Last Modified: October 4, 2019
The Site Liveuptop.com (the “Site”) is an online information platform for apartment searchers, prospective tenants, and renters on the one hand (“Renters”), and owners, landlords, and property managers on the other (“Landlord,” “Manager” and together with Renters, our “Users” or “Customers.”) Through the Site Renters can search for and review rental property real estate listings in our designated service areas provided by Landlords, and then use UpTop’s platform to enter into a leasing arrangement with the landlord, communicate privately or within User determined groups with landlords, complete online applications and undertake credit and background screening requirements set forth by landlords, electronically execute lease agreements, submit maintenance requests, execute lease renewals, and set up a seamless ongoing payment plan for rent and other ancillary payments.
THIS AGREEMENT GOVERNS YOUR RIGHTS AND RESPONSIBILITIES RELATING TO ACCESS AND USE OF THE SERVICE MADE AVAILABLE BY UpTop.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION CLAUSE, A WAIVER OF JURY TRIAL AND A WAIVER OF CLASS ACTION TYPE RELIEF.
BY SETTING UP AN ACCOUNT OR USING THE UpTop SITE INCLUDING ANY RELATED MOBILE APPS, YOU INDICATE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT INCLUDING THE PROVISIONS RELATED TO COLLECTION, STORAGE, USE AND PROTECTION OF PERSONAL INFORMATION THAT YOU SUPPLY TO US. YOU MUST READ AND AGREE TO THE TERMS OF THIS AGREEMENT BEFORE YOU MAY ACCESS AND USE THE SERVICE. IF YOU DO NOT AGREE WITH ANY OF THE TERMS BELOW, YOU MAY NOT USE THE SERVICE.
IF YOU ARE ENTERING INTO THIS AGREEMENT AS A REPRESENTATIVE OF A LANDLORD OR MANAGER, YOUR ACCEPTANCE IN ANY OF THE FORMS MENTIONED ABOVE REPRESENTS THAT YOU HAVE READ AND AGREE TO THE TERMS OF THIS AGREEMENT RELATING TO YOUR OWN ACCESS AND ALSO HAVE THE AUTHORITY TO BIND SUCH LANDLORD (AND/OR MANAGEMENT COMPANY) TO THIS AGREEMENT INCLUDING ALL OF THE TERMS AND CONDITIONS HEREIN, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL ALSO REFER TO SUCH LANDLORD (AND/OR MANAGEMENT COMPANY) FOR WHICH YOU ARE A REPRESENTATIVE. IF YOU DO NOT AGREE WITH ANY OF THE TERMS BELOW OR DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS AGREEMENT ON BEHALF OF A LANDLORD (AND/OR MANAGEMENT COMPANY) AND MAY NOT USE THE SERVICES.
NOTWITHSTANDING THE FOREGOING, YOU MAY NOT ACCESS THE SERVICE IF YOU ARE A COMPETITOR OF UpTop OR FOR ANY MONITORING, BENCHMARKING OR COMPETITIVE PURPOSES.
We suggest that you print out a copy of these Terms for your records. Unless expressly stated, the Terms apply to both Renters and Landlords, without exception.
You acknowledge, understand and agree that UpTop reserves the right at any time to charge fees for services provided. UpTop currently charges Renters convenience fees related to rent payments and screening services. Users will not be charged for access to or use of the Site, including without limitation making credit card, bank to bank payments or ordering screening reports unless the user grants express consent and authorization. You understand and agree that once consent is provided for services, you will be obligated to pay and shall pay any and all such charges associated with the services.
Nature of UpTop Services. UpTop operates a platform for Landlords desiring to advertise residential rental properties with available units to Renters. All listings are based on information provided by the Landlords. Accordingly, UpTop is not responsible in any way for the content in any such advertisements, nor is UpTop responsible for any actual lease transaction between a potential Renter and a property. UpTop does not render legal, brokerage, or other professional advice or services to any of its customers (Renters or Landlords).
UpTop does not broker, lease, or sublease apartments directly and is not a party to any transaction between Landlords or Managers and Renters. Given UpTop’s role, UpTop does not (a) guarantee or ensure any apartment or any transaction between a renter and landlord, or (b) broker, lease, or sublease or offer to broker, lease or sublease, or own any apartments. By using the Site, you acknowledge that published rents and availabilities are subject to change at the sole discretion of the property owner or manager at any time and without further notice.
