Terms Of Use/Sale

Ash Ventures, LLC, a Kentucky limited liability company doing business under the assumed name of “OneUp” (“OneUp,” “we,” or “us”), offers services (the “OneUp Services”) through which you can (i) sell certain video games, electronic gaming systems, and associated products (the “Products”) to OneUp or third-parties (each transaction, a “Trade-In”) and (ii) buy Products (each sale, a “Purchase”). You must agree to abide by the following terms in order to use the OneUp Services and/or the OneUp Websites.

BY SETTING UP AN ACCOUNT WITH ONEUP, OR BY USING ONEUP WEBSITES or ONEUP SERVICES, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS, WHICH INCLUDE A WAIVER OF JURY TRIAL AND CLASS ACTION WAIVER, AND WHICH MAY BE AMENDED AT ANY TIME BY POSTING THE AMENDED TERMS ON THE ONEUP WEBSITES. ANY AMENDED TERMS WILL BE AUTOMATICALLY EFFECTIVE IMMEDIATELY AFTER POSTING. OneUp reserves the right to terminate or suspend your use of the OneUp Websites and/or the OneUp Services if you do not comply with this Agreement or any other OneUp policy or procedure, or for any other reason we determine, in our sole discretion, consistent with law.

1. About These Terms. These terms, the terms that govern your use of OneUp's application “QuickFlip” (“OneUp Application”), OneUp's websites, including one-up.app (“OneUp Websites”), the OneUp Services and any and all applications included therein and any supplemental terms or policies that accompany a specific transaction, feature or application, collectively, make up an agreement between you and OneUp (the “Agreement”). You acknowledge that this Agreement is in electronic form and has the same force and effect as an agreement in writing. In this Agreement, the term “you” or “your” means an individual or entity exercising rights under this Agreement. These terms govern any Trade-In or Purchase from or through the OneUp Websites or the OneUp Application.
2. Requirements for Trade-In and Purchase. In order to complete a Trade-In or Purchase or to complete any other transaction with OneUp, you must: (i) provide true, up to date and accurate account information about yourself and any Product you submit to us or Purchase from us; (ii) comply with all terms and conditions of this Agreement; (iii) comply with all applicable laws and regulations; (iv) transact on behalf of yourself and not on behalf of others; and (v) be over eighteen (18) years of age and have the legal capacity to enter into agreements and to convey title and interest in any Product that you submit to us. OneUp reserves the right to suspend or terminate any account and/or any transaction at any time in its sole discretion. You agree to pay all charges that may be incurred by you or on your behalf through the OneUp Website(s), at the prices in effect when such charges are incurred including, without limitation, all shipping and handling charges, and you authorize OneUp to charge all sums for the order(s) that you make to the payment method specified at the time of your order. In addition, you remain responsible for any taxes, including but not limited to state sales tax, that may be applicable to your Trade-In or Purchase. You authorize OneUp to charge all applicable amounts for the order(s) that you make to the payment method specified at the time of your order. OneUp reserves the right to cancel any Purchase and refund any applicable purchase price actually received by OneUp at any time prior to delivery of the Product to You.
3. Condition for Trade-In; Trade-In Value.

   i. OneUp uses the condition guidelines as posted to the website located at https://www.one-up.app/quickflips/guidelines to assess each Product for Trade-In (the “Guidelines”) and determine the amount OneUp will pay for the Product (“Trade-In Value”). The Guidelines are subject to change at OneUp's discretion on the first (1st) calendar day of each month.

   ii. OneUp will inspect all Products submitted for Trade-In pursuant to this Agreement within fourteen (14) business days of receipt. OneUp will use its discretion to apply the Guidelines in order to determine the Trade-In Value, weighing factors that may include the Product's model, functionality, and condition and whether necessary Product accessories have been provided.

