Terms of Use and Sale

TERMS AND CONDITIONS

Last Updated: December 30, 2021

 

1.     These Terms of Use and Sale (“TOUS”) constitute a legally binding agreement made by and between Upsprout and you as the user of the Sites (personally and, if applicable, on behalf of the third party for whom you are using the Sites; collectively, “you” and “your”). The TOUS govern your use of the retail, membership and other services we make available on, through or in connection with the Sites and any other transactions or promotions you engage in with us (collectively, “Services”).

 

2.     BY ACCESSING OR USING ANY PART OF THE SITES OR SERVICES, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THESE TOUS, WHICH CONTAIN AN ARBITRATION AGREEMENT, A WAIVER OF CLASS-ACTION RIGHTS, AND LIABILITY LIMITATIONS. IF YOU DO NOT AGREE TO BE SO BOUND, YOU MAY NOT ACCESS OR USE THE SITES OR ANY SERVICES.

 

3.     If you have any questions about these TOUS, please contact us by email at [email protected] or call us at (347) 875-0160.  

Application

4.     These Terms and Conditions will apply to the purchase of the goods by you (the Customer or you). We are Upsprout LLC whose registered office is at 1702 Camino de la Vuelta ,   Santa Fe, 87501   with  email address [email protected]; telephone number (347) 875-0160; (the Supplier or us or we).

5.     You understand and agree that to use the Sites and Services you must be of legal age (18 years of age or older, or, if you have parental consent, 16 years of age). If you use the Sites or Services on behalf of any third party, you agree that you are an authorized representative of that third party and that your use of the Sites or Services constitutes that third party’s acceptance of these TOUS. In addition, if you have been previously prohibited from accessing the Sites or Services or the website of any of our affiliates, you are not permitted to access or use the Sites or Services.

 

6.     Without limitation, you will not, directly or indirectly: (a) copy, reproduce, modify, distribute, display, create derivative works of or transmit any content on the Sites; (b) use the Services or Sites commercially; (c) reverse engineer, decompile, tamper with or disassemble the technology used to provide the Sites or Services (except as and only to the extent any foregoing restriction is prohibited by a non-waivable provision of applicable law); (d) interfere with or damage the Sites, Services, or underlying technology; (e) impersonate or misrepresent your identity or affiliation; (f) attempt to obtain unauthorized access to the Sites or Services; (g) collect information about users of the Sites or the Services; (h) violate, misappropriate or infringe a third party’s intellectual property or other right, or any social media platform terms; (i) violate any law, rule, or regulation, or (j) interfere with any third party’s ability to use or enjoy, or our ability to provide, the Sites or Services.

 

7.     Information about how we collect, use and disclose your personal data, and the basis for this, can be found in Upsprout’s Privacy Policy. Your agreement to these TOUS constitutes your acknowledgement that you have read and accepted the Privacy Policy.

Interpretation

8.     Consumer means an individual acting for purposes which are wholly or mainly outside their trade, business, craft or profession;

9.     Contract means the legally-binding agreement between you and us for the supply of the Goods;

10.  Delivery Location means the Supplier’s premises or other location where the Goods are to be supplied, as set out in the Order;

11.  Durable Medium means paper or email, or any other medium that allows information to be addressed personally to the recipient, enables the recipient to store the information in a way accessible for future reference for a period that is long enough for the purposes of the information, and allows the unchanged reproduction of the information stored;

12.  Goods means the goods advertised on the Website that we supply to you of the number and description as set out in the Order;

13.  Order means the Customer’s order for the Goods from the Supplier as submitted following the step by step process set out on the Website;

14.  Privacy Policy means the terms which set out how we will deal with confidential and personal information received from you via the Website;

15.  Website means our website upsprout.shop and its subdomains on which the Goods are advertised.

Goods

16.  The description of the Goods is as set out in the Website, catalogues, brochures or other form of advertisement. Any description is for illustrative purposes only and there may be small discrepancies in the size and color of the Goods supplied.

17.  In the case of any Goods made to your special requirements, it is your responsibility to ensure that any information or specification you provide is accurate.