UpTop’S RIGHTS AND UpTop’S ROLE
Without limiting the generality of the foregoing, you acknowledge and agree as follows:
UpTop Content. All applications, software, design, text, audio, video, photos, pictures, graphics, music, sound clips, images, likenesses, and other works of authorship other than User Content (collectively, “UpTop Content”) is owned by or licensed to UpTop and protected by the intellectual property rights of UpTop or its licensors. All right, title and interest in and to the Site, all other UpTop applications, and any UpTop Content will remain the exclusive property of UpTop and its licensors. Subject to all the Terms of this agreement, UpTop hereby grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license, under the rights UpTop has in the UpTop Content, to privately display the UpTop Content on your computer or cellular device and to download and print a single copy thereof, subject to the restrictions set forth herein. On its own behalf and the behalf of its licensors, UpTop reserves all rights in the UpTop Content, including any software, not expressly granted in this agreement. UpTop does not in any way grant any other rights to you. Except as expressly stated in this agreement, you may not reproduce, distribute, modify, publicly perform or display, or prepare derivative works of any UpTop Content, including any software, without prior written consent from UpTop and/or other third-party owner of the rights in such UpTop Content (if any).
User Content. All ads, photos, pictures, descriptions, data, property information, personal information, or any other information you submit to the Site or any other UpTop application in connection with your use of the Site or other UpTop applications (“User Content”) is owned by you or you otherwise have a valid right to use and sublicense such User Content. You hereby grant to UpTop, its affiliates, and its parent and related companies a worldwide, royalty-free, perpetual, irrevocable, nonexclusive, freely transferable, freely sublicensable (through unlimited levels of sublicense) right and license to use, reproduce, modify, delete, translate, transmit, sell, copy, modify, display, distribute, perform, advertise in, on and around, create derivative works from, store, and otherwise use and exploit all such User Content, and to incorporate such User Content into other works, in any form, media, software or technology of any kind now existing or developed in the future without compensation to you. You further grant to UpTop, a royalty-free right and license to use your name, image and likeness in connection with the reproduction or distribution of the User Content.
Your Warranties Regarding User Content. You may post to the Site or otherwise submit to us your User Content, including without limitation comments regarding property listings, feedback regarding the Service, or any other ideas, suggestions, documents or proposals. By submitting your User Content, you warrant, represent and agree that:
Prohibited Content. You must not post to the Site any content that, as reasonably determined by UpTop, is or appears to be the following:
Prohibited Conduct on the Site. You must not do, or attempt to do, any of the following, as reasonably determined by UpTop, subject to applicable law:
UpTop authorizes usage of the Site and UpTop Content to Users, in each case subject to the following terms:
We are pledged to the letter and spirit of U.S. policy for the achievement of equal housing opportunity throughout the nation. We encourage and support an affirmative advertising and marketing program in which there are no barriers to obtaining housing because of race, age, alienage or citizenship status, color, religion or creed, gender, sexual orientation, occupation, disability, familial status or national origin.
All UpTop Content and User Content is subject to federal fair housing laws, which make it illegal to indicate in any advertisement any preference, limitation, or discrimination because of race, color, religion, sex, physical or mental disability, and/or familial status. Your state jurisdiction may also prohibit any preferences based on sexual orientation, marital status, ancestry, source of income, or other criteria. If you have any question about the fair housing laws and housing discrimination in general, please call your local fair housing agency or the U.S. Department of Housing and Urban Development. For a list of all fair housing groups, go to the Housing Rights Center’s website at www.hud.gov.
No Duty to Monitor. Given the nature of the Site and the volume of messages and postings, except as otherwise expressly provided in these Terms of Service or other applicable terms, we cannot and do not monitor all of the User Content posted or transmitted by Renters, Landlords, Managers, and any other third-party information providers. We reserve the right, in our sole discretion, to monitor, refuse to publish, remove, delete, move or edit any User Content without notice, at any time for any reason. By using the Site, you expressly agree that UpTop (a) will not be liable for any claims, actions or judgments arising out of or related to any User Content, (b) is not obligated to monitor, restrict, verify or filter any User Content posted anywhere on the Site, and (c) may monitor, refuse to publish, remove, delete, move or edit any User Content without notice at any time for any reason, in its sole discretion, without liability. You further expressly agree that you are solely responsible for any and all User Content You submit to the Site.
The views expressed in any User Content that is posted or made available by Users or any other third parties are those of the respective author(s) and not of UpTop. UpTop neither endorses nor is responsible for the accuracy or reliability of any User Content posted on the Site.
