The Site LiveUptop.com and our other owned websites and smartphone applications (collectively, 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 and set up a seamless ongoing payment plan for rent and other ancillary payments.
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 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.
UpTop does not broker, lease, or sublease apartments directly and is not a party to any transaction between landlords (including, as applicable, property management companies and/or property 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.
Without limiting the generality of the foregoing, you acknowledge and agree as follows:
Whenever submitting Content, we ask that you use your best judgment and be respectful of other individuals.
You must not post to the Site any Content that, as reasonably determined by UpTop, is or appears to be the following:
UpTop authorizes usage of the Site and 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 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 Content posted or transmitted by Renters, Landlords and other third-party information providers. We reserve the right, in our sole discretion, to monitor, refuse to publish, remove, delete, move or edit any 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 Content, (b) is not obligated to monitor, restrict, verify or filter any Content posted anywhere on the Site, and (c) may monitor, refuse to publish, remove, delete, move or edit any 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 Content You submit to the Site.
The views expressed in any Content posted or made available by third parties, including other Users, are those of the respective author(s) and not of UpTop. UpTop neither endorses nor is responsible for the accuracy or reliability of any Content posted on the Site.
License by UpTop to You. You must respect the intellectual property laws protecting the Site. UpTop grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license, under the rights UpTop has in the Content, to privately display the Content on your computer or cellular device and to download and print a single copy thereof, subject to the restrictions set forth herein.
Reservation of Rights. On its own behalf and the behalf of its licensors, UpTop reserves all rights in the Content, including any software, not expressly granted in this Section. UpTop does not in any way grant any other rights to you. Except as expressly stated in this Section, you may not reproduce, distribute, modify, publicly perform or display, or prepare derivative works of any Content, including any software, without prior written consent from UpTop or other third-party owner of the rights in that Content (if any).
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 UpTop to search for properties, communicate with Landlords, respond to requests for information from Landlords, 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 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 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 our listings. We have an agreement with a third-party provider (the "Call Servicer") allowing certain Landlords listed on Liveuptop.com to be assigned a 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 Liveuptop.com to access listings and by contacting advertisers/Landlords via the telephone numbers listed on Liveuptop.com, you consent and give permission to have your voice, identity and call content recorded, monitored, stored and divulged for the purposes described above.
Landlords may request credit/background reports from prospective tenants using the UpTop platform. Tenants may utilize our service of receiving credit and background reports provided by a third-party provider. Third-party reporting agencies are responsible for information provided through screening reports. UpTop is not responsible for the contents of any credit report, background check report or credit scores. There will be an additional fee due to the tenant associated with this optional service. The fee will be clearly displayed prior to ordering screening reports through the UpTop platform.
Landlords that request screening reports from prospective tenants, hereby certify that use of these reports will be used for the sole purpose of evaluation of prospective tenant in relation to a tenant’s rental application and no other purpose. Upon using our services, landlords expressly agree to familiarize yourself and comply with the Fair Credit Reporting Act and any applicable state laws governing consumer reports. If landlords have relied upon the contents of consumer reports, you are required to provide the applicant with an Adverse Action Notice, as prescribed by Federal Legislation (Fair Credit and Reporting Act). Landlords are solely responsible for administering Adverse Action Notices.
Rent payment services may be provided to current landlord participants and their respective tenants in conjunction with certain third-party, affiliated service providers including, without limitation, the payment processor affiliate(s) who are responsible for the collection and remission of all payments made via the prescribed services. Tenants of participating landlords are permitted to use the services to pay rent and any other related fees and charges. All personal information such as credit card and on-line electronic checking information collected through payments made through the Service will be delivered to participating Landlords in accordance with UpTop’s service agreement with the Participating Landlord. All parties will receive notifications of payments receipts acknowledging payment through the service.
