Terms and Conditions of Service
For The Selling Company, Inc. doing business as FLYP
Please read these Terms and Conditions of Service (“Terms”) carefully as they contain important information about your legal rights, remedies, and obligations. By accessing or using the Flyp Platform, you agree to comply with and be bound by these Terms.
ARBITRATION NOTICE: Section 4.13 of these Terms contains an arbitration clause and class action waiver that applies to all Flyp Clients. It affects how disputes with Flyp are resolved. By accepting these Terms, you agree to be bound by this arbitration clause and class action waiver. Please read it carefully.
These Terms constitute a legally binding agreement ("Agreement") between you and The Selling Company, Inc., a Delaware corporation located at 156 Second Street, San Francisco CA 94105 and doing business in California as FLYP (“Flyp” or “we” or “us”) governing your access to and use of the Flyp website, including any subdomains thereof, and any other websites through which Flyp makes its services available (collectively, "Site"), our mobile, tablet and other smart device applications, and application program interfaces (collectively, "Application") and all associated services (collectively, "Flyp Services"). The Site, Application and Flyp Services together are hereinafter collectively referred to as the “Flyp Platform”.
1. TERMS AND CONDITIONS ALL USERS
1.1 The Flyp Platform is an online marketplace that enables registered users (“Clients”) to sell high-quality used and new clothing and accessories (“Lots”) by using the services of professional resellers (“Pro Sellers”) and for Clients and Pro Sellers to communicate and transact directly with each other.
1.2 As the provider of the Flyp Platform, Flyp does not own, create, sell, resell, provide, control, manage, offer, deliver, or supply any Lots, nor is Flyp a buyer, reseller, broker, wholesaler, manufacturer, or retailer. Clients alone are responsible for the Lots they submit and properly and honestly listing their Lots on the Flyp Platform. When a Client accepts an application made by a Pro Seller to sell the Client’s Lot, they are entering into a contract directly with each other. Flyp is not and does not become a party to or other participant in any contractual relationship between Client and Pro Seller. Flyp is not acting as an agent in any capacity for any Client or Pro Seller.
1.3 Flyp has no control over and does not guarantee (i) the existence, quality, safety, suitability, accuracy, quality, or legality of any Lot, or (ii) the truth or accuracy of any Lot uploaded to the Flyp Platform, or (iii) the safe transport of Lots, or (iv) the performance or conduct of any Client, Pro Seller, or third party. You should always exercise due diligence and care when deciding the items to sell in your Lot, which Pro Seller application you choose, and your shipping choices.
1.4 To promote the Flyp Platform and to increase the exposure of Flyp, Lot and Pro Seller information and other content may be displayed on other websites, in applications, within emails, and in online and offline advertisements.
1.5 The Flyp Platform may contain links to third-party websites or resources (“Third-Party Services”). Such Third-Party Services may be subject to different terms and conditions and privacy practices. Flyp is not responsible or liable for the availability or accuracy of such Third-Party Services, or the content, products, privacy practices, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement by Flyp of such Third-Party Services.
1.6 Due to the nature of the Internet, Flyp cannot guarantee the continuous and uninterrupted availability and accessibility of the Flyp Platform. Flyp may restrict the availability of the Flyp Platform or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the Flyp Platform. Flyp may improve, enhance, and modify the Flyp Platform and introduce new Flyp Services from time to time.
1.7 User verification on the Internet is difficult and we do not assume any responsibility for the confirmation of any Client’s or Pro Seller’s identity or trustworthiness. Notwithstanding the above, for transparency and fraud prevention purposes, and as permitted by applicable laws, we may, but have no obligation to (i) ask Pro Sellers and Clients to provide a form of government identification or other information or undertake additional checks designed to help verify the identities or backgrounds, and (ii) screen Pro Sellers and Clients against third party databases or other sources and request reports from service providers.
1.8 The access to or use of certain areas and features of the Flyp Platform may be subject to separate policies, standards, or guidelines, or may require that you accept additional terms and conditions, before you can access the relevant areas or features of the Flyp Platform. If there is a conflict between these Terms and terms and conditions applicable to a specific area or feature of the Flyp Platform, the latter terms and conditions will take precedence with respect to your access to or use of that area or feature, unless specified otherwise in the latter terms and conditions.
1.9 If you access or download the Application from the Apple App Store, you agree to Apple’s Licensed Application End User License Agreement. If you access or download the Application from the Google Play store, you agree to Google’s Licensed Application End User License Agreement. Some areas of the Flyp Platform may implement Google Maps/Earth mapping services, including Google Maps API(s). Your use of Google Maps/Earth is subject to the Google Maps/Google Earth Additional Terms of Service.