Renters may use the Site for personal use only. Renters may not reproduce, copy, sell or otherwise exploit the Site or any part thereof, or access or use the Site for any commercial purposes.
As a Renter, you are only permitted to use LiveUpTop.com to search for properties, communicate with Landlords and Managers, respond to requests for information from Landlords and Managers, including to perform a credit history, set up an electronic rent payment profile, and utilize other rental-related services offered by us. Except as expressly provided above, nothing contained herein shall be construed as conferring, by implication, estoppel or otherwise, any license or right under any patent, trademark or copyright of UpTop.
Notwithstanding the grant of access conferred hereunder, UpTop expressly and without limitation revokes the right of any User who is a competitor, including competitors of UpTop or its affiliates, to access the Site in any way and for any purpose, including, but not limited to, through employees, officers, directors, third party agents, affiliates, or independent contractors. If you are an UpTop competitor, or a competitor of any UpTop affiliate, you must not access the Site and, if you do, you further acknowledge that you are accessing the Site without legal authorization, and agree to immediately discontinue such access, and to direct all parties within your control or under your direction, including, but not limited to, employees, officers, directors, third party agents, affiliates, or independent contractors, to cease accessing the Site on your behalf, or for your benefit.
Our listings may contain phone numbers through which you may contact representatives of the entity that posted the listings. We have an agreement with a third-party provider (the "Call Servicer") allowing certain Landlords or Managers listed on LiveUpTop.com to be assigned a separate unique phone number as part of their listing and to use call measurement and monitoring services, for purposes of quality assurance, customer service and analytics, via the Call Servicer's telecommunications network. By using the Site to access listings and by contacting Landlords and Managers via the telephone numbers listed on the Site, you consent and give permission to have your voice, identity and call content recorded, monitored, stored and divulged for the purposes described above.
Landlords and Managers may request screening reports including credit and background reports from prospective prospective Renters using the UpTop platform. Prospective Renters may utilize our service of receiving credit and background reports which are provided by one or more third-party reporting agencies. Such third-party reporting agencies are responsible for the information they provide as part of the screening reports. UpTop is not responsible for the contents of any screening reports including credit reports and background check reports. There will be an additional fee due to the prospective Renter associated with this optional service. The fee will be clearly displayed prior to ordering any screening reports through the UpTop platform.
Landlords and Managers that request screening reports from prospective Renters, hereby certify that use of these reports will be used for the sole purpose of evaluation of prospective Renter in relation to a prospective Renter’s rental application and for no other purpose. Upon using our services, Landlords and Managers expressly agree to familiarize themselves with, and comply with, the Fair Credit Reporting Act and any applicable federal or state laws governing such screening reports. If a Landlord or Manager has relied upon any adverse content included in one or more screening reports, such Landlord or Manager is required to provide the applicant with an Adverse Action Notice, as prescribed by the Federally mandated Fair Credit and Reporting Act. Landlords or Managers are solely responsible for administering any such Adverse Action Notices.
All personal information such as credit card and on-line electronic checking information associated with Renters that is collected through Online Rent Payment Services will be delivered to participating Landlords or their Managers in accordance with UpTop’s service agreement with the participating Landlord or Manager. All parties will receive notifications of payments receipts acknowledging payment through the service.
Renters who wish to utilize UpTop rent payment services and Landlords or authorized Managers who agree to cover the processing fees on behalf of their Renters will be charged a 2.9% convenience fee of the monthly rent or $5 flat convenience fee for direct bank to bank transfer of monthly rent totals. The convenience fees will be added automatically to the payment amount except if Landlords or authorized Managers agree to pay the fee for the Renters, such amounts will be debited from the accounts for the related properties. These fees are non-negotiable and non-refundable. Our services are currently free for landlords, there is no charge to receive rent payments (unless requested to cover tenants convenience fees). UpTop may change its fee structure at any time. If our fee structures change, UpTop agrees to inform all Users via email.
In the event of disputes or insufficient funds, UpTop will charge the Renter or Landlords (those responsible for paying the fees) with a fee of $30 which is due immediately upon occurrence. UpTop reserves the right and discretion to charge these fees when disputes and insufficient funds occur.
