Effective as of November 14, 2023
INTRODUCTION
Welcome! These Terms of Service (“Terms”) govern the use of www.UpNow.com, www.EverCalmMenopause.com (each a “Website”), and their related mobile applications (each an “App”), which allow you to purchase audios and other content; collectively, the “Services” owned and operated by UpNow Health Limited (“we,” “us,” or “our”).
The Terms govern the use of the Services by any person for any reason (“you”, “your”). The Terms, together with our Privacy Policy, form a binding legal agreement between you and us. Please read the Terms carefully because they affect your rights and obligations under the law. By using or accessing any Service for any reason, you consent to the Terms. If you do not agree with the Terms, you may not use the Services.
1. YOUR ACCOUNT
1.1. To use and access the Services, you may be required to register an Account (“Account”).
1.2. To register an Account, you are required to provide some personal information. You agree to provide and keep updated, accurate and complete information. The use and processing of your Personal Information is subject to our Privacy Policy.
1.3. By creating an Account, you represent that you have the legal capacity to enter into contracts or have obtained proper consent from your parent or legal guardian. If you are creating an Account on behalf of a legal entity, you represent that you are authorized by the legal entity to enter into these Terms. We are not responsible nor liable for any use of the Services by persons who violate this subclause.
1.4. You are entirely responsible for the security and confidentiality of your Account name, password, and other credentials. You will not transfer your Account to any person or share it with any third-party. You are entirely responsible for any and all activities that occur under your Account, whether or not you allow it. You agree to immediately notify us of any unauthorized use of your Account or any other breach of security of which you become aware.
2. APP DISTRIBUTORS
2.1. The Terms form an agreement between you and us; and not with App Store (Apple Inc.) or Google Play (Google Inc.), (each an “App Distributor”). We, not the App Distributor, are solely responsible for any warranties pertaining to the App, whether expressed or implied by law, to the extent not otherwise effectively disclaimed under the Terms.
2.2. Limited Licence. When you download the Apps from an App Distributor, you are granted a limited, non-transferable licence to use the Apps on a device that utilises the App Distributor’s operating system, as applicable, and in accordance with the usage rules set forth in the applicable App Distributor’s terms of service.
2.3. Third-Party Beneficiary. You and we acknowledge and agree that the App Distributors, and their subsidiaries, are third-party beneficiaries of the Terms, and that, upon your acceptance of the Terms, each App Distributor will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as a third-party beneficiary thereof.
2.4. Indemnification. Notwithstanding the above, and for the avoidance of doubt, you agree to release and indemnify us from any claims that you or any other person might otherwise have (including any claims arising under consumer protection or similar legislation in respect of the App and any other claims, losses, liabilities, damages, or expenses) which relate to your acts or omissions. You, not us, will be solely responsible for the claims, losses, liabilities, damages, or expenses you have caused or contributed.
3. SERVICE FEES
3.1. You may be required to pay fees to use the Services at the amounts published on the Apps or by App Distributors. By using any paid Service, you agree to pay for the subsisting fee at the time of your purchase.
3.2. We may change any fee for any Service at any time at our sole discretion. By your continued use of the Service after the change in fee, you agree to such changes.
3.3. Limited Subscription. We may offer a limited subscription which allows you to use only some Services starting the first download of the Service until 7 days thereafter (“Limited Subscription”). Upon the expiration of the Limited Subscription, your access to the Services may be suspended until you purchase the Paid Subscription as described below.
3.4. Paid Subscription. You may purchase a paid subscription to the Services by paying in advance a subscription fee on a monthly basis, yearly basis, or some other recurring interval disclosed to you prior to your purchase (“Paid Subscription”).
3.5. Automatic Renewal. Your Paid Subscription will automatically renew at the end of the subscription period, unless you cancel your subscription before the end of the then-current Paid Subscription period. The cancellation will take effect the day after the last day of the current Paid Subscription period.
3.6. Subscription Period. Your subscription will remain active during the subscription period. There will be no refunds subscription fees already paid to us or credits for partial use, non-use, cancellation, or downgrade of the subscription during the subscription period, except cases in accordance with applicable consumer protection laws.
3.7. Payment Methods. We or the App Distributor may use third-party payment processor or provider (each a “Payment Method”). In connection with your payment for the fees, you agree to share your payment information with the Payment Method to enable it to facilitate your payment. Any processing of your payment information that you share with the Payment Method will be governed by the Payment Method’s privacy policy.
