Terms and Conditions

Updated: August 13, 2024, 4:54pm CDT

Last Updated: August 13, 2024

By accessing or using our website, you agree to be bound by the terms and conditions listed herein (this “Agreement”) and our Privacy Policy (the “Privacy Policy”). The terms “we,” “us,” or “our” mean Upgraded Points, LLC, a Texas limited liability company, and its domestic legal subsidiaries and affiliates. The term “Services” collectively means various websites, widgets, email notifications and other mediums, or portions of such mediums, through which you have accessed this Agreement. This Agreement contains disclaimers of warranties and liability.

PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR ACCESS AND USE OF OUR WEBSITE AND THE SERVICES. THIS AGREEMENT LIMITS OUR LIABILITY TO YOU, REQUIRES YOU TO ARBITRATE ANY DISPUTES YOU HAVE WITH US AND HAS YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN A CLASS ACTION FORMAT.

Your Compliance with this Agreement

You acknowledge that this Agreement is supported by reasonable and valuable consideration, the receipt and adequacy of which is hereby acknowledged. Without limiting the foregoing, you acknowledge that such consideration includes, without limitation, your ability to visit, use and/or submit information to our Services.

You represent that you have the capacity to be bound by this Agreement, or if you are acting on behalf of a company or other entity, you have the authority to bind such company or entity. In order to determine your compliance with this Agreement, we may monitor, either directly or indirectly through our third party vendors, your access and use of our Services in accordance with our Privacy Policy, which is incorporated herein by reference.

Our Services are Not Intended for Minors

Our Services are intended to be accessed and used only by adults and are not directed to minors. As stated in our Privacy Policy, we do not knowingly collect personally identifiable information from children. You should not provide us with any information regarding any individual under the age of 18. We will not be liable for any damages that may result from a misrepresentation of age by a user of our website.

Your Access and Use of Our Services

Your right to access and use our Services is personal to you and is not transferable by you to any other person or entity. You are only entitled to access and use our Services for lawful purposes and pursuant to the terms and conditions of this Agreement and the Privacy Policy.

Your access and use of our Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of our Services or other actions that we, in our sole discretion, may elect to take. We reserve the right to suspend or discontinue the availability of our Services and/or any portion or feature of our Services or delete any information on our website at any time in our sole discretion and without prior notice.

Any action by you that, in our sole discretion: (i) violates the terms and conditions of this Agreement and/or the Privacy Policy; (ii) restricts, inhibits or prevents any access, use or enjoyment of our Services; (iii) through the use of our Services, defames, abuses, harasses, offends or threatens; or (iv) violates any international, federal, provincial or state regulations, rules, laws, or local ordinances, shall not be permitted, and may result in your loss of the right to access and use our Services. You shall not modify, scrape, embed, or frame our Services without our prior written permission.

Your Access and Use of our Services

Subject to the terms and conditions of this Agreement and the Privacy Policy, we may offer you various Services. Below are terms and conditions governing these Services.

You Must Maintain the Integrity of Your Information. To use certain Services, you may be required to provide us with information about you, which may be of a confidential nature and may include personal identifying information (“Your Information”). If you provide Your Information to us then you agree to provide true, current, complete and accurate information, and not to misrepresent your identity. You also agree to keep Your Information current and to update Your Information if any of Your Information changes. Our collection, use and disclosure of Your Information is governed by this Agreement and our Privacy Policy.

You Are Responsible for Your Financial Decisions. We and our affiliates, through the Services, may provide a venue through which you can obtain information and you can find third-party service providers, such as financial institutions, credit card providers, mortgage brokers, insurance brokers, insurance agents, discount program representatives, insurance professionals, airlines, hotels, cruise or other travel provider (collectively “Travel Service Providers”). We do not endorse or recommend the products or services of any Travel Service Provider and are not an agent or advisor to you or any Travel Service Provider. We do not validate or investigate the licensing, certification or other requirements and qualifications of Travel Service Providers. It is your responsibility to investigate Travel Service Providers. You acknowledge and agree that Travel Service Providers are solely responsible for any services that they may provide to you and that we are not liable for any losses, costs, damages or claims in connection with, arising from, or related to, your use of a Travel Service Provider’s products or services. We urge you to obtain the advice of financial advisors, insurance agents, brokers or other qualified professionals who are fully aware of your individual circumstances before you make any financial or insurance decisions. You acknowledge and agree that you rely on your own judgment and that of such advisors in selecting any products or services offered by Travel Service Providers.

