s intellectual property rights or other proprietary, contractual or fiduciary rights or obligations; (iii) prevent others from using the Service; or (iv) use the Service for any fraudulent or inappropriate purpose. Violation of any of the foregoing may result in immediate termination of this Agreement, and may subject you to state and federal penalties and other legal consequences. Up reserves the right, but shall have no obligation, to investigate your use of the Service in order to determine whether a violation of the Agreement has occurred or to comply with any applicable law, regulation, legal process or governmental request.
Content of the Service
The Up Services allow you to upload, transmit and use information and other content to and through the Up Services (collectively, “Your Content”). You are solely responsible for the accuracy, quality, legality and means by which you acquired Your Content. You understand that Up will use Your Content to provide the Up Services to you. You have or will obtain all rights necessary to provide Your Content to Up and you hereby grant Up a worldwide license to use, reproduce, transmit, display and adapt your Content as necessary for Up to provide the Up Services to you in accordance with these Terms.
- In order to use these services, you must:
- be a business or a consumer able to enter into valid contracts;
- complete the registration process;
- agree to the Terms; and
- provide true, complete, and up to date contact information.
- By using the Service, you represent and warrant that you meet all the requirements listed above, and that you won’t use the Service in a way that violates any laws or regulations. Up may refuse service and change eligibility requirements at any time.
- Are you a business customer or a consumer? In some areas you will have different rights under these terms depending on whether you are a business or consumer. You are a consumer if:
- You are an individual.
- You are buying a service from us wholly or mainly for your personal use (not for use in connection with your trade, business, craft or profession).
- In order to use these services, you must:
- Accepting these terms
- These Terms apply from when you sign up for the Service. Clicking the ‘Sign Up’ button means that you’ve officially “signed” the Terms and a binding contract will come into existence on the basis of the Terms (“Agreement”). If you sign up for the Service on behalf of a company or other entity, you represent and warrant that you have the authority to accept these Terms on their behalf.
- Compliance with these terms
- Your use of the Service is conditional upon your compliance with this Agreement. Without affecting any of our other rights, if you do not comply with any of the terms of this Agreement, we may terminate or suspend your use of the Service.
- Closing your account
- You or we may terminate this Agreement at any time and for any reason by giving notice in writing (including email) to the other party. We won’t refund or reimburse you any Subscription Fees if there’s cause, like a violation of these Terms. Once terminated, we may permanently delete your account and all the data associated with it, including your Content from our Website.
- Deletion of contacts
- As part of the Service, we offer you the ability to delete Contacts from your account. If you have previously sent Content to a Contact, deletion of that Contact will only be made after a period specified by us (not to exceed 14 days) from the date on which you last sent Content to that Contact.
- Delivery of content
- You acknowledge that due to third party filtering services, problems routing Content across the internet, and other factors, we are unable to guarantee delivery of Content to Contacts using the Service. We will use commercially reasonable efforts to deliver Content to Contacts.
- You acknowledge and understand that the Service includes the transmission of unencrypted email in plain text over the public internet. You are responsible for encrypting any confidential or sensitive data you use in conjunction with the Services. Email sent using the Services may be unsecured, may be intercepted by other users of the public internet, and may be stored and disclosed by third parties (such as a recipient’s email service provider).
- Account and password
- You’re responsible for keeping your account name and password confidential. You’re also responsible for any use of your account, whether or not you authorised the use. You must immediately notify us of any unauthorised use of your accounts. We’re not responsible for any losses due to stolen or hacked passwords. We don’t have access to your current password, and for security reasons, we may only reset your password.
Paid Up Service
Up offers enhanced Up Services for a fee (“Paid Up Service”). The Paid Up Service provides you with unlimited email marketing features for a monthly fee at the then-current rates as described at www.replyup.com/pricing (“Fee Structure”). Up reserves the right to change the Fee Structure upon thirty (30) days advanced notice to paying customers.
Up does not store, process or transmit any of your credit card data but relies entirely on Stripe, Inc. to handle these functions. Payments due for the Paid Up Services are subject to the terms of the online order process at https://stripe.com/terms/US. If you do not agree to Stripe’s terms, then please do not sign up for the Paid Up Service.
Your Paid Up Service will not be activated until your first payment is received. Payments are due in accordance with the Fee Structure every thirty (30) days in advance or every one (1) year in advance, depending on the plan purchased. Both monthly and annual fees are automatically charged to the credit card that you provided when you registered for the Paid Up Service. To cancel the Paid Up Service, please request to email@example.com. We begin to process cancellation requests immediately, but your credit card provider may require several days to process your cancellation request. We are not responsible for delays caused by your credit card company.
If payment in full of any amount owed to Up under these Terms is not received by Up within thirty (30) days after such payment has become due, such amounts will thereafter bear interest at the rate 0.05% per day or the maximum rate permitted by applicable law, whichever is less. If any payment due to Up is collected at law or through an attorney at law or under advice therefrom or through a collection agency, you agree to pay all costs of collection, including, without limitation, all court costs and reasonable attorneys’ fees.
We do not offer any refunds for Paid Up Services under any circumstances. You will have access to these services for the either the remaining monthly or annual plan that you have selected.
