Terms & Conditions
These terms and conditions of use (‘Platform Terms’) apply to the use of the following interactive platforms provided by Upside Realty Pty Ltd (ACN 619 316 602) and/ or its subsidiaries (‘Upside’) which include the website www.upside.com.au (‘Website’), any Upside mobile application (‘App’), any Upside social media accounts used by Upside from time to time, and software provided on or in connection with the foregoing (together, ‘Upside Platforms’). In these Platform Terms, “we” “us” and “our” refers to Upside and we refer to you as "you", "your", or "User".
In the event that you enter into a signed agency agreement (‘Agency Agreement’) in respect of your Property between you and Upside as required by applicable law, and become a ‘Vendor’ for the purposes of real estate agency and associated services, you will also be subject to the terms and conditions of the Vendor Services Schedule (‘VSS’), available here. The terms of the VSS form part of the Agency Agreement with the relevant licensed Upside entity (‘Upside Agency’) with which the Vendor has contracted in the relevant State. In such case, to the extent that the use of the Upside Platforms includes services that are only available to you once you have signed an Agency Agreement, such features are provided to you by Upside as service provider for the Upside Agency. To avoid doubt, a User is referred to as a ‘Vendor’ under the VSS.
By accessing or using the Upside Platforms, you acknowledge that you have read, understood, and agree to be bound by these Platform Terms. Upside may change all or part of the Platform Terms at any time. If we do, the new Platform Terms will be posted on the Upside Platforms. Your subsequent or continued use of the Upside Platforms will constitute your acceptance of any changes. If you object to any changes to the Platform Terms, your exclusive remedy is to immediately discontinue your use of the Upside Platforms.
1. User Account
1.1 In order to access some of the features of the Upside Platforms you must create an Upside user account (‘User Account’). You must be at least 18 years of age in order to use the Upside Platforms. Registering and creating a User Account is free.
1.2 In order to complete registration of a User Account, you must provide certain information as set out on the registration page. You agree to provide accurate, current and complete information during the registration process, and to update such information to ensure it remains accurate, current and complete.
1.4 On registration of your User Account, you will need to create a username and password. You are solely responsible for the activity that occurs on your User Account (including unauthorised use of your credit card) and you must keep your User Account password secure. You must notify Upside immediately of any breach of security or unauthorised use of your User Account. Upside will not be liable for any losses caused by any unauthorised use of your User Account.
1.5 You acknowledge that Upside reserves the right to change the Upside Platforms; stop providing the Upside Platforms or features of the Upside Platforms, to you or to Users generally; or create usage limits for the Upside Platforms. Upside may temporarily or permanently suspend or terminate access to the Upside Platforms, including your User Account, without notice and liability for any reason, including if in our sole determination you violate any provision of these Platform Terms. All restrictions imposed on you and all disclaimers, indemnities and limitations of liability set out in these Platform Terms will survive termination of your access to the Upside Platforms and Upside Platforms.
1.6 We may elect to send you notices with respect to the Upside Platforms and your User Account by:
- e-mail message to the email address;
- letter to the postal mail address; or
- SMS to the mobile number,
listed in your User Account.
1.7 You must not use the Upside Platforms to (or attempt to) upload, post, transmit or otherwise make available any text, illustrations, photos, audio, video, data or any other material (‘Material’), or do any activity that:
- is not your original work, or which in any way violates or infringes (or could reasonably be expected to violate or infringe) third-party rights of any kind, including without limitation any patent, copyright, moral rights, trade mark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications, registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction;
- contains any information or data or content that you know is not correct and current;
- contains, promotes, or provides information about unlawful activities or conduct;
- could harm, abuse, harass, stalk, threaten or could reasonably be expected to be, defamatory, obscene, offensive, threatening, abusive, pornographic, vulgar, profane, indecent or otherwise unlawful, including Material that racially or religiously vilifies, incites violence or hatred, or is likely to offend, insult or humiliate others based on race, religion, ethnicity, gender, age, sexual orientation or any physical or mental disability;
- may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to any person;
- may create a risk of any other loss or damage to any property;
- may constitute or contribute to a crime or tort;
- includes an image or personal information of another person or persons unless you have their consent;
- impersonates any person or entity;
- poses or creates a privacy or security risk to any person;
- transmits (or authorises the transmission of) unsolicited or bulk electronic messages to anyone, or otherwise constitutes an infringement of the Spam Act 2003 (Cth);
- solicits money, passwords or personal information from any person;
- you know or suspect (or ought reasonably to have known or suspected) to be false, misleading or deceptive;
- contains viruses, or other computer codes, files or programs designed to interrupt, limit or destroy the functionality of other computer software or hardware;
- mines data or conducts automated searches on the Upside Platforms or the data or content on the Upside Platforms, whether through the use of additional software or otherwise;
- incorporates any of the data or content on or accessed via the Upside Platforms with any other data or content, including but not limited to advertising or promotional material;
- creates links from the Upside Platforms to any other website on the internet, or frames or mirrors the Website, its content or data without our prior written consent;
- tampers with, hinders the operation of, or makes unauthorised modifications to the Upside Platforms or any data or content on the Upside Platforms; or
- is in breach of any applicable laws or regulations.