You Acknowledge and Agree that We are Not a Travel Service Provider. We are not a financial institution, insurance provider or a Travel Service Provider. Instead, we, through our Services, may help to connect you with Travel Service Providers that might meet your needs based on information provided by you. We do not, and will not, make any coverage or credit decision with any Travel Service Provider referred to you. We do not issue mortgages, credit cards, insurance coverage or any other financial products.

No Guarantee of Quotes, Fees, Terms, Rates, Coverage or Services. We do not make any warranties or representations regarding the quotes, fees, terms, rates, coverage or services offered or made available by Travel Service Providers. We do not guarantee that quotes, fees, terms, rates, coverage or services offered by Travel Service Providers are the best available.

You Do Not Pay Fees to Us. Unless you are a Travel Service Provider or order a specific service through our Services, we do not charge you a fee to use our Services. However, Travel Service Providers may pay us fees for services and to be matched with users of our Services as further set forth in our “Advertising Policy, How We Make Money & Additional Disclosures” (https://upgradedpoints.com/advertising-policy/), where are incorporated herein by reference.

We are not involved with and are not responsible for any fee arrangement that you may enter into with any Travel Service Provider. You acknowledge and agree to this compensation arrangement. You hereby release us of any and all losses, costs, damages or claims in connection with, arising from or related to your use of a Travel Service Provider’s products or services, including any fees charged by a Travel Service Provider.

You are solely responsible for complying with applicable laws and regulations in connection with your use of any services offered by us or a Travel Service Provider.

Fees and Payments

As stated above, access and use of our Services is free. However, at any time, we may choose to charge fees for various premium features and services, and we will notify you of those charges at the time that we offer features and services for a fee. We may also at our sole discretion, and by notifying you on our Services, change this policy and begin charging for access to our Services and other features and services, and we may, at our sole discretion, add, remove or change the features and services we offer or the fees (including the amount and type of fees) we charge at any time. If we introduce a new service or charge a new fee, we will establish and notify you of the fees for that service at the launch of the service or start of charging a new fee. If we notify you of new fees or changes to fees for an existing service, then you agree to pay all fees and charges specified and all applicable taxes for your continued use of the applicable service.

Our Intellectual Property Rights

Our names, graphics, logos, page headers, button icons, scripts, and service names are our trademarks or trade dress in the United States and/or other countries (collectively, the “Proprietary Marks”). You may not use the Proprietary Marks without our prior written permission. We make no proprietary claim to any third-party names, trademarks or service marks appearing on our Services. Any third-party names, trademarks, and service marks are property of their respective owners.

The information, advice, data, software and content viewable on, contained in, or downloadable from our Services (collectively, the “Content”), including, without limitation, all text, graphics, charts, pictures, photographs, images, videos, line art, icons and renditions, are copyrighted by, or otherwise licensed to, us or our Content suppliers. We also own a copyright of a collective work in the selection, coordination, arrangement, presentation, display and enhancement of the Content (the “Collective Work”). All software used on or within our Services (the “Software”) is our property or the property of our software vendors and is protected by United States and international copyright laws. Viewing, reading, printing, downloading or otherwise using the Content and/or the Collective Work does not entitle you to any ownership or intellectual property rights to the Content, the Collective Work, or the Software.

You are solely responsible for any damages resulting from your infringement of our or any third-party’s intellectual property rights regarding the Trademarks, the Content, the Collective Work, the Software and/or any other harm incurred by us or our affiliates as a, direct or indirect, result of your copying, distributing, redistributing, transmitting, publishing or using the same for purposes that are contrary to the terms and conditions of this Agreement.