1.10 Flyp requires that all communications between Client and Pro Seller be done via the Application’s chat function (“Chat”). Flyp’s customer service team will not be able to help resolve issues pertaining to any Lot that is not discussed exclusively in the Chat.
1.11 We may decide to offer incentives, discounts, and/or other promotions at our discretion and such offerings may be subject to additional terms and conditions.
1.12 Unsold Items Policy. If a Lot does not sell in 90 days, Pro Seller and Client may decide (using Chat) upon any of the following actions:
Drop prices and continue selling the items (recommended).
Pro Seller may make an offer to buy the remaining items in the Lot.
Pro Seller may mail the item(s) back to the client (for a fee).for a limited time, Flyp will cover return postage).
Or, Pro Seller may donate the item(s) on the Client’s behalf under their name.
1.13 Flyp Protection Policy. In the unlikely event that a Pro Seller fails to honor the Unsold Items Policy, Flyp customer service specialists will help resolve the issue.
1.14. Pro Sellers and Clients are responsible for being familiar with and adhering to all Flyp policies found at www.joinflyp.com/faqs. Failure to do so will negate the Flyp Protection Policy and may cause you to incur additional shipping costs.
2. ADDITIONAL TERMS FOR CLIENTS
2.1 In order to access and use the Flyp Platform or register an Flyp Account you must be (i) an individual at least 18 years old or a duly organized, validly existing business, organization or other legal entity in good standing under the laws of the country you are established, (ii) and able to enter into legally binding contracts, and (iii) you must have a valid shipping address in the contiguous United States.
2.2 When creating a Lot through the Flyp Platform you must (i) provide complete and accurate information about your Lot items (including description, name brand, condition), (ii) disclose any rips, tears, stains, imperfections, and the like and (iii) provide any other pertinent information requested by the Pro Seller. You are responsible for the accuracy of your Lot information. Flyp may restrict your use of the Services or cancel your account if Flyp receives complaints about the quality of your Lots.
2.3 Pictures, animations, or videos (collectively, "Images") used in your Lot must accurately reflect the quality and condition of your Lot. Flyp reserves the right to require that Lot postings contain a minimum number of Images of a certain format, size, and resolution.
2.4 All Lots must have a minimum of five (5) items.
2.5 The placement and ranking of Lots in search results on the Flyp Platform may vary and depend on a variety of factors, such as Pro Seller search parameters and preferences, Pro Seller requirements, number and quality of Images, items in the Lot, reviews and ratings, and/or type of Lot. Flyp makes no warranties or representations regarding the ranking of any Lot in search results.
2.6 When you accept Pro Seller’s application, you are entering into an agreement with the Pro Seller. You are required to provide the Lot to the Pro Seller as described in your listing when the application was accepted. You also agree to pay the applicable fees and taxes on the income generated from the sale of your Lot.
2.7 You represent and warrant that any listing you post for the sale of your Lot belongs to you and you have the legal right to sell it.
2.8 Once Client has accepted a Pro Seller’s proposal, Client agree to not post Lots or items from any Lot for sale on any other marketplace, whether public or private, online or otherwise, and to remove any such existing posting in order to enable the Pro Seller to use their expertise to negotiate the best sales price.
2.9 When a Pro Seller sells an item in your Lot, all information including date of sale, price of item, sales tax, and shipping cost, will be avilable on the Platform. Your Pro Seller will collect payment for the item prior to shipping to the Buyer. Your Pro Seller is responsible for all sales expenses, including posting sales ads, the cost of shipping to Buyer, and sales tax. Upon receipt of payment from the Buyer (which may take up to 30 days in some cases) your Pro Seller will send you the Sales Proceeds (defined below) via the Platform.
2.10 For a short time, Flyp will not deduct any payment for its services as a marketplace. At some time in the future, we will deduct a Service Fee for each sale, and will send updates to all Clients and Pro Sellers at least seven (7) days prior to that time.
2.11 The amount of the Sale minus shipping, sales tax, and Commission (“Sales Proceeds) will be remitted to you in accordance with the payment information registered with your Account.. You must have an active, valid Flyp account and have provided accurate banking or financial information to Flyp (“Payment Information”) in order to receive Sales Proceeds via the Platform.
2.12 You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. It is your responsibility to ensure that your Payment Information is accurate, complete, and up-to-date. We will not be responsible for the failure to complete the remittance of any Sales Proceeds to you if you provide inaccurate or incomplete Payment Information.
