These terms are a legal agreement between The Upside Inc. (“the upside”, “we” or “us”) and you as the user of this website. You should read all the terms before indicating acceptance. These terms apply to the upside website and any new features that we may introduce from time to time. If new terms accompany any of those new features, then those terms will apply. By using our website, you accept these terms. If you do not accept them, do not use this website. You are bound by these terms even if you do not read all the terms.
- “Buyer” means a user who purchases items through the Website;
- “Commission” is defined in Section 13;
- “Consignor” means a user who consigns items through the Website;
- “Personal Data” means all personal information about an identifiable individual input by users (but excluding business contact information);
- “Property” means an item of property such as designer goods, which is sold through the Website;
- “Sale of Property” means a sale of Property by the upside to a Buyer, or the occurrence of loss, theft, damage or destruction of the Property while in the physical possession of the upside or while in transit with the common carrier from the Consignor to the upside.
- “users”, “you” and “your” refer to any users of the Website;
- “Website” means www.the-upside.ca website.
- Our Website: The Website provides a forum to consign and sell or purchase items such as designer goods. If you wish to purchase items from the upside, then you are a “Buyer” under the terms of Sections 4 and 5. If you wish to consign items with the upside, then you will be a “Consignor” under the terms of Sections 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15. Some areas of the Website are accessible without an account. If you access areas of the Website without an account, you are still bound by these terms.
- Terms Applicable to Buyers: By placing an order through the Website checkout screen, a Buyer acknowledges and agrees that upon successful verification and authentication of payment information provided by the Buyer, the upside will deliver the products to the Buyer at a price equal to the amounts presented to and agreed-upon by the Buyer to the address provided by the Buyer. As a Buyer, you acknowledge that the upside or its payment processing service providers shall be entitled to verify and authenticate your payment information, and if there is a verification failure, the Buyer may be contacted to confirm the Buyer’s payment information, identity and/or intent to place the order.
the upside has not accepted an order from a Buyer, and the upside makes no commitment of any kind to deliver products to Buyer, until the order has been accepted. If you are under 18, considered a minor in your local jurisdiction, or the equivalent thereof, you may use this checkout only with approval of your parent or guardian. the upside reserves the right to refuse service to Buyers or cancel orders in its sole discretion.
- Title to Goods: After the upside confirms and accepts an order placed by a Buyer, title to the products shall transfer from the upside to Buyer, at the time the upside places the products with a common carrier.
- Terms Applicable to Consignors: Consignor will make the Property available to the upside on a consignment basis, and Consignor appoints the upside as the consignor in respect of any item of accepted Property.
- Delivery of Property: the upside accepts items of the Property from Consignor on a consignment basis only on the terms of this agreement. Consignor shall be responsible for delivering the Property to the warehouse or other designated location of the upside. For initial delivery, the upside will pay for reasonable costs of shipping while the Property is in transit to the upside in accordance with the upside’s By delivering items of Property to the upside, the Consignee offers to enter into a consignment contract with the upside. By submitting an item of Property to the upside the Consignor represents and warrants that (a) such Property is a genuine product, (b) such Property is not a replica, counterfeit or knock-off product, and (c) the Consignor has all necessary rights of ownership to consign and sell the Property through the Website.
- Property Acceptance: Upon receipt of the Property, the upside will evaluate the Property to determine and verify the authenticity, quality and suitability of the Property, according to the standards and business requirements maintained by the upside, and the then-current marketplace. Upon acceptance, the upside will notify the Consignor. The decision of the upside regarding acceptance or non-acceptance of the Property is at the sole discretion of the upside. Once accepted, then the Consignor’s offer to enter into a consignment contract is accepted, and the terms of Sections 11, 12, 13, 14 and 15 will apply. If not accepted, then the Consignor’s offer to enter into a consignment contract is not accepted, and the terms of Section 9 will apply.
- Non-Acceptance of Property: Items of Property that do not conform with standards of authenticity, quality and suitability or the upside‘s other business requirements will be returned to Consignor or, at the option of Consignor, donated to a local charity, or otherwise disposed of according to the disposal policies related to unclaimed Property. In the case of return of non-accepted Property, Consignor is responsible for costs and risks associated with all return shipping.
- Counterfeit Products: It is an offence under Canadian law to import, export or trade in counterfeit products, and in order to comply with Canadian laws, and to mitigate its risk with respect to the receipt of counterfeit products, the upside has a strict no-tolerance policy regarding counterfeit products. the upside will not accept counterfeit products under any circumstances. Consignor agrees not to submit or deliver any counterfeit products to the upside. In the event of any submission to the upside of any counterfeit products, the upside reserves the following rights. the upside may in its discretion: (a) return such property to the Consignor; (b) confiscate and detain such Property; (c) contact or otherwise cooperate with appropriate authorities including applicable police services, courts or Canadian Border Services Agency officials (collectively “Authorities“) regarding the seizure, disposition or destruction of counterfeit goods or the investigation of any violation of the Combating Counterfeit Products Act, the criminal offence provisions of the Copyright Act or offence provisions of the Trademarks Act. By submitting counterfeit products to the upside, you consent to the disclosure of your contact information to such Authorities for the purpose of investigation of any such alleged infringement, violation or offence.