3.8. You also acknowledge and agree that the Payment Method may impose its own processing fees to facilitate your payment. You agree to pay for any such applicable processing fee. For more information about processing fees, please check the website of the App Distributor.
3.9. You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us or the App Distributors regarding future functionality or features of the Services.
3.10. If you are a consumer as described by your national consumer protection laws, in case of conflict between the Terms and your national consumer protection laws, your national consumer protection laws shall prevail with minimal guarantees, unless the applicable laws prohibit such limitation.
3.11. You are solely responsible for all costs and expenses you may incur from using the Services. Some Services require a reliable internet connection. We do not provide refunds for failure or partial use of the Services due to technical failures, power outages or unreliable internet connections beyond our control.
4. OUR CONTENT
4.1. “Content” is any information displayed or available on the Services, including but not limited to, text, data, code, images, photographs, graphics, audios, videos, software, designs, logos, and any other materials.
4.2. We and/or our licensors own any and all Content on the Services. Our Content is protected by copyright law, registered and unregistered trademarks, database rights, and other intellectual property rights. We and/or our licensors will retain any and all intellectual property and all related rights to the Content. Your use of the Services does not grant or transfer to you any rights to the Content.
4.3. You are authorized to view, play, print and download the Content for personal, informational, and non-commercial purposes only. You will not remove or change any copyright, trademark, or other proprietary notices from the Content.
4.4. You may not copy, display, perform, reproduce, license, publish, transmit, modify, reverse engineer, transfer, or create derivative works from, or sell any and all Content.
5. TRADEMARKS/NO ENDORSEMENT
5.1. All trademarks, service marks and trade names used in the Services (collectively “Marks”) are ours or of our affiliates, partners, vendors or licensors’ trademarks or registered trademarks.
5.2. You may not use, copy, reproduce, republish, upload, post, transmit, distribute, or modify the Marks in any way, including in advertising or publicity pertaining to the distribution of materials on the Services, without our prior written consent.
6. ALLOWABLE USE
6.1. Subject to your strict compliance with the Terms, we grant you a limited, personal, non-exclusive, revocable, non-assignable, and non-transferable right and license to use the Services.
6.2. You agree to use the Services for the purposes that they are intended.
6.3. You agree to use the Services for lawful purposes only.
6.4. You agree that you will not violate any laws when using the Services. This includes any and all local, provincial, state, federal, national, and international laws.
6.5. You agree not to “crawl,” “scrape,” or “spider” the Services or to reverse engineer or attempt to obtain our source code or data.
6.6. You agree not to distribute any virus or other harmful computer code through the Services, including viruses, Trojan horses, spyware, adware, malware, bots, time bombs, worms, or other harmful or malicious components, which or might overburden, impair or disrupt the Services or servers or networks forming part of, or connected to, the Services, or which does or might restrict or inhibit any other user’s use and enjoyment of the Services.
6.7. We reserve the right but do not assume any obligation, to monitor your online conduct to enforce the Terms.
6.8. For more information on how to use the Services, please see the guidelines and answers in the Website’s FAQ section.
7. SECURITY
7.1. We implement security measures to help protect the Services from security threats. However, no system is 100% secured and no security system is impenetrable. We cannot guarantee that our security measures will be error-free, that Services will always be secure, or that unauthorized third parties will never be able to defeat our security measures or those of our third-party service providers.
7.2. You understand that any content that you provide on the Services (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to the technical requirements of connecting networks or devices.
8. YOUR USER CONTENT
8.1. You may provide feedback, comments, and suggestions on the Services (“User Content”).
8.2. By posting, uploading, inputting, providing, or submitting User Content, you warrant and represent that you own or have been granted all of the rights necessary to provide the User Content.
8.3. By posting, uploading, inputting, providing, or submitting User Content, you are granting us the right to use the User Content in connection with the operation of our business and Services, including, but not limited to, the rights to transmit, publicly display, distribute, publicly perform, copy, reproduce, and translate User Content; and to publish your name and location in connection with the User Content. No compensation shall be paid with regard to the use of User Content. We shall have no obligation to publish or use any User Content and may remove User Content at any time.
9. THIRD-PARTY SERVICES
9.1. The Services may contain links to third-party sites, apps, and platforms that are not affiliated with or owned, operated, or controlled by us (“Third-Party Services”). We make these links available to you for convenience and for providing the functionalities or features of the Services. You acknowledge and agree that we do not control and we are not responsible for the content, privacy policies, or practices of such Third-Party Services. You expressly relieve us from any and all liability arising from your access and use of any Third-Party Service.