Your Use of the Content

We grant you a limited license to access, print, download or otherwise make personal use of the Content and the Collective Work in the form of: (i) one machine-readable copy; (ii) one backup copy; and (iii) one print copy, for your non-commercial use; provided, however, that you shall not delete any proprietary notices or materials with regard to the foregoing manifestations of the Content and the Collective Work. You may not modify the Content or the Collective Work or utilize them for any commercial purpose or any other public display, performance, sale, or rental, decompile, reverse engineer, or disassemble the Content and the Collective Work, or transfer the Content or the Collective Work to another person or entity.

Except as otherwise permitted under the copyright laws of the United States, no other copying, distribution, redistribution, transmission, publication or use, other than the non-commercial use of the Content and the Collective Work as permitted by this Agreement, is permitted by you without our prior written permission.

You may not use any meta tags or any other “hidden text” utilizing our name or trademarks without our prior written permission.

Access and Interference

You agree that you will not use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor our Services or any portion of our Services or for any other purpose, without our prior written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for your personal information) from our Services without our prior written permission and the appropriate third party, as applicable; (iii) interfere or attempt to interfere with the proper working of our Services or any activities conducted on our Services; or (iv) bypass any robot exclusion headers or other measures we may use to prevent or restrict access to our Services. Notwithstanding the foregoing, we grant the operators of public search engines permission to use spiders to copy materials from our Services for the sole purpose and solely to the extent necessary for creating publicly available search indices of the materials on our Services, but not caches or archives of such materials. We reserve the right to revoke these exceptions either generally or in specific cases. Except as expressly permitted in this Agreement, you shall not collect or harvest any personally identifiable information, including account names, from our Services.

Electronic Communications

When you visit our Services or send email to us, you are communicating with us electronically. You consent to receive communications from us electronically. Although we may choose to communicate with you by regular mail, we may also choose to communicate with you by email or by posting notices on our Services. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

Your Responsibility for Equipment and Related Costs

You are responsible for obtaining and maintaining all telephone, computer hardware, Internet access services and other equipment or services needed to access and use our Services, and all costs and fees associated with Internet access or long distance charges incurred with regard to your access and use of our Services.

Third Party Links, Access and Additional Disclosures

As part of our Services we provide information on credit cards, credit card rewards, reward programs, travel information, and ancillary information concerning travel and credit cards. There may be provided on our Services links or access to other websites or mediums belonging to our advertisers, business partners, affiliates, Travel Service Providers and other third parties. Such links and access do not constitute our endorsement of those third parties, nor the products or services of those third parties. We are not responsible for the activities or policies of those third parties. We do not guarantee that the terms or rates offered by any particular advertiser, business partner, affiliate, Travel Service Provider or other third party on or through our Services are the best terms or lowest rates available in the market. Any appearances of Travel Service Provider’s name or logo on our Services are for informational and/or attribution purposes only, and do not imply an affiliation or approval of us or our Services by that Travel Service Provider.

We may receive compensation when you click on links and are approved for credit card products from our advertising partners that are featured on UpgradedPoints.com.

For more information regarding our advertising policies and additional disclosures regarding our content and relationship with Travel Service Providers, please see our “Advertising Policy, How We Make Money & Additional Disclosures,” which is incorporated herein by reference.

Mobile Devices

If we provide aspects of our Services via an application for your mobile or other device, please be aware that your carrier’s normal rates and fees may apply and that the terms of this Agreement and other agreements within the application apply to your use of such application.

Copyright Infringement

It is our policy to comply with the Digital Millennium Copyright Act, title 17, United States Code, Section 512, including, without limitation, responding to notices of alleged copyright infringement, and other applicable intellectual property laws.

Notifications (each a “Notification”) of claimed copyright infringement should be sent by either express mail or U.S. mail to our designated agent. Our designated agent contact information is set forth below:

Address of designated agent to which notification should be sent:

Upgraded Points, LLC
1155 Barton Springs Road
Austin, Texas 78704

Email address of designated agent: mail@upgradedpoints.com

Pursuant to Title 17, United States Code, Section 512(c)(3), to be effective, the Notification must include the following:

A physical or electronic signature of a person authorized to act on behalf of the owner (“Complaining Party”) of an exclusive right that is allegedly infringed;

Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single Notification, a representative list of such works at that site;

Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;

Information reasonably sufficient to permit us to contact the Complaining Party, such as an address, telephone number, and if available, an electronic mail address at which the Complaining Party may be contacted;

A statement that the Complaining Party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

A statement that the information in the Notification is accurate, and under penalty of perjury, that the Complaining Party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Upon receipt of the Notification containing the information as outlined in 1 through 6 above, and pursuant to Title 17, United States Code, Section 512:

We will remove or disable access to the material that is alleged to be infringing;

We will forward the Notification to the alleged infringer (“Subscriber”); and

We will take reasonable steps to promptly notify the Subscriber that we have removed or disabled access to the material.