2.13 Your Pro Seller will only remit Sales Proceeds based on amounts actually collected and received by Pro Seller .
Clients and Pro Sellers agree to use the Platform’s payment method exclusively for all transactions. Failure to do so may result in suspension of your account and collection of unpaid Service Fees.
2.14 Client Account Registration
2.14.1 You must register an account ("Flyp Account") to access and use certain features of the Flyp Platform, such as listing a Lot for sale. Registration for a Flyp Account is free. If you are registering an Flyp Account for a business, organization, or other legal entity, you represent and warrant that you have the authority to legally bind that entity and grant us all permissions and licenses provided in these Terms.
2.14.2 You can register a Flyp Account using an email address and creating a password, or through your account with certain third-party social networking services, such as Facebook or Google ("SNS Account"). You have the ability to disable the connection between your Flyp Account and your SNS Account at any time, by accessing the "Settings" section of the Flyp Platform.
2.14.3 You must provide accurate, current, and complete information during the registration process and keep your Flyp Account and public Flyp Account profile page information up-to-date at all times.
2.14.4 You may not register more than one (1) Flyp Account unless Flyp authorizes you to do so. You may not assign or otherwise transfer your Flyp Account to another party.
2.14.5 You are responsible for maintaining the confidentiality and security of your Flyp Account credentials and may not disclose your credentials to any third party. You must immediately notify Flyp if you know or have any reason to suspect that your credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorized use of your Flyp Account. You are liable for any and all activities conducted through your Flyp Account, unless such activities are not authorized by you and you are not otherwise negligent (such as failing to report the unauthorized use or loss of your credentials).
2.15 Cancellations. If a Client cancels a listing after Client has accepted the Pro Seller’s proposal, and shipped the Lot to Pro Seller, but before the Lot has been sold, Client is responsible for the cost of shipping all Lot items back to Client.
3. PRO SELLER TERMS
3.1 If you choose to use the Flyp Platform as a Pro Seller, your relationship with Flyp is limited to the use of the Platform as a marketplace to pursue your business of selling items on behalf of third parties for your personal benefit.
3.2 Pro Sellers must comply with all applicable laws pertaining to your business in your local jurisdiction, including acquiring such licenses and permits as are required.
3.3 Flyp may make access to and use of the Flyp Platform, or certain areas or features of the Flyp Platform, subject to certain conditions or requirements, such as completing a verification process, meeting specific quality or eligibility criteria, meeting ratings or reviews thresholds, or complaint history.
3.4 Requirements to be a Pro Seller.
3.4.1. Pro Sellers are responsible for being familiar and complying with all laws and regulations that apply to their business in their jurisdiction.
3.4.2 To apply to become a Pro Seller, you must provide to Flyp:
A completed application, including:
Your name, email address, and phone number, and shipping address;
A letter of introduction describing your experience as a seller;
Dollar sales amount over a time period of no less than 6 months;
Links to your selling profile(s); and
A headshot to be used on your Pro Seller profile; and
a valid and current government-issued identification.
You may be personally contacted by us. We will vet your application. Any broken links, falsifications, identity theft, or incorrect information will result in the denial of your application.
3.4.3 Additional requirements:
(a) You must ship Lots from the shipping address provided.
(b) You must store Lots in an area free of pets and smoking, and that has sufficient security and temperature control.
(d) You agree to personally sell the Lots. You will not engage third-party services, with or without pay, for the purpose of selling the Lots. You are responsible for all liabilities, costs, and expenses related to selling the Lots, including shipping to Buyers and service charges by third party payment processors. You are responsible for all costs pertaining to using the Services, i.e., a mobile device, internet usage, etc.
(e) In an effort to maintain and manage Client expectations, we provide you with best practices and guidelines at www.joinflyp.com/pro-faqs. You agree to read the FAQs, understand them, follow them, and contact Flyp if you have any questions or concerns. Failure to do so may result in the loss of your Flyp account.
(f) FLYP will provide shipping labels for a small fee, or you may elect to ship using your own carrier. You are encouraged to ship with tracking and insurance. You are responsible for all shipping to Buyers.
(h) You acknowledge and agree that we do not have any obligation to pay you any monies – in cash, in kind, or otherwise. You are responsible for collecting payment from Buyers, and remitting such payment to the Client minus your Commission, sales tax, and shipping.
(j) You agree to comply with all commitments you make when you send an application to a Client, including the estimated time to sell, estimated sale price for the Lot, your Commission, and your payments to Client.
(k) You are solely responsible for calculating, collecting, and remitting all payments and applicable taxes, and completing and filing all necessary reports that may be applicable to you and your use of the Services. We are not your tax or legal advisor and we have no obligation to calculate, collect, and remit taxes or other fees and payments, or make any filings or submit reports, on your behalf. You are encouraged to seek the advice of legal, tax, or other professional counsel as regards your use of the Services as a professional re-seller.
