Up4Sale.co.nz Terms and Conditions Agreement

Last updated on April 24, 2019

Introduction

Welcome to Up4Sale! By using Up4Sale (including Up4Sale and its related websites, services and tools), you agree to the following terms with Up4Sale (ABN: 80842477372) and the general principles for the websites of our subsidiaries and affiliates. If you have any questions, please refer to our Help Section. This Agreement is effective on April 24, 2019, for current members, and upon acceptance for new members. Before using this website, you must read and agree to these terms and conditions. If you do not agree with any of the provisions you must not accept this agreement.

Scope

By clicking the “I agree” button displayed as part of the Up4Sale Registration process, you agree to the following terms and conditions (the “Agreement”) governing your use of the Up4Sale service (the “Service”). If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to do so, in which case the terms “you” or “your” shall refer to that entity. If you are not so authorised, or if you do not agree with these terms and conditions, you must not click the “Register” button and will be unable to use the Service. Please read the Agreement carefully before using the services. Up4Sale and/or its subsidiaries and affiliates (“Up4Sale”) is willing to license the service to you as the individual, company, or legal entity that will be using the Service only on the condition that you accept all of the terms of this Agreement. This is a legal and enforceable contract between you and Up4Sale. Up4Sale will not refund any fees paid if you later disagree with this Agreement.

Welcome

Up4Sale will provide you with use of the Service, including a browser interface and data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement, including any materials available on the Up4Sale website incorporated by reference herein, including but not limited to Up4Sale’s Privacy Policy. A definitions section is included in this Agreement for your reference.

Questions or Additional Information

If you have questions regarding this Agreement or wish to obtain additional information, please contact us via the contact us page.

Privacy

Up4Sale’s Privacy policy may be viewed under the policies section. Up4Sale reserves the right to modify its Privacy Policy in its reasonable discretion from time to time. Individual members, when they initially register, will be asked whether or not they wish to receive marketing and other non-critical service-related communications from Up4Sale from time to time. They may opt out of receiving such communications at that time or at any subsequent time by changing their preference under My Area. Note that- because the Service is a hosted online service- Up4Sale may occasionally need to notify all members of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service.

Account Information and Data

Up4Sale does not own any data, information or material that you submit to the Service in the course of using the Service (“Customer Data”). You, not Up4Sale, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Up4Sale shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), Up4Sale will make available to you access of the Customer Data within 7 days of termination if you so request at the time of termination. Up4Sale reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Up4Sale shall have no obligation to maintain or forward any Customer Data.

Security of Login Information

During the registration process, you will be required to select a username and a password that are unique to the account (collectively referred to hereunder as “Login Information”). You may not share the account or the Login Information with anyone other than as expressly set forth herein.You are responsible for maintaining the confidentiality of your Login Information, and you will be responsible for all uses of your Login Information, whether or not authorised by you. In the event that you become aware of or reasonably suspect any breach of security, including without limitation any loss, theft, or unauthorised disclosure of your Login Information, you must immediately notify Up4Sale by emailing team at Up4Sale. Up4Sale does not recognise the transfer of Login Information to any other party. You may not purchase, sell, gift or trade any Login Information, or offer to purchase, sell, gift or trade any login information, and any such attempt shall be null and void.

Representations

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Up4Sale represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Up4Sale help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.

Intellectual Property Ownership

Up4Sale alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service or the intellectual property rights owned by Up4Sale. The Up4Sale name, the Up4Sale logos, and the products and services names associated with the Service are trademarks of Up4Sale, Up4Sale, or third parties, and no right or license is granted to use them.

Acknowledgements

You hereby acknowledge and agree that: When running, the Service may monitor your computer’s random access memory (RAM) and/or CPU processes for unauthorised third party programs running concurrently with the Service. An “unauthorised third party program” as used herein shall be defined as any third party software, including without limitation any “addon” or “mod” that in Up4Sale’s sole determination:

  • Allows members to modify or hack the Service interface, environment, and/or experience in any way not expressly authorised by Up4Sale; or
  • Intercepts, “mines”, or otherwise collects information from or through the Service.

