UP — Terms of use.

Last Updated: July 13, 2022 

Thanks for visiting Up! These Terms of Use (“Terms”) apply to your purchase of Up clothing and accessories (collectively, our “Products”) and to your access to and use of the website and other online products and services (collectively, our “Services”) provided by Up Wear (Pty) Ltd. (“Up,” “we” or “us” ). By accessing or using our Services, you agree to these Terms. If you do not agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 14, do not access or use our Services. 


1 Privacy 

2 Eligibility 

3 User Accounts and Account Security 

4 Terms of Sale 

5 User Content 

6 Prohibited Conduct and Content 

7 Feedback 

8 Limited License; Copyright and Trademark 

9 Copyright Complaints 

10 Transfer and Processing of Data 

11 Indemnification 

12 Disclaimers 

13 Limitation of Liability 

15 Governing Law and Venue 

16 Changes to these Terms 

17 Termination 

18 Severability 

19 Other Terms 

20 Miscellaneous 

21 Name and Likeness Release 

22 Liability Release and Hold Harmless 

1 Privacy 

Please refer to our Privacy Policy for information about how we collect, use and disclose information about you. 

2 Eligibility 

You must be at least 13 years of age to access or use our Services. If you are between 13 and 18 years of age (or the age of legal majority where you live), you may only access or use our Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are accessing or using our Services on behalf of another person or entity, you represent that you are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms. 

3 User Accounts and Account Security 

You may have the ability to create an online account. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account credentials, not share your account credentials with others and promptly notify Up if you discover or suspect that someone has accessed your account without your permission. 

4 Terms of Sale 

The terms in this Section 4 apply if you purchase Products using the Services for delivery to locations in South Africa and the United States. 

4.1 Payment and Billing Information 

By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and you authorize us to charge your payment method for the total amount of your order (including any applicable taxes and other charges). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your order. 

4.2 Pricing and Availability 

Prices do not include applicable taxes and other charges, unless we clearly state in writing that a price includes applicable taxes. All Products offered for sale are subject to availability and we reserve the right to impose quantity limits on any order, reject all or any part of an order and discontinue our Products without prior notice, even if you have already placed your order. Prices for Products are subject to change at any time, but changes will not affect any order for Products you have already placed. 

In the event that a Product you are interested in purchasing is not listed or is listed as "out of stock" on the Product’s information page, it is not currently available for ordering. Please check back at a later time as our Product inventory is subject to change. 

4.3 Taxes 

You are responsible for any sales, duty or other governmental taxes or fees due with respect to your purchase of Products. We will collect applicable sales tax if we determine that we have a duty to collect sales tax. We will present any taxes that we are required to collect at checkout, but note that actual taxes charged may be adjusted from the amount shown at checkout. Several factors may cause this, such as variances between processor programs and changes in tax rates. 

4.4 Shipping; Risk of Loss 

You agree to pay any shipping and handling charges shown at the time you make a purchase in accordance with our shipping policies available. We reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to time, but we will provide notice of the charges applicable to you before you make your purchase. Any delivery dates or times shown as part of the checkout process are estimates only and are not guaranteed. Unless we state otherwise, risk of loss or damage passes to you upon delivery of the Products to your specified delivery location. 

4.5 Returns and Cancelling or Changing an Order

You may return or exchange any unused Up Products in accordance with our returns and exchange policy available here. 

4.6 Errors 

We attempt to be as accurate as possible and to eliminate errors; however, we do not warrant that all Product descriptions, photographs, pricing and other information are accurate, complete, reliable, current or error-free. In the event of an error, whether on the Services, in an order confirmation, in processing an order or delivering a Product, we reserve the right to correct such error and revise your order accordingly (including charging the correct price) or to cancel the order and refund any amount charged. 

5 User Content 

Our Services may allow you to create, post, store and share content, including messages, text, photos, videos and other materials (collectively, "User Content"). Except for the license you grant below, you retain all rights in and to your User Content, as between you and Up. 

You grant Up a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully- paid, and sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. When you post or otherwise share User Content on or through our Services, you understand that your User Content and any associated information (such as your username and date of Product review) will be visible to the public. You may not to create, post, store or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. 

6 Prohibited Conduct and Content 

You will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and that you are solely responsible for your conduct while accessing or using our Services. You will not: 

Engage in any harassing, threatening, intimidating, predatory or stalking conduct; 

Use or attempt to use another user’s account without authorization from that user and Up; 

Use our Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner; 

Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services; 

Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access; 

Develop or use any third-party applications that interact with our Services without our prior written consent, including any scripts designed to scrape or extract data from our Services; or 

Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms. 

You may also only post or otherwise share User Content that is non-confidential and you have all necessary rights to disclose. You may not create, post, store or share any User Content that: 

Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent; 

Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law; 

May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party; 

Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences; 

Impersonates, or misrepresents your affiliation with, any person or entity; 

References or depicts Ups or our Products or Services but fails to disclose a material connection to us, if you have one (for example, if you are an Up employee); 

Contains any unsolicited promotions, political campaigning, advertising or solicitations; 

Contains any private or personal information of a third party without such third party’s consent; 

Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or 

Is, in our sole judgment, objectionable or that restricts or inhibits any other person from using or enjoying our Services, or that may expose Up or others to any harm or liability of any type. 

In addition, although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason. 