We may need to validate or authenticate your identity and the information you supplied when creating your UpTop Account. This may include asking you for further information and/or documentation about your UpTop Account usage or identity, or requiring you to take steps to confirm ownership of your email address, wireless/cellular telephone number or financial instruments, and verifying your information against third party databases or through other sources. This process is for internal verification purposes. You hereby authorize UpTop, directly or through third parties, to make any inquiries we consider necessary to validate your identity and/or authenticate your identity and UpTop Account information.
Term. These Terms shall remain in full force and effect until terminated in accordance with this Section.
Right to Terminate. We may, at any time, terminate your access to the Site, and your Account, for any reason, including if we believe in our sole discretion that you may have violated these Terms or have otherwise engaged in any activities that may harm or damage the reputation, rights, person, or property of UpTop, our Users, or any other person.
Effect of Termination. Upon termination of your Account, your agreement with UpTop pursuant to these Terms will also terminate, except that the following provisions will survive the termination: Sections, 1, 2, 3, 4(c), 16, 18, 21, 25 and 26. If your Account or access to the Service is terminated, you may no longer have access to the User Content you posted on the Site. Upon termination, UpTop may remove and discard your User Content from the Site. UpTop will not be liable to you or any third party for any termination of your Account or your access to the Site.
You have the right to decline and opt-out of the automatic receipt of UpTop’s marketing materials and advertisements at any given time by sending a request to opt out to support@liveUpTop.com.
No Warranty. ALL SERVICES ARE PROVIDED BY US ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. Without limiting the generality of the forgoing, UpTop, its owners, affiliates, officers, directors, employees, agents, contractors, content or service providers (including listing service providers), investors, successors and assigns (collectively, the “UpTop Group”) specifically disclaim any and all warranties, express or implied by statute or otherwise, including but not limited to: (1) any warranties concerning the availability, accuracy, usefulness, or content of or uninterrupted access to information, products or services and (2) any warranties of title, non-infringement, merchantability or fitness for a particular purpose. This disclaimer of liability applies to any damages or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft, or destruction or unauthorized access or alteration of or use of record in connection with the use or operation of the Service, whether for breach of contract, tort, negligence or any other cause of action.
Use At Your Own Risk. Any listing on the Site may be updated, changed, modified, withdrawn, sold or rented at any time without notice. Any furnishings, decorations and artist representations are provided for illustrative purposes only. All square footage and dimensions are approximate. Before you act on any information you have found on the Site, you should independently confirm any facts that are important to your decision, including without limitation obtaining any exact dimensions by retaining the services of a professional architect or engineer.
The information contained on the Site is not intended to be comprehensive, and may not be accurate, up-to-date or applicable to any particular case. IF YOU RELY ON ANY INFORMATION, CONTENT OR SERVICE AVAILABLE THROUGH THE SITE, YOU EXPRESSLY AGREE THAT YOU DO SO SOLELY AT YOUR OWN RISK. YOU UNDERSTAND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS YOU MAY INCUR THAT RESULTS FROM YOUR USE OF ANY INFORMATION, CONTENT OR SERVICE FROM THE SITE. NO MEMBER OF THE UpTop GROUP CAN ACCEPT ANY LIABILITY FOR ANY INACCURACIES OR OMISSIONS IN THIS SITE.
Indemnification. By choosing to use the Site, unless otherwise expressly agreed to by UpTop, you agree to indemnify, defend and hold harmless the UpTop Group from any and all claims or damage, including attorney’s fees, arising out of or related to: (1) User Content you choose to submit, post or transmit through the Site; (2) your use of or connection to the Site; (3) your violation of these Terms; or (4) your violation of any rights of another.
Limitation of Liability. To the extent permitted by applicable law, no member of the UpTop Group shall be liable to you or any other third party for any direct, indirect, incidental, special, punitive or consequential damages arising out of your access to or use of the Site or any information contained in it, or your inability to gain access to or use the Site, or any breach of any warranty, even if UpTop has been advised of the possibility of such damages. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE OR THE SERVICE, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE AND THE SERVICE.
Except as otherwise provided in these Terms, UpTop will send you notices, and you hereby authorize UpTop to send notices (including notice of subpoenas or other legal process, if any), via electronic mail to the email address that we have on record for you. You will be considered to have received a notice when sent by UpTop via electronic mail, whether or not received by you. UpTop may provide notice to any email or any other physical address that you provide to us. You must keep your contact information including email address and physical address current and any notice sent by UpTop to an address that you have most recently provided is effective notice. Any notice you provide to us must be sent by mail to UpTop 1460 Broadway, 10th Floor, New York, NY 10036, Attn: Frank Barletta.