18.  All Goods which appear on the Website are subject to availability.

19.  We can make changes to the Goods which are necessary to comply with any applicable law or safety requirement. We will notify you of these changes.

Personal information

20.  We retain and use all information strictly under the Privacy Policy.

21.  We may contact you by using e-mail, text message or other electronic communication methods and by pre-paid post and you expressly agree to this.

Basis of Sale

22.  The description of the Goods in our website does not constitute a contractual offer to sell the Goods. When an Order has been submitted on the Website, we can reject it for any reason, although we will try to tell you the reason without delay.

23.  The Order process is set out on the Website. Each step allows you to check and amend any errors before submitting the Order. It is your responsibility to check that you have used the ordering process correctly.

24.  A Contract will be formed for the sale of Goods ordered only when you receive an email from us confirming the Order (Order Confirmation). You must ensure that the Order Confirmation is complete and accurate and inform us immediately of any errors. We are not responsible for any inaccuracies in the Order placed by you. By placing an Order you agree to us giving you confirmation of the Contract by means of an email with all information in it (ie the Order Confirmation). You will receive the Order Confirmation within a reasonable time after making the Contract, but in any event not later than the delivery of any Goods supplied under the Contract.

25.  Any quotation is valid for a maximum period of  10  days  from its date, unless we expressly withdraw it at an earlier time.

26.  No variation of the Contract, whether about description of the Goods, Fees or otherwise, can be made after it has been entered into unless the variation is agreed by the Customer and the Supplier in writing.

27.  We try to make the Sites and Services thorough, accurate, and helpful to our customers. Nonetheless, there may be times when certain information contained on the Sites or Services may be incorrect, incomplete, inaccurate, or appear inaccurate. We apologize in advance for any such issues that may result in an incorrect price, inaccurate description, item unavailability or other issue that may affect your order. 

 

28.  If the correct price of a Product or Service is higher than the listed price, we have the right to cancel any incorrectly priced orders or charge the corrected price, but you have a right to cancel your order upon being notified of the corrected price. We also reserve the right to update information on the Sites or Services and/or to make corrections, without notice. If necessary, we may also substitute a Product by informing you of the issue and giving you an opportunity to modify your order or selection. 

 

29.  Upsprout reserves the right to change the prices and available Products and Services at any time. Any Service you have already paid for will not be affected by such change for the prepaid term of the Service. Quantities of some Products or Services may be limited and stock cannot be guaranteed. Products and Services offered for sale on the Sites are available for shipment only to the United States, Canada and certain parts of Europe, and all prices are quoted in U.S. dollars. The availability of Products and Services may be limited depending upon the shipment destination. Prices do not include any shipping and handling fees, foreign exchange or transaction fees, or any applicable taxes – any shipping and handling fees and taxes charged or collected by Upsprout will be added to your order and will appear as a separate charge on your order receipt/confirmation. 

 

30.  If applicable, currency exchange rates and foreign transaction fees are generally determined and applied by your payment provider and you acknowledge and agree that Upsprout shall have no responsibility for refunding nor compensating you for amounts or expenses incurred in connection therewith.

 

31.   The display of Products or Services on the Sites invites you to make us an offer to buy the Products or Services. Your order is an offer to buy the Products or Services, which we accept only by shipping the Products or providing the Services ordered. Any confirmation that you receive after placing an order does not constitute an acceptance of your offer, and is subject to correction before shipment or provision of the Services in the event of inaccuracies, price corrections, Product unavailability, or for any other reason.

Price and Payment

32.  The price of the Goods and any additional delivery or other charges is that set out on the Website at the date of the Order or such other price as we may agree in writing.

33.  Prices and charges include VAT at the rate applicable at the time of the Order.

34.  You must pay by submitting your credit or debit card details with your Order and we can take payment immediately or otherwise before delivery of the Goods.

Delivery

35.  We will deliver the Goods, to the Delivery Location by the time or within the agreed period or, failing any agreement, without undue delay and, in any event, not more than 30 days after the day on which the Contract is entered into.