3.5 Terms applicable to all Lots
3.5.1 You are solely responsible for setting the percentage of the sales price that you will deduct as your fee (“Commission”). Your Commission is calculated from the sales price alone if the Buyer paid for shipping; Commission is calculated from the sales price minus the shipping cost if Pro Seller offered free shipping to the Buyer. Once a Client accepts your application, you may not request that the Client pays a higher Commission.
3.5.2 Pro Sellers must keep accurate records of all sales transactions within the Platform and provide additional proof of such to Client and/or Flyp upon request.
3.5.3 Any terms in your application must not conflict with these Terms.
3.6 When your application is accepted by a Client, you are entering into an agreement with the Client. You have no requirement to perform until the Client sends you the Lot. Flyp will provide a shipping label to Client for a small fee. Upon receipt of the Lot, it is your responsibility to check the items and confirm that they conform to the Lot listing. If there are any items missing or discrepancies from the Lot listing, please contact the Client immediately via the Chat. If you are unable to resolve the issue, please contact us at firstname.lastname@example.org.
3.6.1 Until Pro Seller actually receives a Lot, Client bears the risk of loss. Upon receipt of the Lot, Pro Seller bears the risk of loss. Example: If Client ships a Lot to Pro Seller and an item is damaged in shipping, prior to receipt, Client can file a claim with the shipping company. If Pro Seller sends an item to a Buyer that is never received, Pro Seller will need to file a claim with the shipping service, and potentially refund Buyer and/or Client.
3.7 Flyp recommends that Pro Sellers obtain appropriate insurance for their business. If working out of your home, homeowners insurance or renters insurance is highly recommended in order to protect the Lots that will be stored and sold from your home. Whether home-based or commercial, please review your insurance policy carefully, and in particular make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the loss of Lot items due to fire, theft, flood, loss in transit, and the like.
3.8 As a Pro Seller, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who participate in your business.
3.9.1 As a Pro Seller you are solely responsible for determining your obligations to report, collect, remit, or include in your Commission and any applicable sales taxes ("Taxes").
3.9.2 You understand that any appropriate governmental agency, department and/or authority ("Tax Authority") where your business is located may require Taxes to be collected from Buyers and to be remitted to the respective Tax Authority.
3.9.3 Pro Sellers are responsible for collecting and remitting any sales taxes, as required by law.
4. ADDITIONAL TERMS APPLICABLE TO CLIENTS AND PRO SELLERS
4.1.1 Currently, Flyp charges no fees for its services. In the future, Flyp may charge fees to Pro Sellers ("Pro Seller Fees") and/or Clients ("Client Fees") (collectively, "Service Fees") in consideration for the use of the Flyp Platform.
4.1.2 Any applicable Service Fees (including any applicable Taxes) will be displayed to a Pro Seller and/or Client. Flyp reserves the right to change the Service Fees at any time, and will provide Clients and Pro Sellers at least seven (7) days’ notice of any fee changes before they become effective. Such fee changes will not affect any applications accepted by a Client prior to the effective date of the fee change.
4.1.3 You are responsible for paying any Service Fees that you owe to Flyp. The applicable Service Fees (including any applicable Taxes) are collected by Flyp. Flyp will deduct its Service Fees before Sales Proceeds are paid to the Client.
4.1.4. Flyp Service Fees are non-refundable.
4.2 Flyp reserves the right to modify these Terms at any time in accordance with this provision. If we make non-material, editorial changes to these Terms, we will post the revised Terms on the Flyp Platform and update the “Last Updated” date at the top of these Terms. If we make material changes, we will provide you with notice of the modifications via the Application at least seven (7) days before the date they become effective. If you disagree with the revised Terms, you may terminate this Agreement in writing with immediate effect. We will inform you about your right to terminate the Agreement in the notification email. If you do not terminate your Agreement before the date the revised Terms become effective, your continued access to or use of the Flyp Platform will constitute acceptance of the revised Terms.
4.3.1 The Flyp Platform enable Clients and Pro Sellers to (i) create, upload, post, send, receive and store Content, such as text, photos, audio, video, or other materials and information on or through the Flyp Platform ("Provided Content"); and (ii) access and view Provided Content and any Content that Flyp itself makes available on or through the Flyp Platform, including proprietary Flyp content and any Content licensed or authorized for use by or through Flyp from a third party ("Flyp Content" and together with Provided Content, "Collective Content").