In the event that the Service detects an unauthorised third party program, the Service may:

  • Communicate information back to Up4Sale, including without limitation your account name, details about the unauthorised third party program detected, and the time and date the unauthorised third party program was detected; and/or
  • Exercise any or all of its rights under this Agreement, with or without prior notice to the user.

When the Service is running, Up4Sale may obtain certain identification information about your computer and its operating system, including without limitation your hard drives, central processing unit, IP address(es) and operating system(s), for purposes of improving the Service and/or the service, and to police and enforce the provisions of this Agreement. Up4Sale may, with or without notice to you, disclose your Internet Protocol (IP) address(es), personal information, and information about you and your activities in response to a written request by law enforcement, a court order or other legal process. Up4Sale may use or disclose your personal information if Up4Sale believes that doing so may protect your safety or the safety of others. You are the sole responsible for the cost of all telephone and Internet access charges along with all necessary equipment, servicing, repair or correction incurred in maintaining connectivity to Up4Sale’s servers.

Content Updates

Up4Sale may, from time to time, update the software and the services which Up4Sale hosts on its servers and makes available for you to access over an Internet connection. Any and all such updates shall become immediately available to you. The Service requires certain third party software products to be installed on your computer, including an operating system, an Internet browser, and browser plug-ins. Up4Sale sets minimum requirements in regard to these third party software products, and updates to the Service may require you to, independently and at your own expense, source and install updates to any or all of these third party software products. Up4Sale reserves the right to suspend your access to the Service until such third party software products are installed and/or updated.

License

The Service is the exclusive property of Up4Sale, and is protected by copyright law. While Up4Sale continues to own the Service, you will have certain rights to use the Service after your acceptance of this Agreement. This Agreement governs any releases, revisions, or enhancements to the Service that Up4Sale may publish for your use. Up4Sale hereby grants you a non-exclusive, non-transferable, international right to use the Service, solely for commercial purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Up4Sale and its licensors. You shall not:

  • License, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way; or
  • Modify or make derivative works based upon the Service; or
  • Create Internet links to the Service or “frame” or “mirror” any content on any other server or wireless or Internet-based device; or
  • Reverse engineer or access the Service in order to build a competitive product or service, build a product using similar ideas, features, functions or graphics of the Service, or copy any ideas, features, functions or graphics of the Service; or
  • Use the Service in any manner not authorised by this Agreement; or
  • Use the Service in any manner that contradicts any additional restrictions set forth in this Agreement.

Business subscriptions cannot be shared or used by more than one individual user, but may be reassigned from time to time to new members who are replacing former members who have terminated employment or otherwise changed job status or function and no longer use the Service. You may use the Service only for commercial purposes and shall not:

  • Send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
  • Send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortuous material, including material harmful to children or in violation of third party privacy rights;
  • Send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
  • Interfere with or disrupt the integrity or performance of the Service or the data contained therein; or
  • Attempt to gain unauthorised access to the Service or its related systems or networks.

Your Responsibilities

You are responsible for all activity occurring under your member accounts and shall abide by all applicable local, state, provincial, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall:

  • Notify Up4Sale immediately of any unauthorised use of any password or account or any other known or suspected breach of security;
  • Report to Up4Sale immediately and use reasonable efforts to stop immediately any copying or distribution of content that is known or suspected by you or your members; and
  • Not impersonate another Up4Sale member or provide false identity information to gain access to or use the Service.

You agree that you will not:

  • Modify or cause to be modified any files that are a part of the Service; or
  • Use any third-party software that intercepts, “mines”, or otherwise collects information from or through the Service.