Your Obligation to Stay Current. We encourage you to check back regularly to review these Terms.
Changes to Service. We reserve the right to modify or discontinue, and restrict or block access to, the Service without notice to you. We may modify or remove any User Content from the Service at any time without notice to you, including removal of User Content that we believe to be obscene, lewd, lascivious, excessively violent, harassing, or otherwise objectionable. We are not liable for any such modification, suspension, discontinuance or removal, and any such action by us will not affect UpTop’s license to your User Content.
Agreement to Conduct Transactions Electronically. All of your transactions with or through the Site may, at our option, be conducted electronically from start to finish. If the law allows you to withdraw this consent or if we are ever required to deal with you non-electronically, we reserve the right to charge or increase fees and you agree to print or make an electronic copy of the Terms and any other contract or disclosure that we are required to provide to you.
Interpretation. The paragraph headings in these Terms are included to help make these Terms easier to read and have no binding effect. As used in these Terms, the words “include” and “including” are meant to be illustrative and not exhaustive.
Third Party Rights. These Terms are for the sole benefit of UpTop, our officers, directors, employees, affiliates and agents. No other person, including any User of the Site, shall have the right to assert a claim under these Terms.
Severance. If any part of the Terms is held by a court of competent jurisdiction to be invalid or unenforceable, the invalid or unenforceable part will be given effect to the greatest extent possible (if any) and the remainder will remain in full effect (with or without such part of the Terms), provided that the allocation of risks described in these Terms is given effect to the fullest extent possible.
Assignment. These Terms are personal to you and you may not transfer, assign or delegate them to anyone without the express written permission of UpTop. Any attempt by you to assign, transfer or delegate these Terms without the express written permission of UpTop will be null and void. UpTop has the right to transfer, assign and delegate these Terms to one or more third parties without your permission.
Export Limitations. This Site is controlled by us from our offices in the United States of America and is directed to U.S. users. If you access the Site from locations outside the U.S., you do so at your own risk and you are responsible for compliance with all US export control laws as well as any applicable local laws in the jurisdiction from which access occurs. You may not use or export anything from the Site in violation of U.S. export laws and regulations or the Terms.
Jurisdiction; Choice of Law; Waiver of Jury Trial and Class Action Relief. These Terms and all performances and claims of every nature between us are governed by the laws of the State of New York, U.S.A., without regard to any conflict of laws principles that would result in the application of the law of a different jurisdiction. You and UpTop submit to the exclusive personal jurisdiction and venue of the state and federal courts located within New York, New York. The parties hereto agree to waive any right to request a trial by jury.
Limitations on Actions. Any action concerning any dispute with respect to the Site must be commenced within one year after the cause of the dispute arises, or the cause of action is barred.
Integration; Entire Agreement. You acknowledge and agree that these Terms of Service, and the other policies, terms, guidelines and rules referenced herein, constitutes the entire and exclusive agreement between UpTop and you regarding the Site, and supersede and replace all contemporary and prior agreements between UpTop and you regarding the provisions of this Agreement including your use of the Site. You further acknowledge and agree that each time you visit the Site, you: (i) expressly waive any prior rights you may have obtained from any contract to access or use the Site; (ii) re-affirm your commitment to abide by these Terms of Service, including any new provisions that have been added since the last time you accessed the Site; and (iii) signify your agreement that the current terms in UpTop’s Terms of Service supersede all prior Term of Use or terms of service in effect when you accessed the Site, such that each time you access the Site, you form a new agreement with UpTop that applies to your access to the Site.
No Waiver. The failure of any party to exercise or enforce any right or provision of these Terms, including any failure to act with respect to a breach, will not constitute a waiver of such right or provision or that party’s right to act with respect to subsequent or similar breaches.
Third Party Vendor. Our website and contact center may be staffed by a third-party vendor to support, screen, and answer telephone, email, text, and internet customer inquiries about UpTop Properties and Agents. Any information collected is confidential and is not shared with any other parties.
Notice Regarding Trademarks. The Site includes certain trademarks and service marks owned by UpTop, its affiliates and others. You agree not to use these trademarks or service marks in any manner without the express written permission of the owner. You further agree that you will not alter or remove any copyright, trademark or other legal notice from any UpTop Content or the User Content of any other User.