1.8 Upside reserves the right (but has no obligation) to:
- review, modify, reformat, reject or remove any Material which you upload, post, transmit or otherwise make available (or attempt to upload, post, transmit or otherwise make available) on the Upside Platforms that, in our opinion, violates the Platform Terms or otherwise has the potential to harm, endanger or violate the rights of any person; and
- monitor use of the Upside Platforms and store or disclose any information that we collect, including but not limited to in order to investigate compliance with the Platform Terms or for the purposes of any police investigation or governmental request.
1.9 Upside reserves the right, in its sole discretion, to assert legal action with respect to Material or use of the Upside Platforms, that Upside reasonably believes is or might be in violation of these Platform Terms or any Upside policies. Upside’s failure or delay in taking such actions does not constitute a waiver of its rights to enforce these Platform Terms.
1.10 Upside will not be responsible for, and accepts no liability with respect to, any Material uploaded, posted, transmitted or otherwise made available on the Upside Platforms or posted on a third party platform about Upside and/ or the Upside Platforms by any User or any other person or third party other than us. For the avoidance of doubt, we will not be taken to have uploaded, posted, transmitted or otherwise made Material available on the Upside Platforms simply by facilitating others to post, transmit or otherwise make Material available. Furthermore, we do not endorse any opinion, advice or statement made by any User or any other person or entity other than us.
2. Third party links and data
2.1 The Upside Platforms may link to third party websites or social media pages which are not owned or operated by Upside. These links are provided for your convenience only. We do not endorse or approve the views, data or content of these third party websites or social media accounts and will not be held liable for any loss or damage suffered as a result of your use or the views, data or content contained therein.
2.2 The Upside Platforms may also contain text, illustrations, photos, audio, video, data or any other material provided by third parties (‘Third Party Content’). We do not have a practice of monitoring or making enquiries about Third Party Content. We are not responsible for, do not endorse and do not make representations, either expressly or impliedly, concerning Third Party Content. Third party Content does not represent the views of Upside. You rely on Third Party Content at your own risk.
3.1 Payments will be enabled by Upside via a third party service provider (‘Payment Provider’) to provide payment services and act as a payment facilitator, subject to any terms of the Payment Provider that apply to the preferred payment method designated in your User Account.
3.3 Upside does not handle or hold your financial information, and as a consequence is not required to maintain PCI compliance. After the transaction has been processed you will receive a confirmation and receipt of payment.
3.4 You may be able to use the Upside Platform to order a free approximate market value report (‘AVMR’) to obtain an approximate guide of the current market value of your property. The AVMR is provided by a third party without a physical inspection of the relevant property and is an estimate only of the approximate market value of the property. The AVMR, is provided on an “as is” basis and Upside does not, to the extent permitted by the law, give or make any express or implied warranties, representations, conditions, statements or endorsements whatsoever regarding the accuracy of the AVMR. You accept that the accuracy of the AVMR is dependent on the information you and other third parties provide to Upside about your property and it remains your sole risk and responsibility to evaluate the accuracy.
4. Limitation of liability
4.1 To the maximum extent permitted by applicable law, Upside and its directors, officers, employees, contractors, subsidiaries, agents, licensors, managers and affiliated companies will not be liable for any direct, indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, revenue, goodwill, opportunity, business, data or other intangible losses, whether arising under contract, statute, negligence or other tort or otherwise, that result from the use of, or inability to use, the Upside Platforms including the data and content provided on or through the Upside Platforms. Under no circumstances will Upside be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorised access or use of the Upside Platforms.
4.2 Certain legislation, including the Australian Consumer Law may imply warranties or conditions or impose obligations upon us which cannot be excluded, restricted or modified except to a limited extent. These Platform Terms must be read subject to these statutory provisions. If these statutory provisions apply, to the extent to which Upside are able to do so, the liability of Upside and its affiliates, agents, directors, employees, suppliers, or licensors under those provisions will be limited, at its option to supplying the relevant Upside Platforms again; or the total amount of fees paid by you to us for Upside Platforms.
4.3 To the maximum extent permitted by applicable law, Upside assumes no liability or responsibility for:
- any errors, mistakes, or inaccuracies of content or data;
- any personal injury or property damage, of any nature whatsoever, resulting from your access to or use of the Upside Platforms;
- any unauthorised access to or use of our secure servers and/or any and all personal information stored therein;
- any interruption or cessation of transmission to or from the Upside Platforms;
- any bugs, viruses, trojan horses, or the like that may be transmitted to or through our Upside Platforms by any third party;
- any errors or omissions in any content or data, or for any loss or damage incurred as a result of the use of any content or data posted, emailed, transmitted, or otherwise made available through the Upside Platforms; and/or
- any Material or the defamatory, offensive, or illegal conduct of any third party.
5.1 Subject to any statutory guarantees that cannot be lawfully excluded, Upside expressly excludes all warranties, guarantees, conditions and representations, whether express or implied, in relation to any Upside Platforms supplied or provided by us (including as to performance, quality or fitness for use or purpose, or any warranty or representation that the products will be free from defects).