You agree to indemnify and hold harmless UpTop, its affiliates and its and their respective employees, representatives, agents and suppliers ("UpTop Indemnitees") against any claim, suit, action, or other proceeding brought by anyone, including claims by the Landlords or Rent Payment Service Provider, in connection with your use of the Online Rent Payment Services, including but not limited to: (i) your use or someone using your computer or your account; (ii) a violation of any agreement between you and the Rent Payment Service Provider or you and the rental property, whether such violation is by you or anyone using your computer; (iii) a claim regarding the amount paid or received using the Online Rent Payment Service; or (iv) a claim regarding the date payment is made or received. You agree to pay any and all costs, damages, and expenses incurred by UpTop Indemnitees arising out of such claims, suits, actions or other proceedings, including, without limitation, reasonable attorneys' fees and costs, and awards in connection with (that is, against, or arising from, or otherwise incurred by) any such claim, suit, action, or proceeding attributable to any such claim. UpTop cannot and will not be liable for any damage or loss arising from your failure to comply with the terms of service of the Rent Payment Service Provider or you following any links to third-party sites.
Tenants who wish to utilize UpTop rent payment services and landlords who agree to cover the processing fees on behalf of their tenants will be charged a percentage based convenience fee of the monthly rent or set convenience fee for direct bank to bank transfer of monthly rent totals. The convenience fees will be added automatically to the payment amount. 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). If our fee structures change, UpTop agrees to inform all tenant and landlord users via email.
Landlords in connection with your Account, use of our Site and other UpTop services, agree that they will not:
Please note that the various funding sources have different dispute resolution rights and procedures in the event your transactions turn out to be unsatisfactory. Your dispute resolution rights are determined by the funding source used to fund the transaction.
You also agree that you will not hold UpTop liable for any damages for all disputes between you and the recipient.
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.
You must open an Account with UpTop to use the Services. During registration, we will ask you for information, including your name and other personal information. Users must provide accurate and complete information in response to our questions and keep that information current. Users are fully responsible for all activity that occurs under their UpTop Account, including for any actions taken by persons to whom you have granted access to the UpTop account. UpTop reserves the right to suspend or terminate the UpTop account of any User who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.
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, consistent with local, state and federal fair housing and other laws, 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 survive the termination: Sections, 1, 2, 3, 4(c), 17, 19, 26, 27 and 30. If your Account or access to the Service is terminated, you may no longer have access to the Content you posted on the Site. Upon termination, UpTop may remove and discard your 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 UpTop’s marketing and advertising programs at any given time. All requests should be directed to email@example.com.
No Warranty. ALL INFORMATION, CONTENT, AND SERVICE AVAILABLE THROUGH THE SITE ARE FOR INFORMATION PURPOSES ONLY AND 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) 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 give you any 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 other address that you provide to us. You must keep your address current and any notice sent by UpTop to the 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, New York, NY 10036, Attn: Frank Barletta.
The Fair Credit Reporting Act allows you to obtain a disclosure from every credit reporting agency of the nature and substance of all information in your personal files at the time of the request. Full disclosure of information in the User’s file at Experian must be obtained directly from Experian by calling 888-397-3742 or logging on to www.experian.com/consumer. The credit report that you request from the UpTop platform (“Reseller”) is not intended to constitute the disclosure of Experian information required by the Fair Credit Reporting Act or similar and relevant state laws.
Otherwise, the consumer reporting agency may impose a reasonable charge for the disclosure.
VANTAGESCORE CREDIT SCORE NOTICE
Prior to the disclosure of any VantageScore to any User, UpTop shall provide notice to the User substantially similar to the following:
The UpTop Services utilize the VantageScore® credit score. The VantageScore credit score may or may not be used by Report Subject’s lenders and is not an endorsement or guarantee of Report Subject’s credit worthiness as seen by lenders.
Please be aware that there are many scoring models used in the marketplace. Each scoring model may have its own set of factors and scale. The information and credit scoring may be different than that used by a lender. The VantageScore credit score may not be identical in every respect to any other credit score produced by another company or used by Report Subject’s lender.
Report Subject’s VantageScore credit score is calculated using Report Subject’s actual data from Report Subject’s credit file at the time of (Reseller)’s request. Keep in mind, however, that other factors, such as length of employment and annual salary, are often taken into consideration by lenders when making decisions about Report Subject. How each lender weighs its chosen factors may vary, but the exact formula used to calculate Report Subject’s score is proprietary. Also note that each consumer reporting agency has its own set of data, resulting in a separate VantageScore credit score for each of Report Subject’s credit files.