Albeit the above, Up4Sale may, at its sole and absolute discretion, allow the use of certain third party user interfaces. You may not disrupt or assist in the disruption of any computer used to support the Service (each a “server”). ANY ATTEMPT BY YOU TO DISRUPT THE SERVICE OR UNDERMINE THE LEGITIMATE OPERATION OF THE SERVICE MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS. You agree that you will not violate any applicable law or regulation in connection with your use of the Service. Up4Sale reserves the exclusive right to create derivative works based on the Service. You may not create derivative works based on the Service without Up4Sale’s prior written consent.

Affiliates Programs

You agree not to promote any affiliates programs, pyramid schemes and commission based plans on Up4Sale Websites (these programs may include any external links to affiliate planes such as, but not limited to: Clickbank, Clicksgalore, Amazon, Barnes and Noble, Linkshare, private affiliate networks and or any other affiliate program). As a seller on Up4Sale, you may not advertise internal or external links to any affiliate program, unless you have a written consent form Up4Sale. In the event that you breach this section, Up4Sale reserves the right to cancel your store membership, your Service membership and forfeit all your fees, without any further delays or notification in advance.

Changes to the Terms of Use Agreement or the Program

Up4Sale reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement at any time, including without limitation access policies, the availability of any feature of the Service, hours of availability, content, data, software or equipment needed to access the Service, effective with or without prior notice; provided, however, that material changes (as determined in Up4Sale’s sole and absolute discretion) will be disclosed as follows: Up4Sale will provide you with notification of any such changes to the Service through email, postal mail, website posting, pop-up screen, or in-service notice. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this agreement, you must terminate, and immediately stop using, the Service and the login information. Your continued use of the Service following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes. Up4Sale may change, modify, suspend, or discontinue any aspect of the Service at any time. Up4Sale may also impose limits on certain features or restrict your access to parts or all of the Service without notice or liability.

Charges and Payment of Fees

You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable.You are responsible for paying for all member subscriptions entered into, whether or not such subscriptions are actively used. Up4Sale reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 7 days prior notice to you, which notice may be provided by email or updated on the website. All pricing terms are confidential, and you agree not to disclose them to any third party.

Store Fees

By using the store subscription you agree to pay all subscription fees, if applicable, owed to Up4Sale in connection with such use as described during the subscription process. Notwithstanding anything to the contrary herein, you acknowledge and agree that Up4Sale may, upon at least 30 days notice to you via email, change your Up4Sale Stores subscription level if you do not meet Up4Sale’s then current applicable subscription requirements. Such change may increase or decrease the fees you pay Up4Sale. You may cancel or downgrade your subscription at anytime, but Stores subscriptions are for a minimum 30-day period, and you will be billed for this period even if your subscription level is cancelled or downgraded within this period; subscription fees for subscription cancelled or downgraded after the first 30-day period will be pro-rated.

Subscription Renewal

Up4Sale charges and collects in advance for use of the Service. Fees for other services will be charged on an as-quoted basis. For subscriptions to Australia-based individuals, businesses and other entities, Up4Sale will add a Goods & Services Tax (GST) (only if applicable) levy to the subscription fee at the current applicable rate. If you choose to open a business account and apply tax to your sales, you are responsible for the payment of all taxes, fees and levies which may apply to your subscription. You agree to provide Up4Sale with complete and accurate billing and contact information. This information includes your legal company or organization name, postal address, email address, and name and telephone number of an authorised billing contact. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Up4Sale reserves the right to terminate your access to the Service in addition to any other legal remedies.

Non-Payment and Suspension

In addition to any other rights granted to Up4Sale herein, Up4Sale reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears).

Disclaimer of Warranties

Up4Sale (and its licensors, websites, tools, and services) makes no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Service. Up4Sale and its licensors do not represent or warrant that:

  • The use of the Service will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data,
  • The Service will meet your requirements or expectations,
  • Any stored data will be accurate or reliable,
  • The quality of any products, services, information, or other material purchased or obtained by you through the Service will meet your requirements or expectations,
  • Errors or defects will be corrected, or The Service or the server(s) that make the Service available are free of viruses or other harmful components.