Counter Notification

Pursuant to Title 17, United States Code, Section 512(g)(3), a Subscriber may counter a Notification by providing a written communication (“Counter Notification”) to our designated agent that includes substantially the following:

A physical or electronic signature of the Subscriber;
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
A statement under penalty of perjury that the Subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
The Subscriber’s name, address, and telephone number, and a statement that the Subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the Subscriber’s address is outside of the United States, for any judicial district in which we may be found, and that the Subscriber will accept service of process from the person who provided the Counter Notification or an agent of such person.

Upon receipt of a Counter Notification containing the information as outlined in 1 through 4 above, and pursuant to Title 17, United States Code, Section 512:

We will promptly provide the Complaining Party with a copy of the Counter Notification;

We will inform the Complaining Party that we will replace the removed material or cease disabling access to the removed material within ten (10) business days; and

We will replace the removed material or cease disabling access to the removed material not less than ten (10), nor more than fourteen (14) business days following receipt of the Counter Notification, provided our designated agent has not received notice from the Complaining Party that an action has been filed seeking a court order to restrain the Subscriber from engaging in infringing activity relating to the removed material on our network or system.

We Make No Representations or Warranties Regarding the Content

The Content and all services and products associated with our Services are provided to you on an “as-is” and “as available” basis. We make no representations or warranties of any kind, express or implied, as to the operation of our Services or the information, content, materials, products or services included on or associated with our Services. You expressly agree that your use of our Services and all products and services included on or associated with our Services is at your sole risk.

We do not make, and expressly disclaim, any representations, warranties or guarantees, express or implied, regarding the accuracy, correctness, or completeness of the Content or the services and products associated with our Services, or the safety, reliability, title, timeliness, completeness, merchantability, conformity or fitness for a particular purpose of the Content or the services and products associated with our Services. It is your sole responsibility to independently evaluate the accuracy, correctness or completeness of the Content and the services and products associated with our Services. We make no representation, warranty or guarantee that the Content that may be available for downloading from our Services is free of infection from any viruses, worms, Trojan horses, trap doors, back doors, easter eggs, time bombs, cancelbots or other code or computer programming routines that contain contaminating or destructive properties or that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. We do not make any representations, warranties or guarantees, express or implied, regarding any quotes or offers provided on or through our Services.

WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE AND AGREE THAT WE ARE NOT A FINANCIAL INSTITUTION, INSURANCE PROVIDER, CREDIT CARD PROVIDER OR OTHER TRAVEL SERVICE PROVIDER. YOU ACKNOWLEDGE AND AGREE THAT WE ARE SOLELY AN INTERMEDIARY BETWEEN YOU AND SUCH TRAVEL SERVICE PROVIDERS AND, THEREFORE, WE EXPRESSLY DISCLAIM ANY AND ALL LIABILITY FOR ANY CONTENT, PRODUCTS OR SERVICES PROVIDED BY SUCH TRAVEL SERVICE PROVIDERS.

The Content is intended only as educational information and to assist you with financial decisions and is broad in scope and does not consider your personal financial situation. Your personal financial situation is unique and the information and advice may not be appropriate for your situation. Accordingly, before making any final decisions or implementing any financial strategy, we recommend that you obtain additional information and advice of your accountant and other financial advisors who are fully aware of your individual circumstances.

Our Services are controlled and offered by us from our facilities in the United States of America. We make no representations that our Services are appropriate or available for use in other jurisdictions. If you access or use our Services from other jurisdictions, then you do so by your own volition and are solely responsible for compliance with local law.