36.  In any case, regardless of events beyond our control, if we do not deliver the Goods on time, you can (in addition to any other remedies) treat the Contract at an end if:

a.     we have refused to deliver the Goods, or if delivery on time is essential taking into account all the relevant circumstances at the time the Contract was made, or you said to us before the Contract was made that delivery on time was essential; or

b.     after we have failed to deliver on time, you have specified a later period which is appropriate to the circumstances and we have not delivered within that period.

37.  If you treat the Contract at an end, we will (in addition to other remedies) promptly return all payments made under the Contract.

38.  If you were entitled to treat the Contract at an end, but do not do so, you are not prevented from cancelling the Order for any Goods or rejecting Goods that have been delivered and, if you do this, we will (in addition to other remedies) without delay return all payments made under the Contract for any such cancelled or rejected Goods. If the Goods have been delivered, you must return them to us or allow us to collect them from you and we will pay the costs of this.

39.  If any Goods form a commercial unit (a unit is a commercial unit if division of the unit would materially impair the value of the goods or the character of the unit) you cannot cancel or reject the Order for some of those Goods without also cancelling or rejecting the Order for the rest of them.

40.  We do not generally deliver to addresses outside of the United States. If, however, we accept an Order for delivery outside that area, you may need to pay import duties or other taxes, as we will not pay them.

41.  You agree we may deliver the Goods in instalments if we suffer a shortage of stock or other genuine and fair reason, subject to the above provisions and provided you are not liable for extra charges.

42.  If you or your nominee fail, through no fault of ours, to take delivery of the Goods at the Delivery Location, we may charge the reasonable costs of storing and redelivering them.

43.  The Goods will become your responsibility from the completion of delivery or Customer collection. You must, if reasonably practicable, examine the Goods before accepting them.

Withdrawal, returns and cancellation

44.  This is a distance contract (as defined below) which has the cancellation rights (Cancellation Rights) set out below. These Cancellation Rights, however, do not apply, to a contract for the following goods (with no others) in the following circumstances:

a.     foodstuffs, beverages or other goods intended for current consumption in the household and which are supplied on frequent and regular rounds to your residence or workplace;

b.     goods that are made to your specifications or are clearly personalized;

c.     goods which are liable to deteriorate or expire rapidly.

45.  Also, the Cancellation Rights for a Contract cease to be available in the following circumstances:

a.     in the case of any sales contract, if the goods become mixed inseparably (according to their nature) with other items after delivery.

46.  Right to cancel:

a.     Subject as stated in these Terms and Conditions, you can cancel this contract within 7 days of receipt of the first shipment in accordance with our risk-free guarantee policy. 

b.     The cancellation period will expire after 7 days from the day on which you acquire, or a third party, other than the carrier indicated by you, acquires physical possession of the last of the Goods. In a contract for the supply of goods over time (ie subscriptions), the right to cancel will be 7 days after the first delivery.

c.     To exercise the right to cancel, you must inform us of your decision to cancel this Contract by a clear statement setting out your decision (eg a letter sent by post or email). You can use the attached model cancellation form, but it is not obligatory. In any event, you must be able to show clear evidence of when the cancellation was made, so you may decide to use the model cancellation form.

d.     To meet the cancellation deadline, it is sufficient for you to send your communication concerning your exercise of the right to cancel before the cancellation period has expired.

47.  Effects of cancellation in the cancellation period

a.     Except as set out below, if you cancel this Contract, we will reimburse to you all payments received from you to the payment method used to make the purchase. 

48.  Deduction for Goods supplied

a.     We may make a deduction from the reimbursement for loss in value of any Goods supplied, if the loss is the result of unnecessary handling by you (ie handling the Goods beyond what is necessary to establish the nature, characteristics and functioning of the Goods: eg it goes beyond the sort of handling that might be reasonably allowed in a shop). This is because you are liable for that loss and, if that deduction is not made, you must pay us the amount of that loss.