5.2 To the maximum extent permitted by applicable law:
- all statutory and implied guarantees, warranties and conditions of any kind in connection with the Upside Platforms including without limitation, Third Party Content, provided on or through the Upside Platforms are expressly disclaimed;
- Upside do not warrant that your access to the Upside Platforms will be uninterrupted or that the Upside Platforms will operate error free, that any defects will be corrected, or that the Upside Platforms and their servers are free of computer viruses, trojans, spyware and other harmful material;
- Upside do not warrant that we will be able to prevent any illegal, harmful, unauthorised or inappropriate use, modification or alteration of the Upside Platforms, or that we will give you notice of such use, modification or alteration;
- Upside do not warrant that we will be able to prevent any illegal, harmful, unauthorised, incorrect or inappropriate use, modification or alteration of any content or data by third parties that is provided by Upside through the Upside Platforms or taken from data or content contained therein;
- Upside do not warrant or make any representations about the correctness, accuracy, timeliness, completeness, reliability, quality or otherwise of the Upside Platforms or the information contained therein. Your use of the Upside Platforms and the information contained therein at your own risk; and
- the Upside Platforms and the information contained therein are provided on an “as is” and “as available” basis without any warranties of any kind. We may change the Upside Platforms or limit or terminate your access to the Upside Platforms at any time without notice.
As a condition of use of the Upside Platforms, you, at your sole cost and expense, will defend, indemnify and hold Upside, its affiliated and related entities, and any of their respective officers, directors, agents and employees, harmless from and against any third party claims, lawsuits, actions, proceedings or investigations from and against any fees, costs, sanctions, penalties, damages, losses or expenses (including but not limited to legal fees and costs) and third party claims incurred that we, or any of those parties incurs or suffers as a result of your breach of these Platform Terms, your use or access of Upside Platforms, any violation of any applicable law by you, or any other action, inaction or omission on your part relating to the Upside Platforms.
8. Intellectual property
8.1 You acknowledge that Upside owns all right, title, and interest, including all intellectual property rights, in the Upside Platforms including the trade marks, trade dress, service marks, trade name and logos, and any content, data, software, technology and programming code, tools, or business methods used by Upside to develop, promote, market, sell, generate, or distribute the Upside Platforms and otherwise perform under these Platform Terms (collectively the ‘Upside IP’). Except as explicitly provided herein, nothing in these Platform Terms will be deemed to create a license, right, title or interest in or under any Upside IP, and you agree not to sell, license, rent, modify, distribute, transfer, download, display, copy, reproduce, transmit, publicly display, translate, reverse engineer, decompile or disassemble publicly perform, publish, adapt, edit or create derivative works from any Upside IP without the express written consent of Upside. Use of the Upside IP for any purpose not expressly permitted by these Platform Terms is strictly prohibited.
8.2 When you make text, illustrations, photos, audio, video, data or other material (‘User Content’) available on or through the Upside Platforms or any Upside promotional campaigns, you hereby:
- warrant that you have all necessary rights in respect of the same; and
- grant to Upside a worldwide, irrevocable, perpetual (or for the term of the protection), non-exclusive, transferable, royalty-free licence, with the right to sublicense, to use, view, copy, adapt, translate, modify, distribute, licence, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such User Content on, through, by means of or to promote or market the Upside Platforms and Upside Platforms. Upside does not claim any ownership rights in any such User Content, and nothing in these Platform Terms will be deemed to restrict any rights that you may have to use and exploit any such User Content.
8.3 Trade marks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the Upside Platforms are used for identification purposes only and may be the property of their respective owners.
8.4 You shall not use or display the Upside IP in any way that states or implies that Upside has endorsed or approved your products or services. Any use of Upside IP shall comply with any Upside usage guidelines posted on the Upside Platforms.
8.5 All goodwill and improved reputation in respect of, and associated with, the Upside IP will vest to the sole benefit of Upside.
8.6 You may choose to or we may invite you to submit comments or ideas about the Upside Platforms, including without limitation about how to improve the Upside Platforms (‘Ideas’). The Ideas are not User Content as described above. Further, by submitting any Idea, you agree that your disclosure is gratuitous, unsolicited, without restriction and will not place Upside under any fiduciary or other obligation, and that we are free to use the Idea without any compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Upside does not waive any rights to use similar or related ideas previously known to Upside, or developed by its employees, or obtained from sources other than you.
9.1 If any of the provisions set out in these Platform Terms are determined to be void or unenforceable then that provision must be read down to avoid that result, or if the provision cannot be read down then it must be severed and the rest of the Platform Terms will remain in full force and affect.
9.2 The failure of Upside to enforce any provision of these Platform Terms at any time or for any period of time will not be construed to be a waiver of such provision or of the rights of Upside to enforce each and every provision of these Platform Terms. A waiver of a power or right shall be ineffective unless in writing and executed by Upside.
9.3 These Platform Terms are governed by the laws of New South Wales, Australia. You and Upside submit to the exclusive jurisdiction of the courts of New South Wales, Australia.