7 Feedback 

Any questions, comments, suggestions, ideas, original or creative materials or other information you submit about Up or our Services (collectively, “Feedback”), is non- confidential and will become the sole property of Up. We will own exclusive rights, including, without limitation, all intellectual property rights, in and to Feedback and will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you. 

8 Limited License; Copyright and Trademark 

Our Services and the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein (collectively, the “Up Content”) are owned by or licensed to Up and are protected under both South African and foreign laws. Except as explicitly stated in these Terms, Up and our licensors reserve all rights in and to our Services and the UpContent. You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services and UpContent for your own personal use; however, such license is subject to these Terms and does not include any right to (a) sell, resell or commercially use our Services or Up Content; (b) copy, reproduce, distribute, publicly perform or publicly display Ups Content, except as expressly permitted by us or our licensors; (c) modify the Up Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services or Up Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our Services or Up Content other than for their intended purposes. Any use of our Services or Up Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. 


9 Transfer and Processing of Data 

By accessing or using the Services, you consent to the processing and transfer of information relating to you, in and to South Africaand other countries, which may have less adequate data protection laws than those found in your country of residency. 

10 Indemnification 

To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Up and our officers, directors, agents, partners and employees (together with Up, the “Up Parties”) from and against any loss, liability, claim, demand, damages, expenses or costs (collectively, “Claims”) arising out of or related to (a) your use or misuse of our Services; (b) your User Content or Feedback; (c) your violation of these Terms; and (d) your violation of any rights of another. You agree to promptly notify the Up Parties of any third party Claims and pay all fees, costs and expenses associated with defending such Claims (including but not limited to attorneys’ fees). You further agree that the UpParties shall have control of the defense or settlement of any third party Claims. 

11 Disclaimers 

We do not control, endorse or take responsibility for any User Content or third-party content available on or linked to by our Services, including User Content. 

Your use of our Services is at your sole risk. Our Services are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Up does not represent or warrant that our 

Services are accurate, complete, reliable, current or error-free. While Up attempts to make your access to and use of our Services safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Services. 

12 Limitation of Liability 

To the fullest extent permitted by applicable law, the Up Parties will not be liable for any indirect, special, incidental or consequential damages of any kind arising out of or in any way related to the access to or use of the Services or the purchase of Products through the Services, including but not limited to any damages caused by or resulting from reliance on any information obtained from the Up Parties and from events beyond the Up Parties’ reasonable control, even if Up or the other Up Parties have been advised of the possibility of such damages. 

To the fullest extent permitted by applicable law, the total liability of the Up Parties for any claim arising out of or relating to these Terms, our Services or Products purchased through the Services, regardless of the form of the action, is limited to the greater of (a) the purchase price of the Product(s) giving rise to the claim or (b) $100. 

The limitations set forth in this section will not limit or exclude the Up Parties’ liability for personal injury or property damaged caused by the Products you purchase through the Services or for the Up Parties’ gross negligence, fraud, intentional, willful, malicious or reckless misconduct. 

13 Governing Law and Venue 

These Terms and your access to and use of our Services, including to purchase Products, will be governed by and construed and enforced in accordance with the laws of New York, without regard to conflict of law rules or principles (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of New York and the United States, respectively, sitting in New York County. 

14 Changes to these Terms 

We may make changes to these Terms from time to time. If we do make changes, we will post the amended Terms to our Services and update the “Last Updated” date above. We may also attempt to notify you by sending an email notification to the address associated with your account or providing notice through our Services. Unless we say otherwise in our notice, the amended Terms will be effective immediately and your continued access to and use of our Services after we provide notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services. 

15 Termination 

We reserve the right, without notice and in our sole discretion, to terminate your right to access or use our Services. We are not responsible for any loss or harm related to your inability to access or use our Services. 

16 Severability 

If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions. 


17 Miscellaneous 

These Terms constitute the entire agreement between you and Up relating to your access to and use of our Services. The failure of Up to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity. 

18 Name and Likeness Release 

For good and valuable consideration the receipt, adequacy and sufficiency of which are hereby acknowledged, I hereby give Up and any parties working with Up permission to record or take (or acknowledge that such parties have recorded or taken) recordings and/or still photographs (“Footage”) of me at and around exercise events staged by Up. I further grant the right to include all or any portion of such Footage in any audiovisual offering distributed via any means or media in perpetuity (including distributions made for commercial purposes). I hereby waive any right that I may have to inspect or approve any finished product. I acknowledge and agree that I am not being compensated for my appearance and that the opportunity to appear constitutes sufficient consideration. I hereby represent and warrant that I have the right to make this release and that my granting this release and the rights conveyed thereby will not infringe the rights of any third party. 

19 Liability Release and Hold Harmless 

I hereby release and forever discharge and agree to hold harmless Up and any parties working with Up on the staging of any exercise events (including, but not limited to, owners/operators of the venue where such events are taking place and any media distribution entities involved in the promotion or recording thereof), and each of its/their parent, subsidiary, and affiliated companies, and the officers, employees, and agents of each (each such entity or individual, a “Released Party”) of and from any and all losses, damages, claims, liabilities or expenses of any kind or nature (and whether accruing to me, my heirs or my personal representatives) including without limitation for injuries (including personal injury and death), illness, or any other cause, whether or not caused or alleged to be caused in whole or in part by the action, negligence, failure to act or condition of the property, facilities or equipment of any Released Party and that arise out of or in connection with the event or my participation therein or attendance thereat.