10. COMMUNICATIONS
10.1. By creating an Account, you automatically opt-in to receive email communications regarding the Services. You can unsubscribe from receiving promotional emails. However, you cannot opt-out of transactional emails such as order confirmations, invoices, and specific communications about the Services.
10.2. We reserve the right to send you an electronic mail for the purpose of informing you of changes or additions to the Services or the Terms.
10.3. Except as disclosed in our Privacy Policy, we will not monitor, edit, or disclose the contents of your communications with us, unless required in the course of normal maintenance of the Services, or unless required to do so by law or in the good-faith belief that such action is necessary to: (a) comply with the law or a legal process served on us; (b) protect and defend our rights or property or of the users of the Services; or (c) act in an emergency to protect the personal safety of our guests, ours, or the public.
11. INFORMATION ON THE SERVICES
11.1. We are constantly updating the Services. We make every attempt to ensure that the information in the Services is accurate and complete. Unfortunately, it is not possible to ensure that any site is completely free of human or technological errors. The Services may be mispriced, described inaccurately, or unavailable. We may experience delays in updating information on the Services and in our advertising on other sites. We cannot and do not guarantee the accuracy or completeness of any information, including the fees, descriptions, specifications, and availability. We reserve the right to correct any errors and inaccuracies or omissions, including after payment has been made.
11.2. Through your use of the Services, you may be exposed to content that you may find offensive, objectionable, harmful, inaccurate, or deceptive. By using the Services, you assume all associated risks.
12. NO WARRANTIES
12.1. We make no representations about the availability, accuracy, reliability, suitability, and timeliness of the Content contained on and available on the Services. We do not guarantee, represent, or warrant that your use of the Services will be uninterrupted, timely, secure, or error-free. To the maximum extent allowed by the applicable law, all such Content and Services are provided on the “as is” basis. We disclaim all warranties and conditions regarding the Content and Services, including warranties and provisions of merchantability, fitness for a certain purpose. You expressly agree that your use of, or inability to use, the Services is at your sole risk.
13. DISCLAIMERS
13.1. Medical Disclaimer. THE SERVICES DO NOT PROVIDE MEDICAL ADVICE. The contents of the Services are for informational purposes only. The Services are not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on the Services. We do not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Services. Reliance on any information provided by the Services is solely at your own risk.
13.2. Results Disclaimer. From time to time, we may report on the success of one of our existing or prior users. The information about this success is accurately portrayed by the user. You acknowledge that the prior success of others does not guarantee your success. You acknowledge you are using the Services voluntarily and that any choices, actions, and results now and in the future are solely your responsibility. We (and our affiliates, suppliers, partners, and agents) make no warranty that you will obtain specific results from the use of the Services. We will not be liable to you or any other party for any decision made, or action taken in reliance on the information in the Services. Your results may vary and will be based on your individual capacity, experience, expertise, and dedication. There are no guarantees concerning your level of success.
14. LIMITATION OF LIABILITY
14.1. You understand that there are certain inherent risks and dangers in using the Services. You fully accept these risks, and you agree that you will have no recourse to seek damages against us even if you suffer loss or damage from using the Services.
14.2. To the maximum extent permitted by the applicable laws, in no event shall we be liable for any direct, indirect, incidental, consequential, special, punitive damages including, but not limited to, damages for loss of enjoyment, data or profits, in the connection with the enjoyment or execution of the Services in the context of the inability or delay to enjoy the Services or any Content, or otherwise arising out of the enjoyment of the Services, based on contract and non-contract liability or other reason.
14.3. You agree that any claim you may have against us, including our past and present employees and agents, shall be brought individually, and you shall not join such claim with claims of any other person or entity or bring, join or participate in a class action against us.
14.4. If the exclusion or limitation of liability for damages, whether consequential or incidental, are prohibited in a particular case by applicable laws, the exclusion or limitation of liability shall not apply.
15. INDEMNIFICATION
15.1. You agree to indemnify, defend (if we so request), and hold harmless us, our group companies, and our officers, directors, suppliers, partners, and agents against any third-party claims, demands, losses, damages, or expenses (including reasonable attorney’s fees) arising from (a) the content you post or submit, (b) your use of the Services (c) your violation of the Terms, or (d) your violation of any rights of a third party. We reserve the right to assume the exclusive defence and you shall cooperate with us in asserting any available defences. Your indemnification obligation will survive the termination of the Terms and your use of the Services.