49.  Timing of reimbursement

a.     If we have not offered to collect the Goods, we will make the reimbursement without undue delay, and not later than:

b.     14 days after the day we receive back from you any Goods supplied, or

c.     (if earlier) 14 days after the day you provide evidence that you have sent back the Goods.

d.     If we have offered to collect the Goods or if no Goods were supplied, we will make the reimbursement without undue delay, and not later than 14 days after the day on which we are informed about your decision to cancel this Contract.

e.     We will make the reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of the reimbursement.

50.  Returning Goods

a.     If you have received Goods in connection with the Contract which you have cancelled, you must send back the Goods or hand them over to us at        1702 Camino de la Vuelta ,   Santa Fe, 87501     without delay and in any event not later than 14 days from the day on which you communicate to us your cancellation of this Contract. The deadline is met if you send back the Goods before the period of 14 days has expired. You agree that you will have to bear the cost of returning the Goods.

51.  For the purposes of these Cancellation Rights, these words have the following meanings:

a.     distance contract means a contract concluded between a trader and a consumer under an organized distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;

b.     sales contract means a contract under which a trader transfers or agrees to transfer the ownership of goods to a consumer and the consumer pays or agrees to pay the price, including any contract that has both goods and services as its object.

 Promotions and Credits

 

52.  Upsprout may, from time to time and in its sole discretion, offer certain promotional codes for discounts applicable toward purchases on specified Sites. Promotional codes are nontransferable and are not redeemable for cash, credit, or toward previous purchases. There is no cash alternative. Furthermore, promotional codes cannot be used in conjunction with any other offer, promotional discount, or gift cards and must be redeemed by the date published, if provided. Lost promotional codes cannot be replaced. Limit one promotional code per customer. Promotional codes are void where prohibited. Any promotional program may be terminated or modified by Upsprout at any time in its sole discretion.

 

 Intellectual property; third-party content and services

 

53.  All content on the Sites, or otherwise made available via the Sites, including the text, notes, graphics, photos, sounds, music, videos, interactivities and the like (“Content”), the trademarks, service marks and logos contained therein (“Marks”), the design of the Sites and/or Services (“Site Design”), and all software and other technology used to provide the Sites and/or Services (“Technology”), are owned by or licensed to Upsprout and/or its affiliates. Content is provided to you for your information and personal use only and may not be used, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever. We reserve all rights not expressly granted in and to the Sites, Services, Content, Marks, Site Design and Technology. Using the Sites and/or Services does not give you any ownership of or right in or to any Content, Marks, Site Design or Technology.

 

54.  The Sites may contain information and content provided by third parties. We have no obligation to monitor, we do not endorse, and we are not liable for any third-party content. In addition, the Sites may contain links to third-party websites. Upsprout is not responsible for the content on any linked site or any link contained in a linked site. We do not endorse nor shall we have any responsibility for the content on such third-party sites.

 

Conformity and Guarantee

55.  We have a legal duty to supply the Goods in conformity with the Contract, and will not have conformed if it does not meet the following obligation.

56.  Upon delivery, the Goods will:

a.     be of satisfactory quality;

b.     be reasonably fit for any particular purpose for which you buy the Goods which, before the Contract is made, you made known to us (unless you do not actually rely, or it is unreasonable for you to rely, on our skill and judgment) and be fit for any purpose held out by us or set out in the Contract; and

c.     conform to their description.

57.  It is not a failure to conform if the failure has its origin in your materials.

58.  We will immediately, or within a reasonable time, give you the benefit of the free guarantee given by the manufacturer of the Goods. Details of the guarantee, including the name and address of the manufacturer, the duration and territorial scope of the guarantee, are set out in the manufacturer’s guarantee provided with the Goods. This guarantee will take effect at the time the Goods are delivered, and will not reduce your legal rights.

Successors and our sub-contractors

59.  Either party can transfer the benefit of this Contract to someone else, and will remain liable to the other for its obligations under the Contract. The Supplier will be liable for the acts of any sub-contractors who it chooses to help perform its duties.