   iii. With respect to each Product submitted for Trade-In pursuant to this Agreement which fully satisfies all Guidelines, the Trade-In Value will be the Buy Price as posted to the buy list website located at https://www.one-up.app/quickflips/offers (the “Buy Price”) as of the date the submission is actually received by OneUp. Products on the buy list and each Product's Buy Price are subject to change at One-Up's discretion on the first (1st) calendar day of each month.

   iv. Submission to OneUp of a Product for Trade-In which does not fully satisfy the Guidelines will reduce the Trade-In Value below the applicable Buy Price. Should OneUp determine in its sole discretion that a submitted Product does not meet the Guidelines such that it has no value as a Trade-In, the Trade-In Value will be zero ($0.00), and you authorize and direct us to dispose of the submission as we see fit, in our sole discretion, and waive any rights in and to that Product.

   v. Payment of the Trade-In Value will be made by OneUp to you via the eChecks email account designated by you in connection with your submission.

   vi. ABSENT SPECIFIC WRITTEN AGREEMENT BY ONEUP TO THE CONTRARY, ONEUP DOES NOT RETURN PRODUCT SUBMISSIONS UNDER ANY CIRCUMSTANCES.

4. Fitness for Sale; Existing Services. You must have all right, title, and interest in any and all Products you seek to sell via Trade-In. The Products and the sale and shipment of such items to OneUp: (i) must comply with all applicable laws, statutes, ordinances, including without limitation all import and export laws, (ii) may not infringe on third party intellectual property rights (including copyrights, trademarks, patents, trade secrets or other proprietary rights), (iii) shall not be counterfeit, stolen, or fraudulent, and (iv) shall contain no viruses, trojans, worms, spyware, adware, other malware or malicious or altered code. You represent and warrant that the Products are free of any liens or encumbrances, including third-party software which may not be transferred or for which royalties are due. By using the OneUp Services, you agree to indemnify OneUp from all claims or losses sustained by OneUp as a result of any breach of your representations and warranties. It is your responsibility to discontinue internet and/or any similar service on your Product prior to selling it via Trade-In. OneUp is not responsible for any service charges related to your Product, whether you incur such charges before, during or after your use of the OneUp Services. It is also your responsibility to remove any security codes that would prevent use of any Product.
5. Sending OneUp Your Product for Trade-In. You are fully responsible for the shipment to OneUp of any Product submitted for Trade-In. All shipments to OneUp shall follow the Shipping Instructions posted to the website located at https://www.one-up.app/quickflips/guidelines.
6. Releasing Rights to Product. Once you send OneUp your Product for Trade-In, OneUp does not guarantee that it will be able to honor any request for return of the Product and/or any data or information contained in such Product. For Products involving Products that store files and/or personal data on hard drives, memory chips or the like, you must back up and store any data you wish to keep from your Product and remove any personal information from the Product before you send your Product to us for Trade-In. By sending OneUp the Product, you agree to release us from any claim as to the Product, the data stored in such Product, or any information on any media used in conjunction with the Product and which you send to OneUp (whether in connection with a Trade-In or a Purchase), or for such data's security, integrity, confidentiality, disclosure or use. OneUp is not responsible for: (a) any loss suffered by you due to any data that is not erased from the Product and transferred to a third party, or (b) any loss of data after you submitted the Product to us.
7. Risk-Of-Loss. You remain responsible for the risk-of-loss for the Products sent to OneUp for Trade-In until delivery of the same to OneUp. You are responsible for any damages that may occur to your Product while in transit.
8. Passing of Title. Title to the applicable Product sent to OneUp for Trade-In passes to OneUp upon OneUp's acceptance of the Product after confirming adherence to the Guidelines, as applicable.