The Service is provided to you strictly on an “as is” basis. All conditions, representations and warranties, whether implied, express, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights, are hereby disclaimed to the maximum extent permitted by applicable law by Up4Sale and its licencors.

Internet Delays

Up4Sale’s services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Up4Sale is not responsible for any delays, delivery failures, or other damage resulting from such problems.

Equitable Remedies

In the event that you breach this Agreement, you hereby agree that Up4Sale would be irreparably damaged if this Agreement were not specifically enforced, and therefore you agree that Up4Sale shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as Up4Sale may otherwise have available to it under applicable laws. In the event any litigation is brought by either party in connection with this Agreement, the prevailing party in such litigation shall be entitled to recover from the other party all the costs, attorneys fees and other expenses incurred by such prevailing party in the litigation.

Limitation of Liability

Neither Up4Sale nor its parent, subsidiaries, licencors or affiliates shall be liable in any way for damage or loss of any kind resulting from:

  • The use of or inability to use the Service including without limitation loss of goodwill, work stoppage, computer failure or malfunction;
  • The loss or damage to member data stored by the Service; or
  • Interruptions of Service including without limitation ISP disruptions, software or hardware failures or any other event which may result in a loss of data or disruption of service.

In no event will Up4Sale be liable to you or anyone else for any direct, indirect, incidental, special, exemplary or consequential damages.

Force Majeure

Up4Sale shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Up4Sale, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Up4Sale’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labour or materials.

Indemnification

You agree to indemnify and hold harmless Up4Sale, its websites, tools and services and its organisations subsidiaries, licensors, affiliates, officers, directors, shareholders, employees, attorneys and agents from any claim or demand, made by any third party due to or arising directly or indirectly out of your conduct or in connection with your use of the Service, any alleged violation of these terms and conditions, any alleged violation of any applicable law or regulation. Up4Sale reserves the right, at its own expense, to assume the exclusive defences and control of any matter otherwise subject to indemnification by you, but doing so shall not excuse your indemnity obligations.You shall indemnify and hold Up4Sale each such party’s parent harmless from and against any and all costs, claims, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with:

  • A claim alleging that use of the customer data infringes the rights of, or has caused harm to, a third party;
  • A claim, which if true, would constitute a violation by you of your representations and warranties; or
  • A claim arising from the breach by you or your members of this Agreement, provided in any such case that Up4Sale:

    • Gives written notice of the claim without delay to you;
    • Gives you sole control of the defence and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Up4Sale of all liability and such settlement does not affect Up4Sale’s business or service);
    • Provides to you all available information and assistance; and
    • Has not compromised or settled such claim.

Up4Sale shall have no indemnification responsibility, and you shall indemnify Up4Sale pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business processes.

Limitation of Liability

In no event shall either party’s aggregate liability exceed the amounts actually paid by and/or due from you in the twelve (12) month period immediately preceding the event giving rise to such claim. In no event shall either party and/or its licencors be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including loss of data, revenue, profits, use or other economic advantage) arising out of, or in any way connected with the Service, including but not limited to the use or inability to use the Service, or for any content obtained from or through the Service, any interruption, inaccuracy, error or omission, regardless of cause in the content, even if the party from which damages are being sought or such party’s licencors have been previously advised of the possibility of such damages.

Additional Rights

Certain jurisdictions may not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.

Termination

This Agreement commences on the date on which you accept it. The term of Agreement is for one month, and is automatically renewed when monthly subscription fees are paid. Where you take advantage of reduced monthly subscription fees in exchange for a commitment to long-term subscriptions for periods of between three 3 months and 24 months, you may not terminate the agreement before that time. This agreement is effective until terminated. You may terminate this Agreement by terminating your account. In the event that you terminate or breach this Agreement, you will forfeit your right to any and all payments you may have made for pre-purchased access to the Service. You agree and acknowledge that you are not entitled to any refund for any amounts which were pre-paid on behalf of the account prior to any termination of this Agreement. Up4Sale may terminate this Agreement with or without notice by terminating your account.