Limitations on Our Liability

We shall in no event be responsible to, or liable to, you, or any third party, whether in contract, warranty, tort (including negligence) or otherwise, for any damages, including, but not limited to, special, incidental, indirect or consequential damages that include, but are not limited to, damages for any loss of profit, revenue or business, as a direct or indirect result of: (i) your breach or violation of the terms and conditions of this Agreement; (ii) your access and use of our Services; (iii) your delay in accessing or inability to access or use our services for any reason; (iv) your downloading of any of the Content or the Collective Work for your use; (v) your reliance upon or use of the Content or the Collective Work, OR (vi) any information, software, products or services obtained through our services, or otherwise arising out of the use of our Services, whether resulting in whole or in part, from breach of contract, tortious behavior, negligence, strict liability or otherwise, even if we and/or our suppliers had been advices of the possibility of damages. Our liability and the liability of our affiliates, directors, officers, employees, independent contractors, shareholders, representatives, and agents arising out of this Agreement shall not exceed $100.

YOU (AND WE) AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO OUR SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions or limitations may not apply to you.

In the event that any limitation on the period of time for bringing an action, claim, dispute or proceeding against us, located in this “Limitations on Our Liability” section, is determined or held to be inapplicable or unenforceable by any court, arbitration panel or other tribunal, then the statute of limitations for the State of Texas shall apply to any such action, claim, dispute or proceeding referred to final or binding arbitration.

Your Indemnification of Us

You shall defend, indemnify and hold harmless Upgraded Points, LLC and our officers, directors, shareholders, employees, independent contractors, agents, representatives and affiliates from and against all claims and expenses, including, but not limited to, attorneys’ fees, arising out of, or attributable to: (i) any breach or violation of this Agreement by you; (ii) your failure to provide accurate, complete and current personally identifiable information requested or required by us; (iii) your access or use of our Services; (iv) access or use of our Services under any password that may be issued to you; and/or (v) any personal injury or property damage caused by you.

Amendments of this Agreement

We reserve the right to update, amend and/or change this Agreement at any time at our sole discretion and without notice. Updates to this Agreement will be posted here. Amendments will take effect immediately upon us posting the updated Agreement on our Services. You are encouraged to revisit this Agreement from time to time in order to review any changes that have been made. The date on which this Agreement was last updated will be noted immediately above this Agreement. Your continued access and use of our Services following the posting of any such changes shall automatically be deemed your acceptance of all changes.

Our Remedies

You acknowledge that we may be irreparably damaged if this Agreement is not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of this Agreement by you, we shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of this Agreement. For purposes of this Section, you agree that any action or proceeding with regard to such injunction restraining such breach or threatened breach shall be brought in the courts of record of the State of Texas or in the United States District Court, Western District of Texas. You consent to the jurisdiction of such court and waive any objection to the laying of venue of any such action or proceeding in such court. You agree that service of any court paper may be effected on such party by mail or in such other manner as may be provided under applicable laws, rules of procedure or local rules.

Legal Disputes

We endeavor to resolve customer concerns as quickly as possible. In the unlikely event that you’re not satisfied with customer service’s solution, and you and Upgraded Points, LLC are unable to resolve a dispute through the Informal Dispute Resolution Procedures set forth below, you (and we) agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to or arising out of this or previous versions of this Agreement, your use of or access to the Services will be resolved by arbitration or small claims court as further set forth below in the section entitled “Agreement to Arbitrate.”

Please read this section carefully. It affects your rights and will have a substantial impact on how claims you and we have against each other are resolved.

Agreement to Arbitrate and Class Action and Jury Trial Waiver

You and we each agree that any and all disputes or claims that have arisen or may arise between you and us relating in any way to or arising out of this or previous versions of this Agreement, your use of or access to our Services, or any products or services sold, offered, or purchased through our Services shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate section (this “Agreement to Arbitrate”).

Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures

You and we agree that good-faith, informal efforts to resolve disputes often can result in a prompt, cost-effective and mutually beneficial outcome. Therefore, a party who intends to initiate arbitration or file a claim in small claims court must first send to the other a written Notice of Dispute (“Notice”). A Notice from you to Upgraded Points, LLC must be emailed to mail@upgradedpoints.com (“Notice Address”). Any Notice must include (i) the claimant’s name, address, and email address; (ii) a description of the nature and basis of the claim or dispute; (iii) if you are submitting the Notice, any relevant facts regarding your use of the website, including whether you have created an account with or receive any newsletters associated with the website; (iv) a description of the nature and basis of the specific relief sought, including the damages sought, if any, and a detailed calculation for them; and (v) a personally signed statement from the claimant (and not their counsel) verifying the accuracy of the contents of the Notice. The Notice must be individualized, meaning it can concern only your dispute and no other person’s dispute.

After receipt of a completed Notice, the parties shall engage in a good faith effort to resolve the dispute for a period of 60 days (which can be extended by agreement). You and we agree that, after receipt of the completed Notice, the recipient may request an individualized telephone or video settlement conference (which can be held after the 60-day period) and both parties will personally attend (with counsel, if represented). You and we agree that the parties (and counsel, if represented) shall work cooperatively to schedule the conference at the earliest mutually-convenient time and to seek to reach a resolution. If we and you do not reach an agreement to resolve the issues identified in the Notice within 60 days after the completed Notice is received (or a longer time if agreed to by the parties), you or we may commence an arbitration proceeding or a small claims court proceeding (if permitted by small claims court rules).

Compliance with this Mandatory Pre-Arbitration Notice andInformal Dispute Resolution Procedures section is a condition precedent to initiating arbitration. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution procedures set forth in this Agreement to Arbitrate. All of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are essential so that you and Upgraded Points, LLC have a meaningful opportunity to resolve disputes informally. If any aspect of these requirements has not been met, a court of competent jurisdiction may enjoin the filing or prosecution of an arbitration. In addition, unless prohibited by law, the arbitration administrator may not accept, administer, assess, or demand fees in connection with an arbitration that has been initiated without completion of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures. If the arbitration is already pending, it shall be administratively closed. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with these procedures in arbitration.

Prohibition of Class and Representative Actions and Non-Individualized Relief

YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OUR OTHER USERS.

Binding Arbitration, Jury Waiver, and Class Waiver

You and Upgraded Points, LLC agree that any controversy or claim arising out of or relating to the Services, use of the Services, this Agreement shall be settled by final and binding arbitration in Texas, or at such other location as may be mutually agreed upon by the parties, in accordance with the applicable procedural rules set forth by the National Arbitration & Mediation (“NAM”) (including the Comprehensive Dispute Resolution Rules and Procedures) (“NAM Rules”)), and judgement upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.

Arbitration shall be conducted by NAM. The arbitrator shall apply Texas law consistent with the Federal Arbitration Act and applicable statutes of limitations and shall honor claims of privilege recognized at law.

The arbitration shall be heard in Travis County of the state of Texas. The arbitration will be conducted by a single neutral arbitrator selected in accordance with NAM Rules. Any claims or disputes where the total amount sought is less than $10,000 USD may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount sought is $10,000 USD or more, the right to a hearing will be determined by NAM. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three; the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise.

The arbitrator shall apply Texas law consistent with the Federal Arbitration Act and applicable statutes of limitations and shall honor claims of privilege recognized at law.

If any part of this arbitration provision is deemed to be invalid, unenforceable or illegal (other than that claims will not be arbitrated on a class or representative basis), or otherwise conflicts with the rules and procedures established under applicable law, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, the portion that is deemed invalid, unenforceable or illegal is that claims will not be arbitrated on a class or representative basis, then the entirety of this arbitration provision shall be null and void, and neither claimant nor Upgraded Points, LLC shall be entitled to arbitrate their dispute.

The arbitrator shall institute discovery consistent with the goals of arbitration. The Parties will be entitled to all discovery rights permitted by the Federal Rules of Civil Procedure.

The arbitrator’s decision will include the essential findings and conclusions on which the arbitrator bases the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award any relief allowed by law or the applicable rules, but declaratory or injunctive relief may be awarded only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.