4.3.2 The Flyp Platform, Flyp Content, and Provided Content may in its entirety or in part be protected by copyright, trademark, and/or other laws of the United States and other countries. You acknowledge and agree that the Flyp Platform and Flyp Content, including all associated intellectual property rights, are the exclusive property of Flyp and/or its licensors or authorizing third-parties. You will not remove, alter, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Flyp Platform, Flyp Content or Provided Content. All trademarks, service marks, logos, trade names, and any other source identifiers of Flyp used on or in connection with the Flyp Platform and Flyp Content are trademarks or registered trademarks of Flyp in the United States and abroad. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the Flyp Platform, Flyp Content, and/or Collective Content are used for identification purposes only and may be the property of their respective owners.
4.3.3 You will not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Flyp Platform or Collective Content, except to the extent you are the legal owner of certain Provided Content or as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Flyp or its licensors, except for the licenses and rights expressly granted in these Terms.
4.3.4 Subject to your compliance with these Terms, Flyp grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to (i) download and use the Application on your personal device(s); (ii) access and view any Collective Content made available on or through the Flyp Platform and accessible to you, solely for your personal and non-commercial use; and (iii) access, view, and share Collective Content for the limited commercial purpose of the sale of a Client’s Lot by a Pro Seller.
4.3.6 You are solely responsible for all Provided Content that you make available on or through the Flyp Platform. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Provided Content that you make available on or through the Flyp Platform or you have all rights, licenses, consents and releases that are necessary to grant to Flyp the rights in and to such Provided Content, as contemplated under these Terms; and (ii) neither the Provided Content nor your posting, uploading, publication, submission or transmittal of the Provided Content or Flyp's use of the Provided Content (or any portion thereof) as contemplated under these Terms will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
4.3.7 You will not post, upload, publish, submit or transmit any Provided Content that: (i) is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive; (ii) is defamatory, libelous, obscene, pornographic, vulgar or offensive; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening or promotes violence or actions that are threatening to any other person or animal; (v) promotes illegal or harmful activities or substances; or (vi) violates any other Flyp policy. Flyp may, without prior notice, remove or disable access to any Provided Content that Flyp finds to be in violation of applicable law, these Terms or Flyp’s then-current policies or standards, or otherwise may be harmful or objectionable to Flyp, website visitors, Clients, Pro Sellers, third parties, or property.
4.3.8 Flyp respects copyright law and expects its Clients and Pro Sellers to do the same. If you believe that any content on the Flyp Platform infringes copyrights you own, please notify us at email@example.com.
4.4. Modifications, Cancellations and Refunds, Resolution Center
4.4.1 Pro Sellers and Clients are responsible for any modifications to a Lot listing or application ("Modifications"), and agree to pay any additional Fees and/or Taxes associated with such Modifications.
4.4.2 Flyp may decide, at its sole discretion, that it is necessary to cancel a listing or Lot. This may be for (i) where Flyp believes in good faith that the item is not authentic, or (ii) either the Client or Pro Seller has not followed Flyp Policies; (iii) Flyp determines that the item is inappropriate for sale for reasons including but not limited to: low demand, exceedingly high value, exceedingly low value, poor condition, illegality, or immorality.
4.4.3 If a Client is ever refunded, Flyp Payments will be entitled to recover the amount of any such refund from the Pro Seller, including by subtracting such refund amount out from any future Commissions due to the Pro Seller.
4.5. Ratings and Reviews
4.5.1 Clients and Pro Sellers can leave a public review and submit a star rating about each other. Ratings or reviews reflect the opinions of individual Clients and Pro Sellers and do not reflect the opinion of Flyp. Ratings and reviews are not verified by Flyp for accuracy and may be incorrect or misleading.
4.5.2 Ratings and reviews by Clients and Pro Sellers must be accurate and may not contain any offensive or defamatory language.
4.5.3 Clients and Pro Sellers are prohibited from manipulating the ratings and reviews system in any manner, such as instructing a third party to write a positive or negative Review about another Client or Pro Seller.
4.5.4 Ratings and reviews are part of a Pro Seller’s public profile and may also be surfaced elsewhere on the Flyp Platform together with other relevant information such as number of Lots sold, average response time, availability, and other information.
4.6.1 All Parties agree to cooperate with and assist Flyp in good faith, and to provide Flyp with such information and take such actions as may be reasonably requested by Flyp, in connection with complaints or claims made by Clients or Pro Sellers relating to the sale of Lots.
4.6.2 If you have a complaint, you agree to contact Flyp immediately at firstname.lastname@example.org. Flyp is committed to addressing all complaints individually and will respond to each complaint as soon as possible.