Up4Sale MAY SUSPEND, TERMINATE, MODIFY, OR DELETE THE ACCOUNT AT ANY TIME WITH ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE. For purposes of explanation and not limitation, most account suspensions, terminations and/or deletions are the result of violations of these terms and conditions. Where Up4Sale terminates the agreement for any reason, you will be liable for all outstanding subscription fees for the term of the commitment at Up4Sale’s then-current rates. These will be charged in a lump sum at termination. Either party may terminate this Agreement, effective only upon the expiration of the then current Agreement, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following term. In the case of free trials, notifications provided through email and the Service indicating the remaining number of days in the free trial shall constitute notice of termination. In the event this Agreement is terminated (other than by reason of your breach), Up4Sale will make available to you access of the Customer Data within 7 days of termination if you so request at the time of termination. You agree and acknowledge that Up4Sale has no obligation to retain the customer data, and may delete such customer data, more than 7 days after termination.

Termination for Cause

Any breach of your payment obligations or unauthorised use of the Service will be deemed a material breach of this Agreement. Up4Sale, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, Up4Sale may terminate a free account at any time in its sole discretion. You agree and acknowledge that Up4Sale has no obligation to retain the customer data, and may delete such customer data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.

Notice

Up4Sale may give notice by means of a general notice on the website, electronic mail to your email address on record in Up4Sale’s account information, or by written communication sent to your address on record in Up4Sale’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting, or 12 hours after sending if sent by email. You may give notice to Up4Sale (such notice shall be deemed given when received by Up4Sale) at any time by email sent to Up4Sale at team at Up4Sale.

Local Laws and Export Control

Up4Sale and its licencors make no representation that the Service is appropriate or available for use in all locations. If you use the Service from outside Australia, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Service contrary to Australia law is prohibited. None of the content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons or missile projects, unless specifically authorised by the Australia government or other appropriate body for such purposes. The Service may use encryption technology that is subject to licensing requirements under the US Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) Nº 1334/2000.

General

This Agreement shall be governed by Australia law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the Court Services Victoria, Australia. No text or information set forth on any other purchase order, pre-printed form or document shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Up4Sale as a result of this Agreement or use of the Service. The failure of Up4Sale to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Up4Sale in writing. This Agreement comprises the entire agreement between you and Up4Sale, and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

Dispute Resolution and Governing Law

Informal Negotiations

If a dispute arises between you and Up4Sale, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement (“dispute”), you and Up4Sale agree to first attempt to negotiate any dispute (except those disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation. Such informal negotiations commence upon written notice from one person to the other. Up4Sale will send its notice to your billing address and email you a copy to the email address you have provided to us. You will send your notice to team at Up4Sale.

Binding Arbitration

If you and Up4Sale are unable to resolve a dispute through informal negotiations, either you or Up4Sale may elect to have the dispute (except those disputes expressly excluded below) finally and exclusively resolved by binding arbitration, mutually agreed upon by the parties. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. Subject to approval by the arbitrator, the arbitration may be conducted in person, through the submission of documents, by phone and/or online and/or be solely based on written submissions. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and Up4Sale may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

Improperly Filed Claims

All claims you bring against Up4Sale must be resolved in accordance with this Resolution of Disputes Section. All claims filed or brought contrary to the Resolution of Disputes Section shall be considered improperly filed. Should you file a claim contrary to the Resolution of Disputes Section, Up4Sale may recover attorneys’ fees and costs up to $10,000, provided that Up4Sale has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim. Claims you bring against Up4Sale must be resolved in accordance with this Resolution of Disputes Section. All claims filed or brought contrary to the Resolution of Disputes Section shall be considered improperly filed. Should you file a claim contrary to the Resolution of Disputes Section, Up4Sale may recover attorneys’ fees and costs up to $10,000, provided that Up4Sale has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.

Restrictions

You and Up4Sale agree that any arbitration shall be limited to the dispute between Up4Sale and you individually. To the full extent permitted by law:

  • No arbitration shall be joined with any other;
  • There is no right or authority for any dispute to be arbitrated on a class-action basis or to utilise class action procedures; and
  • There is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.