THE ARBITRATOR HAS NO AUTHORITY TO AWARD PUNITIVE DAMAGES. NEITHER YOU NOR UPGRADED POINTS, LLC AGREES TO ANY ARBITRATION ON A CLASS BASIS, AND THE ARBITRATOR SHALL HAVE NO AUTHORITY TO PROCEED ON SUCH A BASIS. A PARTY MAY ASSERT A CLAIM OR COUNTERCLAIM ONLY IN THAT PARTY’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS PROCEEDING. NOTWITHSTANDING ANYTHING TO THE CONTRARY BY APPLICABLE LAW, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF CLASS PROCEEDING. UNDER THE ARBITRATION PROCEDURES OUTLINED IN THIS SECTION, ARBITRATOR SHALL NOT COMBINE OR CONSOLIDATE MORE THAN ONE PARTIES CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES TO AN ARBITRATION PROCEEDING.

BY AGREEING TO THE ARBITRATION OF DISPUTES AS SET FORTH HEREIN, YOU AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND LIMITING YOUR RIGHT TO APPEAL AND YOU UNDERSTAND THAT YOU ARE WAIVING YOUR RIGHTS TO OTHER AVAILABLE RESOLUTION PROCESSES, SUCH AS A COURT ACTION. DO NOT USE THIS WEBSITE IF YOU DO NOT AGREE TO THE FOREGOING BINDING ARBITRATION PROVISIONS.

Notwithstanding the foregoing, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.

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You may opt out of this Agreement to Arbitrate. If you do so, neither you nor Upgraded Points, LLC can force the other to arbitrate. To opt out, you must notify Upgraded Points, LLC in writing no later than 30 days after first becoming subject to this Agreement to Arbitrate; otherwise you shall be bound to arbitrate disputes on a non-class basis in accordance with the Agreement. If you opt out of only the arbitration provisions, and not also the class action waiver, the class action waiver still applies. You may not opt out of only the class action waiver and not also the arbitration provisions. Your notice must include your name and address and an unequivocal statement that you want to opt out of this Agreement to Arbitrate. You must either mail your opt-out notice to this address: Upgraded Points, LLC, Attn: Arbitration Opt-out, mail@upgradedpoints.com.

Severability

With the exception of any of the provisions in the Section titled Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply. If an arbitrator or court decides that any of the provisions in the Section titled Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”) is invalid or unenforceable, then the entirety of this Agreement to Arbitrate shall be null and void. The remainder of the Agreement and its Legal Disputes Section will continue to apply.

Future Changes to the Agreement to Arbitrate

Notwithstanding any provision in the Agreement to the contrary, you and we agree that if we make any change to this Agreement to Arbitrate (other than a change to any notice address or site link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the change. The change shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and us.

Judicial Forum for Legal Disputes

Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in Travis County, Texas. You and us agree to submit to the personal jurisdiction of the courts located within Travis County, Texas for the purpose of litigating all such claims or disputes. You also agree that: (i) our Services shall be deemed solely based in the State of Texas; and (ii) our Services shall be deemed passive Services that do not give rise to personal jurisdiction over us and our assigns, either specific or general, in jurisdictions other than the State of Texas.

Miscellaneous

If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.

The headings contained in this Agreement are for convenience of reference only, are not to be considered a part of this Agreement, and shall not limit or otherwise affect in any way the meaning or interpretation of this Agreement.

All covenants, agreements, representations and warranties made in this Agreement, as may be amended by us, from time to time, shall survive your acceptance of this Agreement and the termination of this Agreement.

This Agreement, the Privacy Policy and the Cookie Policy represent the entire understanding and agreement between you and us regarding the subject matter of the same, and supersede all other previous agreements, understandings and/or representations regarding the same.

Civil Code Section 1789.3 Notice For California Users
In accordance with California Civil Code Sec. 1789.3, California resident users are entitled to know that they may file grievances and complaints regarding this website with the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs, in writing at 1625 North Market Blvd., Sacramento, California 95834, by telephone at (916) 445-1254 or (800) 952-5210, or by email to dca@dca.ca.gov.

If you have any questions regarding this Agreement, please contact us at our email address: mail@upgradedpoints.com.

Contact Us

If you have questions, comments, concerns or feedback regarding this Agreement or our Services, please contact us at mail@upgradedpoints.com.