- Acceptance and Consignment Period: Upon acceptance, the upside will then categorize and price the Property according to the upside‘s internal product categorization and pricing process. Prior to final acceptance, depending on the quality and suitability of the Property, if an item is not delivered in acceptable condition for resale, or to improve marketability, the upside may if necessary make reasonable minor repairs, cleaning or adjustments to the Property in line with its policies and pricing for such services (for example, stain removal, minor stitches, fixing buttons, ripped seams or shoe soles), and the upside will deduct the costs of any such services from the consignors Commission.
The Consignment Period for an item of Property shall commence on the date the Property is accepted by the upside, and shall end on the date that is 180 days from the item is uploaded to the website. The Consignment Period may be extended by mutual consent of both parties.
Upon acceptance of an item of Property, the upside will display the Property for sale, and will make all commercially reasonable efforts to sell the Property to a Buyer within the Consignment Period. The price will be set by the upside and may be changed from time to time, according to the business requirements of the upside, and the then-current marketplace.
the upside may run promotions from time to time, or offer discounts or otherwise adjust the pricing of any item or category of Property from time to time in the discretion of the upside. the upside may use items of Property in promotional and marketing material (such as photoshoots or other media collateral) for the purposes of selling the Property and providing consignment services under this agreement.
- Title With Respect to Consignor: Title to and ownership of the Property will remain with the Consignor until a Sale of Property and delivery of the Property to the common carrier for delivery to the Buyer.
- Commission: In the event of a Sale of Property, the upside will pay to the Consignor the following: An amount equal to 60% of the net selling price (excluding tax, packaging and shipping) of items of Property where the aggregate selling price totals $9,999.99 or less in annual sales; and An amount equal to 70% of the net selling price (excluding tax, packaging and shipping) of items of Property where the aggregate selling price totals $10,000 or more in annual sales.
The difference between the net selling price of the Property and the amount paid to the upside (the “Commission“) shall be the Consignor’s sole compensation under this agreement. The net selling price reflects all applicable third-party sales commissions, referral fees, promotions and other discounts applied directly to or associated with the sold item of Property. the upside will remit payment of Commissions to the Consignor [quarterly or upon written request].
- Risk: The risk of loss, theft, damage or destruction of the Property shall pass to the upside while the Property is in the physical possession of the upside. the upside shall obtain and maintain adequate commercial liability insurance in such amounts and against such risks as are customary in the industry. If the Property is subject to any loss, theft, damage or destruction while the Property is in the physical possession of the upside, the payment of the Commission owing on that item of Property shall be the sole remedy of the Consignor and the aggregate risk of the upside, and is in lieu of any other remedy available to the Consignor as a matter of law or equity.
- Removal of Property: At the end of the Consignment Period, Consignor may require the removal of all or some items of the Consignor’s Property from the Website, with reasonable written notice to the upside. Upon receipt of any such written request, the upside shall take all reasonable efforts to remove the Property in question from the Website, delist such Property from the catalogue, and return the Property to the Consignor. All costs of returning the Property to the Consignor will be borne by the Consignor. In the event the Consignor requests the removal and return of the Property prior to the end of the Consignment Period, then in addition to the amounts listed in the preceding sentence, the Consignor shall pay to the upside an administrative handling fee of $25 per item, to cover costs of transporting, storing, cataloguing, photographing the Property in question. Property which is abandoned, returned to the upside or is otherwise designated as unclaimed Property will be disposed of according to the disposal policies related to unclaimed Property.
- Acceptable Use: The Website may be used only for authorized purposes by users who have agreed to this agreement. You must comply with all applicable federal, provincial and local laws in your use of the Website. You must also abide by our acceptable use standards, and any acceptable use policy published by us from time to time. You may not:
- post, input or upload any content that is vulgar, obscene, contains explicit or graphic descriptions or accounts of sexual acts or sexual language of a violent or threatening nature or constitutes child pornography under applicable law;
- threaten bodily harm, destruction of property or otherwise engage in harassment;
- transmit, post, store, link or distribute any threatening, abusive, harassing, defamatory, libelous, deceptive or fraudulent information or information that is invasive of another’s privacy, or infringes another’s rights;
- transmit, post, store, link or distribute material that victimizes, harasses, degrades, threatens to harm or intimidates an individual or group of individuals, including without limitation minors, on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability;
- reverse engineer, decompile or otherwise attempt to decipher any code or any portion of the Website for any purpose;
- use the output of the Website for any purpose other than as permitted under this agreement;
- delete or revise any portion of our Website;
- distribute, sell, lease, transfer, assign, trade, rent, publish or license the Website as a stand-alone service to others;
- engage in linking or framing of any portion of our sites;
- aggregate, scrape, harvest or duplicate any portion of our Website, including any personal or contact information, or use such personal or contact information for any secondary marketing purposes or unsolicited mass e-mail, or any purpose inconsistent with the stated purposes;
- corrupt, falsify or distort any Personal Data or upload, post or submit Personal Data that infringes any copyright, or other intellectual property rights, or offends privacy rights, or otherwise offends the standards set by us from time to time; or
- copy, misuse or duplicate the layout and design of our sites, or the underlying code and database structures, or any of our trade-marks.