Circumstances beyond the control of either party

60.  In the event of any failure by a party because of something beyond its reasonable control:

a.     the party will advise the other party as soon as reasonably practicable; and

b.     the party’s obligations will be suspended so far as is reasonable, provided that that party will act reasonably, and the party will not be liable for any failure which it could not reasonably avoid, but this will not affect the Customer’s above rights relating to delivery and any right to cancel, below.

Privacy

61.  Your privacy is critical to us. 

62.  These Terms and Conditions should be read alongside, and are in addition to our policies, including our privacy policy (https://upsprout.shop/privacy-policy/) and cookies policy (https://upsprout.shop/privacy-policy/).

63.  We are a Data Controller of the Personal Data we Process in providing Goods to you.

64.  Where you supply Personal Data to us so we can provide Goods to you, and we Process that Personal Data in the course of providing the Goods to you, we will comply with our obligations imposed by the Data Protection Laws:

a.     before or at the time of collecting Personal Data, we will identify the purposes for which information is being collected;

b.     we will only Process Personal Data for the purposes identified;

c.     we will respect your rights in relation to your Personal Data; and

d.     we will implement technical and organizational measures to ensure your Personal Data is secure.

65.  For any enquiries or complaints regarding data privacy, you can e-mail: [email protected].

 

 

 LIMITATION OF LIABILITY

 

66.  BECAUSE SOME STATES OR JURISDICTIONS MAY NOT ALLOW LIMITATIONS ON THE DURATION OF IMPLIED WARRANTIES, OR LIMITATIONS ON OR EXCLUSIONS OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE BELOW LIMITATIONS MAY NOT APPLY TO YOU DEPENDING ON YOUR STATE OR COUNTRY OF RESIDENCE.

67.  IN NO EVENT WILL UPSPROUT, ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR REPRESENTATIVES (COLLECTIVELY “UPSPROUT” FOR PURPOSES OF THIS SECTION 11) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES RESULTING FROM THE PERFORMANCE, USE OF OR THE INABILITY TO USE THE SITES, SERVICES OR PRODUCTS, EVEN IF UPSPROUT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OF STATUTE OR OTHERWISE. UPSPROUT WILL NOT BE LIABLE FOR THE COST OF REPLACEMENT PRODUCTS, LOSS OF REVENUE OR PROFIT, OR LOSS OF GOOD WILL.

68.  IN ANY EVENT, EXCEPT IN THE CASE OF UPSPROUT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNT PAID FOR THE PRODUCT(S) TO WHICH THE CLAIM RELATES OR, IF THE CLAIM DOES NOT RELATE TO A PRODUCT, $100.

Governing law, jurisdiction and complaints

69.  The Contract (including any non-contractual matters) is governed by the law of England and Wales.

70.  Disputes can be submitted to the jurisdiction of the courts of England and Wales or, where the Customer lives in Scotland or Northern Ireland, in the courts of respectively Scotland or Northern Ireland.

71.  We try to avoid any dispute, so we deal with complaints in the following way: If a dispute occurs customers should contact us to find a solution. We will aim to respond with an appropriate solution within 5 days..

 Indemnity

72.  You agree to defend, indemnify and hold harmless Upsprout, its affiliates and their respective directors, officers, employees and agents (the “Indemnified Parties”) from and against any and all claims, damages, losses, liabilities and expenses (including reasonable legal fees) incurred by or asserted against any of the Indemnified Parties arising out of, relating to or resulting from: (a) your violation of any provision of these TOUS; (b) your misuse of any Product purchased by you on the Sites; (c) any other party’s access and use of the Sites or Services with your unique username, password or other appropriate security code (if such codes are required to access the Sites or Services in the future); (d) our permitted use of your User Content in the context of the Sites or Services; (e) your misuse of the Sites or Services; or (f) your negligence or other misconduct (collectively “Claims”). You agree to promptly notify Upsprout of any Claims, cooperate with Upsprout in defending such Claims, and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance). We may, in our sole and absolute discretion, control the disposition of any such Claim at your sole cost and expense. You may not settle any Claim without our express written consent.

 

 

 

Upsprout LLC 

1702 Camino de la Vuelta    

Santa Fe 87501        

Email address: [email protected]  

Telephone number: (347) 875-0160