16. PRIVACY POLICY
16.1. By using and/or accessing the Services, you acknowledge that you have read and agree to our Privacy Policy, and you consent to our processing of your Personal Data for the purposes set out in the Privacy Policy.
17. FORCE MAJEURE
17.1. We shall not be responsible for damages or for delays or failures in performance resulting from acts or occurrences beyond our reasonable control, including, without limitation: fire, lightning, explosion, power surge or failure, water, acts of God, war, revolution, civil commotion or acts of civil or military authorities or public enemies; epidemics, pandemics; any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body; or labour unrest, including without limitation, strikes, slowdowns, picketing, or boycotts; inability to secure raw materials, transportation facilities, fuel or energy shortages, or acts or omissions of other common carriers.
18. REVISIONS TO THE TERMS OF SERVICE
18.1. We reserve the right to update, change or replace any part of the Terms by posting updates and/or changes in the Services. It is your responsibility to check this page periodically for changes. You can review the most current version of the Terms at any time on this page. Your continued use of or access to the Services following the posting of any changes constitutes acceptance of those changes.
19. CHANGES TO THE SERVICES
19.1. We may change, update, alter, suspend, or discontinue the Services or its contents, in whole or in part, at any time and for any reason, including in case of the insolvency of the Company, without notice or cost.
19.2. We shall not be liable to you or to any third party for any modification, price change, suspension, or discontinuance of the Services.
19.3. We may also, in the future, offer new services and/or features through the Services (including, the release of new tools and resources). Such new features and/or services shall also be subject to the Terms.
20. ACCESS RESTRICTION AND TERMINATION
20.1. We may terminate the Services for any or no reason during any free use of the Services.
20.2. We may also limit or block your access to the Services in the event that:
20.2.1. you breach any of the Terms; or
20.2.2. we believe that your actions may cause financial loss or legal liability for you, our users or us.
20.3. You may terminate your Account or your use of the Services at any time. If you terminate, you shall be liable to pay all fees and charges that have accrued until the termination takes place.
21. AGE RESTRICTIONS
21.1. We do not knowingly provide any Services to children. By using the Services, you represent and warrant to us that: (a) you are 18 years of age or older; or (b) you are otherwise legally capacitated to enter into contracts under the laws that apply to you.
22. DISPUTE RESOLUTION
22.1. In case of controversies, demands, claims, disputes, or causes of action between you and us relating to the Services or other related issues, or the Terms, you and we agree to attempt to resolve such controversies, demands, claims, disputes, or causes of action by good faith negotiation.
23. GENERAL
23.1. Entire Agreement. The Terms set out the entire agreement and understanding between you and us with respect to its subject matter, and supersede all prior or communications and offers, whether electronic, oral or written, between you and us.
23.2. Severability. If any part of these Terms is held to be invalid or unenforceable, the invalid or unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
23.3. Assignment. This Agreement is personal to you. You cannot assign your rights and interests in the Terms without our written consent. You agree that we may automatically assign our rights and interests in the Terms at our sole discretion.
23.4. No Waiver. Our failure to act with respect to your or others’ breach does not waive our right to act with respect to subsequent or similar breaches. The waiver of any such right or provision will be effective only if in writing and signed by our duly authorized representative.
23.5. Relationship. No joint venture, partnership, employment, or agency relationship shall be implied between you and us as a result of the Terms or use of the Services.
23.6. Remedies. Except as expressly set forth in the Terms, the exercise by either party of any of its remedies under the Terms will be without prejudice to its other remedies under the Terms or otherwise.
23.7. Survival. Any provisions of the Terms that impose continuing obligations on the parties, including, without limitation, OUR CONTENT, NO WARRANTIES, DISCLAIMERS, LIMITATION OF LIABILITY, INDEMNIFICATION, DISPUTE RESOLUTION, and SERVICE FEES shall survive any termination or expiration of the Terms.
23.8. Jurisdiction and Choice of Law. The laws of Hong Kong govern the Terms, without regard to conflict of law provisions. The courts of Hong Kong have exclusive jurisdiction to settle any dispute arising out of or in connection with the use of the Services and the Terms.
24. CONTACT US
24.1. If you have any questions, comments, or suggestions, please contact us through or privacy@upnow.com.
PREVIOUS VERSIONS
22 May 2018 – 28 Jun 2019
29 Jun 2019 – 13 Nov 2023