4.7. Prohibited Activities
4.7.1 You are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Flyp Platform. In connection with your use of the Flyp Platform, you will not and will not assist or enable others to:
breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or our Terms or policies;
use the Flyp Platform for any commercial or other purposes that are not expressly permitted by these Terms or in a manner that falsely implies Flyp endorsement, partnership or otherwise misleads others as to your affiliation with Flyp;
use the Flyp Platform in connection with the distribution of unsolicited commercial messages ("spam");
list, as a Client, any item or Lot that you do not personally own;
contact a Client or Pro Seller, within or outside of the Flyp Platform, for any purpose other than asking a question related to the Flyp Platform or a Lot, including, but not limited to, recruiting or otherwise soliciting any Client or Pro Seller to join third-party services, applications or websites, without our prior written approval;
use the Flyp Platform to list or sell a Lot independent of the Flyp Platform, to circumvent any Service Fees or for any other reason;
request, accept or make any payment for Fees outside of the Flyp Platform or Flyp Payments. If you do so, you acknowledge and agree that you: (i) would be in breach of these Terms; (ii) accept all risks and responsibility for such payment, and (iii) hold Flyp harmless from any liability for such payment;
discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age, or sexual orientation, or otherwise engage in any violent, harmful, abusive, or disruptive behavior;
use, display, mirror or frame the Flyp Platform , or any individual element within the Flyp Platform, Flyp's name, any Flyp trademarks, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Flyp Platform, without Flyp's express written consent;
dilute, tarnish or otherwise harm the Flyp brand in any way, including through unauthorized use of Collective Content, registering and/or using Flyp or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to Flyp domains, trademarks, taglines, promotional campaigns or Collective Content;
use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with the Flyp Platform for any purpose;
avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by Flyp or any of Flyp's providers or any other third party to protect the Flyp Platform;
attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Flyp Platform;
take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the Flyp Platform;
export, re-export, import, or transfer the Application except as authorized by United States law, the export control laws of your jurisdiction, and any other applicable laws; or
violate or infringe anyone else’s rights or otherwise cause harm to anyone.
4.7.2 You acknowledge that Flyp has no obligation to monitor the access to or use of the Flyp Platform by any Client or Pro Seller or to review, disable access to, or edit any Provided Content, but has the right to do so to (i) operate, secure and improve the Flyp Platform (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (ii) ensure Pro Sellers’ and Clients’ compliance with these Terms; (iii) comply with applicable law or the order or requirement of a court, law enforcement or other administrative agency or governmental body; (iv) respond to Provided Content that it determines is harmful or objectionable; or (v) as otherwise set forth in these Terms. Pro Sellers and Clients agree to cooperate with and assist Flyp in good faith, and to provide Flyp with such information and take such actions as may be reasonably requested by Flyp with respect to any investigation undertaken by Flyp or a representative of Flyp regarding the use or abuse of the Flyp Platform.
4.7.3 If you feel that any Pro Seller or Client you interact with, whether online or in person, is acting or has acted inappropriately, including but not limited to anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of stealing from you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to Flyp by contacting us with your police station and report number (if available). You agree that any report you make will not obligate us to take any action (beyond that required by law, if any).
4.8. Term and Termination, Suspension, and other Measures
4.8.1 This Agreement shall be in perpetuity until such time when you or Flyp terminate the Agreement in accordance with this provision.
4.8.2 You may terminate this Agreement at any time by sending us an email or cancelling your account. If you cancel your Flyp Account as a Pro Seller, any Lots will be automatically cancelled and you are responsible for returning all unsold Lots to Clients at your own expense. If you cancel your Flyp Account as a Client, any listed but unsold Lots will be automatically cancelled. Any funds remaining in your Flyp account will be distributed within ten (10) days of your termination or cancellation to the payment method you have provided.
4.8.3 Without limiting our rights specified below, Flyp may terminate this Agreement for convenience at any time by giving you seven (7) days' notice via email to your registered email address.
4.8.4 Flyp may immediately, without notice, terminate this Agreement and/or stop providing access to the Flyp Platform if (i) you have materially breached your obligations under these Terms, the Payments Terms, our policies, (ii) you have violated applicable laws, regulations or third party rights, or (iii) Flyp believes in good faith that such action is reasonably necessary to protect the personal safety or property of Flyp, its Pro Sellers and Clients, or third parties (for example in the case of fraudulent behavior of a Client or Pro Seller).