You agree to request VantageScore credit scores only for your use alone for the purposes certified to (Reseller) and for no other purpose or use. All VantageScore credit scores provided hereunder will be held in strict confidence and may never be sold, licensed, copied, reused, disclosed, reproduced, revealed or made accessible, in whole or in part, to any person except as required by law or as otherwise set forth in your agreement with (Reseller).
VantageScore® is owned by VantageScore Solutions, LLC.
In general – Subject to subsection (c) of the FCRA § 60, any consumer reporting agency may furnish a consumer report under the following circumstances and no other:
In accordance with the written instructions of the consumer to whom it relates.
BY ACCEPTING THE TERMS IN THIS, YOU ARE PROVIDING PROOF THAT YOU HAVE READ AND UNDERSTAND THE FCRA REQUIREMENTS FOR CREDIT REPORTING AND ALLOW UpTop ACCESS TO YOUR CREDIT REPORT ON YOUR BEHALF. FOR ADDITIONAL INFORMATION, PLEASE VISIT https://www.consumer.ftc.gov/articles/pdf-0111-fair-credit-reporting-act.pdf
THE PURPOSE OF THE UpTop APPLY SERVICE IS TO FACILITATE THE TRANSFER OF THE CREDIT REPORT AND OTHER INFORMATION SECURELY BETWEEN A POTENTIAL TENANT AND LANDLORD/PROPERTY OWNER FOR THE PURPOSE OF SCREENING THE TENANT FOR A POTENTIAL RENTAL APARTMENT. UpTop CLIENTS (TENANTS AND LANDLORDS/PROPERTY OWNERS) ARE STRICTLY FORBIDDEN FROM RESELLING THE CREDIT REPORT TRANSFERRED DURING THIS PROCESS.
ALL USERS AGREE TO THESE TERMS. YOU HAVE READ AND UNDERSTAND THE FCRA REQUIREMENTS FOR CREDIT REPORTING AND ALLOW UpTop ACCESS TO YOUR CREDIT REPORT ON YOUR BEHALF. FOR ADDITIONAL INFORMATION, PLEASE VISIT https://www.consumer.ftc.gov/articles/pdf-0111-fair-credit-reporting-act.pdf
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 Content from the Service at any time without notice to you, including removal of 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 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 and the remainder will remain in full effect, 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 applicable local laws. 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. 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 the City of New York. The parties hereto 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.
Entire Agreement. These Terms comprise the entire agreement between you and UpTop with respect to the use of the Site and supersede all contemporaneous and prior agreements between the parties regarding the subject matter contained herein.
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 Content.
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, 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 copyright 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.
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 https://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.
Except as otherwise provided in these Terms, UpTop will give you any 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 other address that you provide to us. You must keep your address current and any notice sent by UpTop to the 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, New York, NY 10036; Attn: Frank Barletta.
You acknowledge and agree that these Terms of Service, and the other policies, terms, guidelines and rules referenced herein, constitute the entire and exclusive agreement between UpTop and you regarding the Site, and supersede and replace any prior agreements between UpTop and you regarding 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.
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 of Service has a dispute relating to or arising from these Terms of Service or the use of the Site or Mobile App, 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 by a mediator agreed to by the parties, or failing agreement, appointed by Judicial Arbitration and Mediation Services, Inc. ("JAMS") at the request of either party. If the matter is not resolved by mediation within fourteen (14) days from there, the matter will be submitted for arbitration in accordance with the Federal Arbitration Act (9 U.S.C. § 1 et seq.), 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. Any such mediation or arbitration shall take place in New York, New York. 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, New York, NY 10036, Attn: Frank Barletta, within 30 days of first accepting these Terms of Service. Otherwise, this agreement to arbitrate will apply 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 Comprehensive Arbitration Rules and Procedures (the "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 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 UpTop 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 of Service or the use of the Website or Mobile App for any reason, such dispute shall be submitted to and resolved solely in the state or federal courts located in New York, New York without jury trial. 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 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 of Service, UpTop hereby authorizes you to view, copy, download and print a single copy of the information and data 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 advertisers/Landlords, 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.
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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