9. Use of Services. By using OneUp Websites, you agree not to (i) access any of the OneUp Services by any means (including, without limitation, by use of scripts, web crawlers or similar methods) other than through the user interface provided by OneUp; and (ii) engage in any other activity that interferes with or disrupts the OneUp Services or performance of the OneUp Websites.
10. No Warranties. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE PROVIDE THE ONEUP SERVICES AND WEBSITES “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE,” WITHOUT EXPRESS OR IMPLIED WARRANTIES OF ANY KIND. WE DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THE IMPLIED CONDITIONS OF SATISFACTORY QUALITY. WE MAKE NO REPRESENTATIONS THAT YOUR TRANSACTIONS WITH ONEUP WILL MEET YOUR REQUIREMENTS.
11. Limited Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ONEUP OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, DISTRIBUTORS OR CONTRACTORS (COLLECTIVELY, THE “ONEUP PARTIES”) BE LIABLE FOR ANY COMPENSATORY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, LOSS OF DATA, INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY, OR ANY CLAIMS OF YOU OR OTHER THIRD PARTIES WHATSOEVER WITH RESPECT TO YOUR TRANSACTIONS WITH ONEUP UNDER THIS AGREEMENT REGARDLESS OF THE LEGAL THEORY ON WHICH THE CLAIM IS BASED, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, WARRANTY, OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF ONEUP AND THE ONEUP PARTIES (JOINTLY) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF THE ONEUP SERVICES AND ONEUP WEBSITES EXCEED THE GREATER OF (I) THE AMOUNT PAID, IF ANY, BY YOU TO US OR (II) $100. THE LIMITATIONS SET FORTH IN THIS AGREEMENT WILL NOT LIMIT OR EXCLUDE LIABILITY FOR OUR GROSS NEGLIGENCE, FRAUD OR INTENTIONAL, MALICIOUS OR RECKLESS MISCONDUCT, OR FOR PERSONAL INJURY OR PROPERTY DAMAGE CAUSED BY PRODUCTS YOU PURCHASE THROUGH THE ONEUP SERVICES.
12. Indemnity. You agree to indemnify, defend, and hold harmless OneUp and the OneUp Parties from and against any and all claims, liabilities, damages, losses, costs, expenses, or fees (including reasonable attorneys' fees) that such parties may incur as a result of or arising from your violation or breach of any terms under this Agreement or applicable law. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with our defense of such claim.
13. Entire Agreement/No Waiver. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof. The captions are used only as a matter of convenience and are not to be considered a part of this agreement or be used in determining the intent of the parties to it. No waiver by OneUp of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Sections 4, 6, 8, and 10 through 16 shall survive termination of this Agreement.
14. Modification. OneUp reserves the right to modify this Agreement at any time. If you do not agree to the changes, you may discontinue using the OneUp Websites and/or the OneUp Services. Your continued use of any OneUp Website and/or OneUp Services after any such changes take effect constitutes your acceptance to such changes. Each time you submit a Product for sale to OneUp, you reaffirm your acceptance of this Agreement as in effect at the time of such use. You are responsible for reviewing this Agreement each time you use the OneUp Websites and/or the OneUp Websites. The Agreement is and will be located at https://www.one-up.app/terms. The last date this Agreement was revised is set forth below.
15. Dispute Resolution; Binding Arbitration. The following Section shall not apply if and to the extent the laws of the jurisdiction in which you are located prohibit parties from entering into an agreement to exclusively arbitrate their Claims or to waive their right to bring a claim as part of a class proceeding within the context of a contract such as this Agreement.

    PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND ONEUP TO ARBITRATE CERTAIN CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND ONEUP FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND ONEUP AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. ONEUP AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION ARE INTENDED TO REDUCE THE FINANCIAL BURDENS ASSOCIATED WITH RESOLVING THEIR DISPUTES AND ARE NOT INTENDED TO DELAY ADJUDICATION OF ANY PARTY'S CLAIMS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT.