Notice Regarding Copyrights. UpTop respects the intellectual property rights of others and requests that users of the Site do the same. In accordance with the Digital Millennium Copyright Act of 1998 (DMCA), if you believe that your work is being used on the Site in a way that constitutes copyright infringement, you may notify us at UpTop 1460 Broadway, 10th Floor, New York, NY 10036. Please provide the following information:
It is our policy to terminate in appropriate circumstances any Account or User for infringement of intellectual property rights, including copyrights. UpTop may access, preserve and disclose to third parties any of your information or data (including personally identifiable information and private communications) related to a written complaint of intellectual property misappropriation, misuse or infringement, if we believe in our sole discretion that such access, preservation, or disclosure is necessary or useful to respond or otherwise address such complaint. We will inform you if required by law prior to such disclosure.
Notice of Availability of Filtering Software. Minors are not authorized to visit our Site. We do not believe that the Site contains materials that would typically be the subject of filtering software. Nevertheless, all users are hereby informed that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist in limiting access to material that is harmful to minors. A report detailing some of those protections can be found at http://www.ntia.doc.gov/ntiahome/ntiageneral/cipa2003/index.html (Children’s Internet Protection Act: Report on the Effectiveness of Internet Protection Measures and Safety Policies).
No Harvesting or Dictionary Attacks Allowed. We will not give, sell, or otherwise transfer addresses maintained by us to any other party for the purposes of initiating, or enabling others to initiate, electronic mail messages except as authorized by law or appropriate personnel or policies. Except for parties authorized to have such addresses, persons may violate federal law if they: (1) initiate the transmission to our computers or devices of a commercial electronic mail message (as defined in the U.S. "CAN-SPAM Act of 2003") that does not meet the message transmission requirements of that act; or (2) assist in the origination of such messages through the provision or selection of addresses to which the messages will be transmitted.
If a dispute arises between you and UpTop, our goal is to provide you with a neutral and cost-effective means of resolving the dispute quickly. Accordingly, you and UpTop agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services (a "Claim") in accordance with the subsections below or as we and you otherwise agree in writing.
In the event that either party to these Terms has a dispute relating to or arising from these Terms of Service or the use of the Site or our related mobile applications, it must immediately notify the other party in writing giving details of the dispute. If the parties cannot resolve the dispute within fourteen (14) days of receipt of the notice provided for above, the dispute will then be submitted to mediation to be administered by the Judicial Arbitration and Mediation Services, Inc. ("JAMS") by a single mediator agreed to by the parties, or failing agreement, appointed by JAMS at the request of either party. If the matter is not resolved by mediation within fourteen (14) days from the date on which the mediator first engages with the parties in an attempt to settle the dispute, the matter will be submitted for arbitration to be administered by JAMS in accordance with the Federal Arbitration Act (9 U.S.C. § 1 et seq.) and the applicable JAMS rules, including the Comprehensive Arbitration Rules and Procedures (the “Rules”), applicable at the time, by a single arbitrator to be appointed by the parties or, failing agreement, appointed by JAMS at the request of either party. The arbitrator shall not have the power to maintain class action or class-wide procedures, or provide either party with class-wide relief as such relief has been waived under this terms of this Agreement. Any such mediation or arbitration shall take place in New York, New York (or to a JAMS office closest to New York, New York if no office exists in New York, New York at the time). Unless the parties agree otherwise, English shall be the sole language of all such proceedings. This arbitration provision shall survive termination of this Agreement.
YOU HAVE A RIGHT TO OPT OUT OF THIS AGREEMENT TO ARBITRATE AS DESCRIBED BELOW. UNLESS YOU OPT OUT OF ARBITRATION, YOU AND WE ARE WAIVING (i) THE RIGHT TO HAVE OUR DISPUTE HEARD BEFORE A JUDGE OR JURY, OR OTHERWISE TO BE DECIDED BY A COURT OR GOVERNMENT TRIBUNAL, and (ii) ANY ABILITY TO ASSERT OR PARTICIPATE ON A CLASS OR REPRESENTATIVE BASIS IN COURT OR IN ARBITRATION. ALL DISPUTES, EXCEPT AS STATED BELOW, MUST BE RESOLVED BY BINDING ARBITRATION WHEN EITHER YOU OR WE REQUEST IT. You have the right to opt out of this agreement to arbitrate by sending written notice to UpTop 1460 Broadway, 10th Floor, New York, NY 10036, Attn: Frank Barletta, within 30 days of first accepting these Terms of Service. Otherwise, this agreement to arbitrate will apply and be binding without limitation.