4.8.5 In addition, Flyp may take any of the following measures (i) to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body, or if (ii) you have breached these Terms, the Payments Terms, our policies, applicable laws, regulations, or third party rights, or (iii) you have provided inaccurate, fraudulent, outdated or incomplete information during the Flyp Account registration, Pro Seller application, listing Lots, or thereafter, (iv) you and/or your Lots or at any time fail to meet any applicable authenticity, quality, or eligibility criteria, (v) you have repeatedly received poor ratings or reviews or Flyp otherwise becomes aware of or has received complaints about your performance or conduct, (vi) you have repeatedly cancelled Lots or failed to sell Lots without a valid reason, or (vii) Flyp believes in good faith that such action is reasonably necessary to protect the personal safety or property of Flyp, its Pro Sellers and Clients, or third parties, or to prevent fraud or other illegal activity:
refuse to publish any Lots, ratings, reviews, or other Provided Content;
cancel any pending or confirmed Lots;
limit your access to or use of the Flyp Platform;
temporarily or permanently revoke any special status associated with your Flyp Account;
temporarily or in case of severe or repeated offenses permanently suspend your Flyp Account and stop providing access to the Flyp Platform.
In case of non-material breaches and where appropriate, you will be given notice of any intended measure by Flyp and an opportunity to resolve the issue to Flyp's reasonable satisfaction.
4.8.6 When this Agreement has been terminated, you are not entitled to a restoration of your Flyp Account or any of your Provided Content. If your access to or use of the Flyp Platform has been limited or your Flyp Account has been suspended or this Agreement has been terminated by us, you may not register a new Flyp Account or access and use the Flyp Platform through an Flyp Account of another Pro Seller or Client.
We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Flyp Platform (“Feedback“). You may submit Feedback by emailing us, through the “Contact” section of the Flyp Platform, or by other means of communication. Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to you.
4.10.1 If you choose to use the Flyp Platform, you do so voluntarily and at your sole risk. The Flyp Platform is provided “as is,” without warranty or guarantees of any kind, either express or implied.
4.10.2 You agree that you have had whatever opportunity you deem necessary to investigate the Flyp Platform, Flyp Services, laws, rules, or regulations that may be applicable to your business or Lot and that you are not relying upon any statement of law or fact made by Flyp.
4.10.3 If we choose to conduct identity verification or background checks on any Pro Seller or Client, to the extent permitted by applicable law, we disclaim warranties of any kind, either express or implied, that such checks will identify prior misconduct by a Pro Seller or Client or guarantee that a Pro Seller or Client will not engage in misconduct in the future.
4.10.4 You assume full responsibility for the choices you make in selling and shipping a Lot. If you are selling Lots for a minor, you are solely responsible for you actions on behalf of the minor.
4.10.5 To the maximum extent permitted by law, Clients and Pro Sellers agree to release and hold harmless Flyp from all liabilities and claims that arise in any way from any injury, death, loss, or harm that occurs to you or any minor under your supervision from listing or selling a Lot.
4.10.6 The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.
You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Flyp Platform, your Lot listing and sale via the Flyp Platform, or any interaction you have with other Pro Sellers or Clients whether in person or online remains with you. Neither Flyp nor any other party involved in creating, producing, or delivering the Flyp Platform will be liable for any incidental, special, exemplary or consequential damages, including but not limited to lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute items, Lots, products, or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with (i) these Terms, (ii) from the use of or inability to use the Flyp Platform, (iii) from any communications, interactions or meetings with other Pro Sellers or Clients or other persons with whom you communicate, interact or meet with as a result of your use of the Flyp Platform, or (iv) from your Lot listing or sale, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Flyp has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose. In no event will Flyp’s aggregate liability arising out of or in connection with these Terms and your use of the Flyp Platform including, but not limited to, from the listing or sale of your Lot via the Flyp Platform, the shipping of any Lot, or from the use of or inability to use the Flyp Platform and in connection with any Lot, or interactions with any other Clients or Pro Sellers, exceed one hundred US dollars ($100).The limitations of damages set forth above are fundamental elements of the basis of the bargain between Flyp and you..
To the maximum extent permitted by applicable law, you agree to release, defend (at Flyp’s option), indemnify, and hold Flyp and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your breach of these Terms or our policies, (ii) your improper use of the Flyp Platform or any Flyp Services, (iii) your interaction with any Pro Seller or Client, (iv) listing and sale of a Lot, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such Lot, (v) shipping and/or delivery of any items, and/or (vi) your breach of any laws, regulations or third party rights.