- Intellectual Property Rights: You agree that the Website and all object and source-code, trade-marks, intellectual property rights, trade-secrets, and know-how related thereto, are owned by us or our licensors, and you will not contest or challenge such ownership. the upside is a trademark of The Upside Inc. All other company names and logos displayed on our sites may be trade-marks of their respective owners.
- You agree to indemnify us from any and all liabilities, costs, claims and expenses related to any breach or violation of this agreement by you or users of your account, or in connection with (a) the delivery of any counterfeit products by you to us, (b) any breach by you of any representation or warranty, or (c) any other breach by you of this agreement or any other agreement with us.
- Termination Rights:
- By Us: In the event you breach this agreement or any other agreement with us, we may suspend or terminate your account and your access to Website. We may suspend or terminate your account in the event the account is inactive and abandoned by you.
- By You: You may terminate your account and cease use of the Website at any time.
- General Disclaimers: While we strive for accuracy and completeness, we do not provide any guarantee or warranty with respect to the Website. We expressly disclaim any and all liability in connection with our Website of products purchased or sold through the Website. Since some content has been provided by others and/or compiled by us from a variety of sources including third-party providers, it is provided to you “as is” and “as available”. We do not warrant or make any representations of any kind regarding the products purchased or sold through the Website or the use of our Website, in terms of their correctness, accuracy, reliability, or otherwise. The content on this Website or website could include technical inaccuracies or typographical errors. WE ASSUME NO RESPONSIBILITY TO YOU OR ANY THIRD PARTY FOR ANY ERRORS OR OMISSIONS OF ANY KIND IN THE CONTENT, AND DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, AS TO THE PRODUCTS PURCHASED OR SOLD THROUGH THE WEBSITE, AND TO ANY MATTER RELATING TO OUR SITES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES AND/OR CONDITIONS OF NON INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- RELEASE & LIMITATION OF LIABILITY: IN THE EVENT OF AN ALLEGED LOSS OR CLAIM BY YOU, YOU RELEASE AND WAIVE ANY CLAIMS AGAINST US. IN NO EVENT WILL WE BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (A) ARISING OUT OF OR IN CONNECTION WITH THE USE THE WEBSITE, OR THE PERFORMANCE OF THIS SITE OR THE CONTENT AVAILABLE OR REFERRED TO ON THIS SITE, OR ANY OTHER SITE YOU MAY ACCESS THROUGH THIS SITE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, YOU AGREE THAT OUR AGGREGATE LIABILITY SHALL BE LIMITED TO THE LESSER OF THE FOLLOWING AMOUNT: (A) THE SALES AMOUNT OF THE PURCHASED PRODUCT IN THE CASE OF A BUYER, (B) THE AMOUNT OF THE COMMISSION IN THE CASE OF A CONSIGNOR, OR (C) THE AMOUNT OF FIFTY DOLLARS ($50).
- Jurisdiction & Applicable Law: This agreement shall be governed by and construed in accordance with the laws of the Province of Alberta, Canada and the federal laws applicable therein. In the event of any dispute arising under this agreement, you agree to submit to the jurisdiction of the courts in the Province of Alberta, Canada.
- Downtime: The Website may experience temporary downtime as we perform routine maintenance or updates.
- Linked Sites: Links available on our sites may link to third-party websites not maintained or controlled by us and we provide these links for your convenience, and we are not responsible for the contents of any linked site.
- Changes: Changes to this agreement may be made from time to time by us, and the modified form of the agreement will take effect 15 days after posting on our site(s). Continued use of the Website after the effective date will indicate your acceptance of the amended terms. No amendment shall apply to any dispute of which we had actual notice on the date of amendment, or to any dispute which arose prior to the date of amendment. To improve our systems, we reserve the right to change or remove any of our content, functionality or features from the Website, in whole or in part, at our sole discretion, at any time, without notice.
- Miscellaneous: In the event of any amount owing by you to us or amounts for which you are responsible under this agreement, we reserve the right to set off and deduct such amounts from any Commission or other payment owing by us to you. You may not assign or transfer the rights granted to you under this agreement without our prior written consent. We may assign this agreement to a third-party upon written notice to you. This agreement constitutes the entire agreement between us and you with respect to your use of the Website. Any failure by us to insist upon or enforce strict performance of any provision of this agreement shall not be construed as a waiver of any provision or right. If any of the terms and conditions of this agreement are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such determination shall not affect the remaining provisions. The parties have required that this agreement and all related documents be drawn up in English. Les parties ont demandé que cette convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais. This agreement may be agreed to by electronic acceptance.