After we receive notice that you have commenced arbitration, we will reimburse you for your payment of the filing fee up to $300. For claims less than $75,000 that you win in arbitration, we will reimburse you for any fees paid to the arbitration organization and/or arbitrator. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the JAMS Rules. In such case, you agree to reimburse us for all monies previously disbursed by us that are otherwise your obligation to pay under the Rules. Arbitration relating to claims of $75,000 or greater shall be governed by the Rules with regard to payment of fees. If you consider that you are unable to afford any fees that would be yours to pay, you may request that we pay or reimburse them, and we will consider your request in good faith. Notwithstanding the foregoing, either party may bring an individual action in small claims court, if the claim is in that court's jurisdiction and proceeds on an individual, and not a class-wide, basis. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies. The arbitration shall be kept confidential by both parties, and either party may seek injunctive relief before the United States District Court for the Southern District of New York or the state courts of New York County, New York for the limited purposes of: (i) securing compliance with this arbitration provision pursuant to the Federal Arbitration Act; and (ii) enforcing the confidentiality of the arbitral proceedings.
BY AGREEING TO THIS ARBITRATION PROVISION, EACH PARTY UNDERSTANDS THAT BOTH YOU AND WE ARE WAIVING THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. BOTH PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, UNLESS THE PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF REPRESENTATIVE OR CLASS PROCEEDING. If these terms relating to class or representative procedures are legally unenforceable for any reason with respect to a claim, then this agreement to arbitrate will be inapplicable to that claim, and the claim will instead be handled through litigation in court, rather than by arbitration, on the terms below.
The arbitrator will have the power to award to a party any damages or other relief provided for under applicable law, with the exception of punitive damages to which neither party will be entitled.
The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator's decision will be final and binding on the parties. A party can file a written appeal to the arbitration administrator within 30 days of award issuance. The appeal must request a new arbitration in front of three neutral arbitrators designated by the same arbitration administrators. The panel will reconsider all factual and legal issues, following the same rules of procedure, and will make decisions based on majority vote. Any final arbitration award will be binding on the named parties and enforceable by any court having jurisdiction.
Subject to the foregoing, all disputes arising out of or related to these Terms or your use of the Site including our related mobile applications, shall be governed by, construed and enforced in accordance with the laws of New York, without giving effect to any principles of conflicts or choice of law. If the mandatory arbitration provisions above do not apply to any dispute relating to or arising from these Terms or the use of the Site or our related mobile applications for any reason, such dispute shall be submitted to and resolved solely in the state or federal courts located in New York, New York in front of a judge and without a jury. Both parties hereby consent to the personal jurisdiction of these courts and waive any objection (including of inconvenient forum) to these courts hearing such disputes. No other court, whether state or federal, may hear any such complaint or dispute. BY ACCESSING AND/OR USING THE SERVICE, YOU IRREVOCABLY SUBMIT TO SUCH EXCLUSIVE JURISDICTION AND VENUE AND AGREEMENT TO WAIVE A JURY TRIAL.
This arbitration agreement shall be construed broadly to encompass any and all possible claims between you and UpTop that are even tangentially related to the contractual relationship created by these Terms of Service.
If you are a California resident, in accordance with California Civil Code Section 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Subject to the restrictions in these Terms, UpTop and Landlords and Managers (that post property information available on the Site and our related mobile applications) hereby authorize you to view, copy, download and print a single copy of the associated content available on liveUpTop.com, provided that: (1) the content is used solely for personal, non-commercial purposes; (2) the content is not modified, republished, or redistributed; and (3) all copyright, trademark, service mark and other proprietary notices are reproduced as they appear in any such content. Without limiting the generality of the foregoing, as a Renter, you are only permitted to use liveUpTop.com to search for properties, communicate with Landlords or Managers, and utilize other rental-related services offered by us. Except as expressly provided above, nothing contained herein shall be construed as conferring, by implication, estoppel or otherwise, any license or right under any intellectual property including any registered patent, trademark or copyright of UpTop.
The Services may not be compatible with your mobile device or carrier. Further, your use of the Services may be subject to the terms of your agreements with your mobile device manufacturer or your carrier. You may not use a modified device to use the Services if the modification is contrary to the manufacturer’s software or hardware guidelines, including disabling hardware or software controls - sometimes referred to as “jail broken.”
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