4.13 Dispute Resolution and Arbitration Agreement
4.13.1 Overview of Dispute Resolution Process. Flyp is committed to participating in a Client- and Pro Seller-friendly dispute resolution process. To that end, these Terms provide for a two-part process: (1) an informal negotiation directly with Flyp’s customer service team, and (2) a binding arbitration administered by the American Arbitration Association (“AAA”) using its specially designed Client Arbitration Rules (as modified by this section). Specifically, the Client Arbitration Rules provide:
Claims can be filed with AAA online (www.adr.org);
Arbitrators must be neutral and no party may unilaterally select an arbitrator;
Arbitrators must disclose any bias, interest in the result of the arbitration, or relationship with any party;
Parties retain the right to seek relief in small claims court for certain claims, at their option;
The initial filing fee for the Pro Seller or Client is capped at $200;
The Pro Seller or Client gets to elect the hearing location and can elect to participate live, by phone, video conference, or, for claims under $25,000, by the submission of documents;
The arbitrator can grant any remedy that the parties could have received in court to resolve the party’s individual claim.
4.13.2 Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and Flyp each agree to first notify the other party of the dispute and attempt to negotiate an informal resolution. We will contact you at the email address you have provided to us; you can contact Flyp’s customer service team by emailing us at email@example.com. If after a good faith effort to negotiate one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.
4.13.3 Agreement to Arbitrate. You and Flyp mutually agree that any dispute, claim or controversy arising out of or relating to this Agreement, or the applicability, breach, termination, validity, enforcement or interpretation thereof, or relating to the use of the Flyp Platform, or the listing, shipping, or sale of any Lot (collectively, “Disputes”) will be settled by binding individual arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and Flyp agree that the arbitrator will decide that issue.
4.13.4 Exceptions to Arbitration Agreement. You and Flyp each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
4.13.5 Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Client Arbitration Rules and/or other AAA arbitration rules determined to be applicable by the AAA (the “AAA Rules“) then in effect, except as modified here. The AAA Rules are available at www.adr.org or by calling the AAA at 1–800–778–7879.
4.13.6 Modification of AAA Rules - Attorney’s Fees and Costs. You and Flyp agree that Flyp will be responsible for payment of the balance of any initial filing fee under the AAA Rules in excess of $200 for claims of $75,000 or less. Either party may be entitled to seek an award of attorney fees and expenses if they prevail in arbitration, to the extent provided under applicable law and the AAA rules.
4.13.7 Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
4.13.8 Jury Trial Waiver. You and Flyp acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.
4.13.9 No Class Actions or Representative Proceedings. You and Flyp acknowledge and agree that, to the fullest extent permitted by law, we are each waiving the right to participate as a plaintiff or defendant in any purported class action lawsuit, class-wide arbitration, private attorney general action, or any other representative proceeding as to all Disputes. Further, unless you and Flyp both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If the “class action lawsuit” waiver or the “class-wide arbitration” waiver in this Section 4.13.9 is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute and the Dispute must proceed in court. If the “private attorney general action” waiver or the “representative proceeding” waiver in this Section 4.13.9 is held unenforceable with respect to any Dispute, those waivers may be severed from this Arbitration Agreement and you and Flyp agree that any private attorney general claims and representative claims in the Dispute will be severed and stayed, pending the resolution of any arbitrable claims in the Dispute in individual arbitration.
4.14 Severability. In the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
4.15 Survival. This Section 4 will survive any termination of these Terms and will continue to apply even if you stop using the Flyp Platform or terminate your Flyp Account.
4.16. Applicable Law and Jurisdiction
Regardless whether your country of residence or establishment is the United States, these Terms will be interpreted in accordance with the laws of the State of California and the United States of America, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims actions) that are excluded from the Arbitration Agreement in Section 4 must be brought in state or federal court in San Francisco, California, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in San Francisco, California.
4.17. General Provisions
4.17.1 Except as they may be supplemented by additional terms and conditions, policies, guidelines or standards, these Terms constitute the entire Agreement between Flyp and you pertaining to the subject matter hereof, and supersede any and all prior oral or written understandings or agreements between Flyp and you in relation to the access to and use of the Flyp Platform.
4.17.2 No joint venture, partnership, employment, or agency relationship exists between you and Flyp as a result of this Agreement or your use of the Flyp Platform.
4.17.3 These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.
4.17.4 If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.
4.17.5 Flyp’s failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.
4.17.6 You may not assign, transfer, or delegate this Agreement and your rights and obligations hereunder without Flyp's prior written consent. Flyp may without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion, with 30 days prior notice. Your right to terminate this Agreement at any time remains unaffected.
4.17.7 Unless specified otherwise, any notices or other communications to Clients permitted or required under this Agreement, will be provided electronically, and given by Flyp via email, Flyp Platform notification, or messaging service (including SMS and push).
4.17.8 If you have any questions about these Terms, please email us at firstname.lastname@example.org.