    Claims This Section Applies To. The dispute resolution and binding arbitration terms in this Section 15 apply to all Claims between you and OneUp. A “Claim” is any dispute, claim, or controversy (excluding those exceptions listed below) between you and OneUp, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, that either party wishes to seek legal recourse for and that arises from or relates to this Agreement, the OneUp Services or Products, including any privacy or data security claims or claims related to the validity, enforceability, or scope of the arbitration requirement or any portion of it.

    a. Claims Subject to Binding Arbitration; Exceptions. Except for individual disputes that qualify for small claims court (provided that the small-claims court does not permit class or similar representative actions or relief) and any disputes exclusively related to the intellectual property or intellectual property rights of you or OneUp, including any disputes in which you or OneUp seek injunctive or other equitable relief for the alleged unlawful use of your or OneUp's intellectual property or other infringement of your or OneUp's intellectual property rights (“IP Claims”), all Claims, including Claims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with Section 15(b) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.

    b. Informal Dispute Resolution Prior to Arbitration. If you have a Claim against OneUp or if OneUp has a Claim against you, you and OneUp will first attempt to resolve the Claim informally in order to try and resolve the Claim faster and reduce costs for both parties. You and OneUp will make a good-faith effort to negotiate the resolution of any Claim for thirty (30) days, or such longer period as mutually agreed in writing (email suffices) by the parties, (“Informal Resolution Period”) from the day either party receives a written notice of a dispute from the other party (a “Claimant Notice”) in accordance with this Agreement. You will send any Claimant Notice to OneUp by email to support@one-up.app. OneUp will send any Claimant Notice to you by email using the contact information you have provided to OneUp. The Claimant Notice sent by either party must (i) include the sender's name, address, email address, and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought.

    c. Binding Individual Arbitration. Subject to the terms of this section, Claims may only be settled by binding individual arbitration conducted by National Arbitration and Mediation (“NAM”), https://namadr.com, according to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., (“FAA”) and according to NAM's Comprehensive Dispute Resolution Rules and Procedures in effect at the time the Claim arose (the “Rules”), as modified by this Agreement. If NAM notifies the parties in writing (email suffices) that it is not available to arbitrate any Claim, then that Claim may only be settled by binding individual arbitration conducted by American Arbitration Association (“AAA”), https://www.adr.org. This Agreement affects interstate commerce, and the enforceability of this Section 15 will be substantively and procedurally governed by the FAA to the extent permitted by law. As limited by the FAA, this Agreement, and the Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Claim and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. To the fullest extent allowed by applicable law, the arbitrator may only award legal or equitable remedies that are individual to you or OneUp to satisfy one of our individual Claims (that the arbitrator determines are supported by credible relevant evidence).

    d. Arbitration Procedure and Location. You or OneUp may initiate arbitration of any Claim not resolved during the Informal Resolution Period by filing a demand for arbitration with NAM in accordance with the Rules (or with AAA in accordance with the Rules if applicable). The arbitration will be conducted by a single arbitrator in the English language either remotely or in Lexington, Kentucky. You and OneUp both agree that the arbitrator will be bound by this Agreement. The arbitrator (not a judge or jury) will resolve all Claims in arbitration. Unless you and OneUp agree otherwise, any decision or award will include a written statement stating the decision of each Claim and the basis for the award, including the arbitrator's essential factual and legal findings and conclusions.

    e. Arbitration Fees. Each party will be responsible for arbitration fees in accordance with the applicable Rules and this Agreement.

    f. One Year to Assert Claims. To the extent permitted by law, any Claim by you or OneUp against the other must be filed within one year after such Claim arises; otherwise, the Claim is permanently barred, which means that you or OneUp will no longer have the right to assert that Claim.

    g. Severability. If any portion of this Section 15 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from this Agreement; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 15 or the parties' ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 15; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction, in accordance with this Agreement, and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 15 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 15 will be enforceable.

16. Applicable Law or Venue. Any dispute arising from this Agreement, or your use of the OneUp Services will be governed by and construed and enforced in accordance with the laws of Kentucky except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of Kentucky or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration and cannot be heard in small claims court will be resolved in the state or federal courts in Lexington, Kentucky.

If you have any questions, concerns, or suggestions regarding the above Agreement, please feel free to email support@one-up.app.

Last Updated: February 8, 2024