Exceptions to Informal Negotiations and Arbitration

You and Up4Sale agree that the following disputes are not subject to the above provisions concerning informal negotiations and binding arbitration:

  • Any disputes seeking to enforce or protect, or concerning the validity of, any of your or Up4Sale’s intellectual property rights;
  • Any dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorised use; and
  • Any claim for injunctive relief.

Location

If you are a resident of Australia, any arbitration will take place at any reasonable location within Court Services Victoria, Australia. For residents outside Australia, any arbitration shall be initiated in the Court Services Victoria, Australia. Any dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, shall be decided by a court of competent jurisdiction within Australia, and you and Up4Sale agree to submit to the personal jurisdiction of that court.

Governing Law

Except as expressly provided otherwise, this Agreement shall be is governed by, and will be construed under, the laws of Australia, without regard to choice of law principles. The Service of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. For our customers who access the Service from outside Australia, other laws may apply if you choose not to agree to arbitrate as set forth above, and in such an event, shall affect this Agreement only to the extent required by such jurisdiction. In such a case, this Agreement shall be interpreted to give maximum effect to the terms and conditions hereof. If you access the Service from Australia, and are a resident of Australia, the Australia Consumer Guarantees Act of 1993 (“Act”) may apply to the Service as supplied by Up4Sale to you. If the Act applies, then notwithstanding any other provision in this Agreement, you may have rights or remedies as set out in the Act which may apply in addition to, or, to the extent that they are inconsistent, instead of, the rights or remedies set out in this Agreement. Those who choose to access the Service from any other location do so on their own initiative contrary to the terms of this Agreement, and are responsible for compliance with local laws if and to the extent local laws are applicable.

Severability

You and Up4Sale agree that if any portion of this Agreement is found illegal or unenforceable, that portion shall be severed and the remainder of the agreement shall be given full force and effect. If any portion of this Agreement is found to be illegal or unenforceable then neither you nor Up4Sale will elect to arbitrate any dispute falling within that portion of the agreement found to be illegal or unenforceable and such dispute shall be decided by a court of competent jurisdiction within Australia, and you and Up4Sale agree to submit to the personal jurisdiction of that court.

No Agency

No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement.

Notices

Except as explicitly stated otherwise, legal notices shall be served on Up4Sale’s national registered agent (in the case of Up4Sale) or to the email address you provide to Up4Sale during the registration process (in your case). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. We may give you legal notice by mail to the address provided during the registration process. In such case, notice shall be deemed given three days after the date of mailing.

Miscellaneous

If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This agreement is the complete and exclusive statement of the agreement between you and Up4Sale concerning the Service, and this Agreement supersedes any prior or contemporaneous agreement, either oral or written, and any other communications with regard thereto between you and Up4Sale; provided, however that this Agreement is in addition to, and does not replace or supplant, the EULA. This agreement may only be modified as set forth herein. The section headings used herein are for reference only and shall not be read to have any legal effect.

I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE FOREGOING TERMS OF USE AGREEMENT AND AGREE THAT MY USE OF THE SERVICE IS AN ACKNOWLEDGEMENT OF MY AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ABOVE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.

Definitions

As used in this Agreement and on any web pages now or hereafter associated herewith:

  • “Agreement” means these online terms of use and any materials available on the Up4Sale website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by Up4Sale from time to time in its sole discretion.
  • “Content” means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service.
  • “Customer Data” means any data, information or material provided or submitted by you to the Service in the course of using the Service.
  • “Effective Date” means the earlier of either the date this Agreement is accepted by selecting the “I Accept” option presented on the screen after this Agreement is displayed or the date you begin using the Service.
  • “Initial Term” means the initial period during which you are obligated to pay for the Service equal to the billing frequency selected by you during the subscription process (e.g. if the billing frequency is quarterly, the Initial Term is the first quarter).
  • “Intellectual Property Rights” means unpatented inventions, patent Services, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
  • “License Administrator(s)” means those Members designated by you who are authorised to purchase licenses or services online using the Online Order or by executing written Order Forms and to create Member accounts and otherwise administer your use of the Service.
  • “License Term(s)” means the period(s) during which a specified number of Members are licensed to use the Service pursuant to the Order Form(s).
  • “Order Form(s)” means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail).
  • “Up4Sale” and “Up4Sale” mean collectively the website Up4Sale (www.Up4Sale) and Up4Sale, an Australian business under ABN: 80842477372, having its principal place of business at Victoria, Australia.
  • “Up4Sale Technology” means all of Up4Sale’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Up4Sale in providing the Service.
  • “Service” means the specific Up4Sale Limited service and website(s), accessible via www.Up4Sale or another designated website or IP address, or ancillary online or offline products and services provided to you by Up4Sale , to which you are being granted access under this Agreement, including the Up4Sale technology and the content.
  • “User(s)” means you or your employees, representatives, consultants, contractors or agents who are authorised to use the Service and have been supplied member identifications and passwords by you (or by Up4Sale at your request).

Additional Terms and Conditions

The following updated policies, including all policies referenced in them, are part of this Agreement and provide additional terms and conditions related to the above terms and the conditions. Our policies may be changed from time to time and changes take effect when we post them on the Up4Sale website. When using particular services on our websites, you are subject to any posted policies or rules applicable to services you use through the website. All such policies or rules are hereby incorporated into this Terms and Conditions Agreement.

Using Up4Sale

While using Up4Sale website, services and tools, you will not:

  • Use Up4Sale, services and tools if you are not able to form legally binding contracts, are under the age of 18, or are temporarily or indefinitely suspended from using our website, services and tools.
  • Post content or items in inappropriate categories or other areas on Up4Sale website and services.
  • Violate any laws, third party rights or our policies, such as the prohibited and restricted items policies.
  • Fail to pay for items purchased by you, unless a clear typographical error is made, the seller has materially changed the item’s description after your bid, or you can’t authenticate the seller’s identity.
  • Fail to deliver items purchased from you, unless the buyer fails to meet the posted terms, or you cannot authenticate the buyer’s identity.
  • Manipulate the price of any item or interfere with other members’s listings, stores, or activity.
  • Post misleading, inaccurate, false, or defamatory content, including your personal information.
  • Manipulate or circumvent our fee structure and billing, or the fees owed to Up4Sale.
  • Act in a way that may undermine our Feedback system (i.e. displaying, importing or exporting Feedback information off of Up4Sale).
  • Transfer your Up4Sale account, Feedback, or Username to another party without our consent.
  • Gather or collect information about members, including email addresses, without their consent.
  • Abusing Up4Sale.
  • Post or distribute unsolicited emails, spam, or bulk communications, chain letters, or any other schemes such as pyramid schemes.
  • Distribute viruses or any other technologies that may harm Up4Sale, the interests, and the property of Up4Sale members.
  • Copy, distribute, or modify content or rights from the Up4Sale websites, service and tools or Up4Sale’s copyrights and trademarks.

Up4Sale work to keep our websites and services working properly and the community safe. Please report offensive content, problems, and policies violations to team at Up4Sale.

Up4Sale works to ensure that listed items do not infringe upon the copyright, trademark, or other intellectual property rights of third parties. If you believe that your intellectual property rights have been violated, please contact us at team at Up4Sale.

Up4Sale may limit (without limiting other remedies), terminate, discontinue or suspend our service and member accounts, delay or remove content, prohibit access to our website, services, and tools, and take technical and legal actions to keep members off our system if we think that they are creating problems or possible legal liabilities, infringing the intellectual property rights of third parties, or acting inconsistently with our policies. We also may cancel unconfirmed accounts or accounts that have been inactive for a long period.