Intellectual Property Rights
Up’s Intellectual Property Rights. You acknowledge that Up owns all right, title and interest in and to the Service, including without limitation all intellectual property rights (the “Up Rights”), and such Up Rights are protected by international intellectual property laws. Accordingly, you agree that you will not copy, reproduce, alter, modify, or create derivative works from the Service. You also agree that you will not use any robot, spider, other automated device, or manual process to monitor or copy any content from the Service. The Up Rights include rights to (i) the Service developed and provided by Up; and (ii) all software associated with the Service.
Your Intellectual Property Rights. Up does not claim any ownership in any of the content that you upload, transmit or store in your Up account. We will not use any of your content for any purpose except to provide you with the Service.
Rules and abuse
- You promise to follow these rules:
- You won’t use the Services in any way that may cause us legal liability or disrupt others’ use of the Service;
- You won’t use the Service in a way that may damage to our business or reputation;
- You won’t send spam. By “spam”, we mean the definition provided by Spamhaus;
- You won’t use purchased, rented, or third-party lists of email addresses;
- You won’t violate our Acceptable Use Policy, which is part of this Agreement;
- If you violate any of these rules, then we may suspend or terminate your account;
- You will comply with all applicable data protection legislation, including the EU General Data Protection Regulation;
- You will not use the Services to send or receive any information that falls within the definition of “special categories of data” under EU General Data Protection Regulation 2016/679 (“GDPR“);
- You shall:
- provide us with all necessary cooperation in relation to the Service and all necessary access to such information as may be required by us in order to provide you with the Service;
- comply with all applicable laws and regulations with respect to your Content and activities under these Terms;
- obtain and shall maintain all necessary licences, consents, and permissions necessary for us, our contractors and agents to perform our obligations under these Terms, including without limitation the Service;
- As part of the Service, we will action on your behalf any “unsubscribe” requests received from recipients of Content you send using the Service.
If you think anyone is violating any of these Terms, please notify us immediately at firstname.lastname@example.org. If you received spam you think came from an Up user, we want to hear about it, please contact us at email@example.com. If you think anyone has posted material that violates any copyrights, then you may notify us by sending an email to firstname.lastname@example.org.
Representations and Warranties
You represent and warrant that (a) all of the information provided by you to Up to participate in the Services is correct and current; and (b) you have all necessary right, power and authority to enter into this Agreement and to perform the acts required of you hereunder.
After a period of inactivity, whereby a user fails to login to an account for a period of six months, Up reserves the right to disable or terminate the account. If an account has been deactivated for inactivity, the username associated with that account may be given to another user without notice to you or such other party.
You agree to indemnify and defend Up and its affiliates, directors, officers, employees and agents from and against all Claims brought against Up by any third party arising from your use of the Up Services or any violation of these Terms, the rights of a third party or applicable law. Your indemnification obligations set forth in this Section 8 apply to any applicable actions taken under your Account. Up reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification hereunder. In any event, no settlement that affects the rights or obligations of Up may be made without Up’s prior written approval.
Our responsibility for loss or damage if you are a business
This sets out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you:
- arising under or in connection with these Terms;
- in respect of any use made by you of the Service; and
- in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms.
Except as expressly and specifically provided in these Terms:
- you assume sole responsibility for results obtained from your use of the Service, and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to us by you in connection with the Service, or any actions taken by us at your direction;
- all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Terms; and
- the Service is provided to you on an “as is” basis. In particular, no warranty or representation is made that the Service will be available uninterrupted or error-free.
Nothing in these Terms excludes our liability:
- for death or personal injury caused by our negligence; or
- for fraud or fraudulent misrepresentation.
Subject to the above:
- We shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any:
- loss of profits,
- loss of business,
- depletion of goodwill and/or similar losses,
- loss or corruption of data or information,
- pure economic loss, or
- special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Terms; and
- our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms shall be limited to the total Subscription Fees paid by you during the 12 months immediately preceding the date on which the claim arose or £100, whichever is the greater.
Our responsibility for loss or damage if you are a consumer
- We are responsible to you for foreseeable loss and damage caused by us. If we fail to comply with these terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking this contract or our failing to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both we and you knew it might happen, for example, if you discussed it with us during the sales process.
- We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors; for fraud or fraudulent misrepresentation; for breach of your legal consumer rights in relation to the Service.
- We are not liable for business losses. If you are a consumer we only supply our service for to you for domestic and private use. If you use our service for any commercial, business or resale purpose our liability to you will be limited as set out in the previous clause.
We won’t be held liable for any delays or failure in performance of any part of the Service, from any cause beyond our control. This includes, but is not limited to, changes to law or regulations, embargoes, fires, earthquakes, floods, strikes, power blackouts, unusually severe weather conditions, and acts of hackers or third party internet service providers.
Modifications to Terms
We may modify these Terms at any time. Modifications become effective immediately upon your first access to or use of the Up Services after the “Last Revised” date at the top of this page. Your continued access or use of the Up Services after the modifications become effective is deemed your conclusive acceptance of the modified Terms.
These Terms will automatically terminate when you fail to comply with any term or condition of these Terms. Upon termination, you will cease all use of the Up Services and will destroy any copy (full or partial) of any and all parts of the Up Services in your possession or control. Termination will not limit any of Up’s other rights or remedies at law or in equity.
You are solely responsible for any and all duties, taxes, levies or fees (including any sales, use or withholding taxes) imposed on or in connection with these Terms or the Up Services by any authority.
You agree that a breach or a threatened breach of these Terms will cause injury to Up for which money damages will not provide an adequate remedy and Up will be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
Choice of Law
If you have any questions about these Terms, please contact us at email@example.com.