Up4Sale Fees and Services

Joining Up4Sale and bidding on listed items is free. However, we charge fees for using other services, such as listing items or subscribing to the store services. When you list an item or use a service that has a fee, we give you the opportunity to review and accept the fees that you will be charged based on our fees programme. Our fees may change from time to time and they are effective after we provide you with at least 7 days notice by posting the changes on Up4Sale. Up4Sale may choose to temporarily change the fees for our services for promotional events or new services, and such changes are effective when we post the temporary promotional event or new service on Up4Sale.

Unless otherwise stated, all fees are quoted in Australia Dollars. You are responsible for paying all fees and applicable taxes associated with our Up4Sale and services in a timely manner with a valid payment method. If your payment method fails or your account is past due, we may collect fees owed using other collection methods, including, but not limited to charging other payment methods recorded with us, maintaining collection agencies and legal counselling.

Content

When you use Up4Sale, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub licensable (through multiple tiers) right to exercise any and all copyright, trademark, publicity, and database rights you have in the content that you gave us, in any media now or in the future.

Limitation of Liability

You will not hold Up4Sale responsible for other members’ content, actions, or inactions, items they list or their destruction of apparently fake items. You must acknowledge that we are not a traditional auctioneer but we merely provide a venue to allow anyone to offer, sell, and buy almost anything, at anytime, from anywhere, in a variety of pricing formats and locations, such as Stores, fixed price formats, and auction-style formats. We are not involved in the actual transaction between buyers and sellers. While we may help facilitate the resolution of disputes through a range of programmes, we have no control over and do not guarantee the safety, quality, or legality of items advertised on Up4Sale, the genuineness or accuracy of members’ content and listings, the ability and legality of sellers to sell items, the ability of buyers to pay for items, or that a buyer or seller will actually complete a transaction or return an item. In some categories, a bid or offer initiates a non-binding transaction representing a buyer’s serious expression of interest in buying the seller’s item.

Please note that we do not transfer legal ownership of items from the seller to the buyer, and nothing in this agreement shall modify the governing provisions of Australia laws and regulations (unless the buyer and the seller agree otherwise). We also can’t guarantee secure or uninterrupted access to our website, services and tools, and operation of our platforms can be interfered with by reasons outside of our control. For that reason we exclude all implied guarantees, terms and conditions. We are not liable for any loss of money, goodwill or reputation, or any unique, indirect or resulting damages arising, directly or indirectly, out of your use of or your failure to use our websites, services and tools.

However, if we are found to be liable, our liability to you or to any third party is limited to the greater of the total fees (under Up4Sale Fees and Services programme) you have paid us in the month prior to the action giving rise to the liability, and 101 AUD.

Release

If you have a dispute with one or more members, you free us (and our directors, officers, agents, subsidiaries, employees, joint ventures, and licensors) from demands, claims, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.

Access and Interference

Much of the information on the Up4Sale is updated on a live basis and is proprietary or is licensed to Up4Sale. You agree not to use any robot, scraper, spider, or other automated technology to access Up4Sale for any purpose without our express handwritten permission.

Moreover, you agree not to take any action that may require (in our sole good judgement) an unreasonable or excessively large load on our infrastructure or systems, as well as not to copy, modify, duplicate, create derived works, distribute, or openly display any content (except for your information) from the Up4Sale without the prior express written consent of Up4Sale and the appropriate third party, as applicable. You also agree not to attempt to obstruct with the proper working of the Up4Sale websites, services and tools, or any activities carried out on or with the Up4Sale websites or bypass any measures we may use to prevent or restrict access to our website.

Privacy

Up4Sale will not sell (or rent) your personal information to third parties without your explicit consent. Up4Sale view protection of members’ privacy as a very important community principle and use your information only as described in the Up4Sale Privacy Policy. All our members’ information stored on computers located in Asia Pacific and/or USA. These computers are protected by physical and technological security devices and we use third party companies to verify and certify our privacy principles. You can modify the information you provide us and choose not to receive certain communications from your member’s area. If you object to your information being transferred or used in this way please do not use Up4Sale services.