TERMS OF SERVICE

   Last Modified: Novermber 16, 2018

Welcome to Topspot! It’s great to have you as part of our community and we hope you have as much fun as we do in being a part of it! These Terms of Service are our agreement with you when you use Topspot’s website, online and mobile application services, and any software applications or services made available by Topspot (the “Services”). By using the Services, you agree to these Terms of Service. These Terms of Service affect your legal rights and obligations, so if you do not agree to be bound by these Terms of Service, do not access or use the Services.

   

Given the breadth of our Services, we sometimes need additional terms and conditions for specific Services. Those additional terms and conditions, which will be available with the relevant Services, also become part of your agreement with us if you use those Services.

   

ARBITRATION NOTICE: EXCEPT IF YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION CLAUSE BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND TOPSPOT WILL BE RESOLVED BY BINDING ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.


   
           
  1. Who Can Use the Services            

    You need to be at least 13 years old or younger with parental consent to create a Topspot account or use the Services. By using the Services, you also must be able to form a binding contract with Topspot, not be a person disallowed from using the Services under the laws of the United States or any other applicable jurisdiction, and must comply with these Terms of Service and all applicable local, state, national, and international laws, rules, and regulations.

               

    If you are using the Services on behalf of a business, or some other entity or organization, you agree that you are authorized to grant all licenses set forth in these Terms of Service and to agree to these Terms of Service on behalf of the business, entity or organization.

           
  2.        
  3. Your Rights            

    Topspot grants you a personal, worldwide, royalty-free, non-assignable, non-exclusive, revocable, and non-sublicensable license to access and use the Services. This license is for the sole purpose of letting you use the Services in a way that these Terms of Service allow. You may automatically download and install upgrades, updates, or other new features of any software we provide. You may also adjust these automatic downloads through your device’s settings. You may not copy, modify, distribute, sell, or lease any part of our Services, nor may you reverse engineer or attempt to extract the source code of our Services, unless applicable laws prohibit these restrictions or you have our written permission to do so.

           
  4.        
  5. Our Rights            

    Many of our Services let you create, upload, post, send, receive, and store content. When you do that, you retain whatever ownership rights in that content you had to begin with. But you grant us a license to use that content. How broad that license is depends on which Services you use and the settings you have selected.

               

    For use of the Services, you grant Topspot a worldwide, non-exclusive, royalty-free, sublicensable, and transferable license to host, store, use, display, reproduce, modify, adapt, edit, publish, and distribute that content. This license is for the limited purpose of operating, developing, providing, promoting, and improving the Services and researching and developing new ones. In addition, you also grant us a perpetual license to create derivative works from, promote, exhibit, broadcast, syndicate, sublicense, publicly perform, and publicly display content submitted to our Services. To the extent necessary, when you appear in, create, upload, post, or send content, you also grant Topspot and our business partners the unrestricted, worldwide, perpetual right and license to use your name, likeness, and voice. For the avoidance of doubt you will not be entitled to any compensation from Topspot or our business partners if your name, likeness, or voice is conveyed through our Services.


    While we’re not required to do so, we may access, monitor, review, edit, block, screen, and delete your content at any time and for any reason, including if we think your content violates these Terms of Service. We may also disqualify, edit, block or remove any entry or other content from contests on Topspot where we identify or suspect tampering or attempts to tamper with the entry process or the operation, fairness or integrity of any contest, or acts with intent to annoy, abuse, threaten or harass any other user has occurred. Entries and prize claims may also be subject to verification, cancellation or disqualification. Despite this, you remain responsible for the content you create, upload, post, send, or store through the Services. Unless officially created by Topspot, contests on Topspot are in no way sponsored, endorsed or administered by, or associated with, Topspot. By creating or entering into contests, users fully release Topspot from any liability and no correspondence will be entered into.

               

    The Services may contain sponsored content or advertisements. In consideration for topspot letting you access and use the Services, you agree that we, our affiliates, and our third-party partners may place sponsored content and advertisements on the Services. Because the Services contain content that you and other users provide us, sponsored content and advertisements may sometimes appear near your content. topspot has no obligation to identify or demark sponsored content or advertisements as such.

               

    If you volunteer feedback or suggestions, you agree that we can use this information as we choose and without compensating you.

               

    These Terms of Service do not grant you any right to use branding, logos, designs, photographs, videos, or any other materials in or from our Services. You also agree not to copy, archive, download, upload, distribute, syndicate, broadcast, perform, display, make available, or otherwise use any portion of the Services or the content on the Services except as set forth in these Terms of Service. The Services, any tools provided by the Services and any content on the Services cannot be used for any commercial purposes without our consent.

               

    You acknowledge that topspot has the right to directly contact you and to become directly involved in your interactions with our Services where it feels a need to do so.

           
  6.        
  7. The Rights of Others            

    Much of the content on our Services is produced by users, publishers, and other third parties. Whether that content is posted publicly or privately, the content is the sole responsibility of the person or organization that posted it. Although Topspot reserves the right to access, monitor, review, edit, block, screen or delete any content that violates these Terms of Service, we do not access, review or monitor all of it. So we cannot and do not take responsibility for any content that others provide through the Services. Through these Terms of Service, we make clear that we do not want the Services put to bad uses. But because we do not review all content, we cannot guarantee that content on the Services will always conform to our Terms of Service.       

  8.        
  9. Privacy            

    If you want to learn more about how we handle your information when you use our Services, please read our Privacy Policy.       

  10.        
  11. Respecting the Rights of Others            

    If you use the Services, you must not upload, post, send, store content or generally interact with the Services in a way that violates or infringes a person’s rights of publicity, privacy, copyright, trademark, or other intellectual-property rights; or which bullies, harasses, intimidates, stalks, abuses or defames another person.       

    You must not post private or confidential information via the Service, including, without limitation, your or any other person's credit card information, social security or alternate national identity numbers, non-public phone numbers or non-public email addresses; nor will you spam or solicit other users of the Services.    

  12.        
  13. Copyright            

    We take reasonable steps to remove material that we become aware of that infringes any copyright from our Services. We will terminate a person’s account if we become aware of multiple intentional breaches of copyright after having received prior written warning from us. If you suspect copyright infringement from another person using our Services, please contact us.

                 
  14. Safety            

    We try hard to keep our Services safe for users. But we can’t guarantee it. By using the Services, you agree that:

          
    • You will not use the Services for any purpose that is illegal or prohibited in these Terms of Service.
    •                
    • You will not use any robot, spider, crawler, scraper, or other automated means or interface to access the Services or extract the information of others.
    •                
    • You will not use or develop any third-party applications that interact with the Services, the content of others or other information in our Services without our written consent.
    •                
    • You will not use the Services in a way that could interfere with, disrupt, negatively affect, or inhibit others from fully enjoying or using the Services, or that could damage, disable, overburden, or impair the functioning of the Services.
    •                
    • You will not use or attempt to use another person’s account, username, or password without their permission.
    •                
    • You will not solicit login credentials.
    •                
    • You will not post content that contains pornography, graphic violence, threats, is discriminatory or contains hate speech, or that incites violence.
    •                
    • You will not upload viruses or other malicious code or otherwise compromise the security of the Services.
    •                
    • You will not attempt to circumvent any content-filtering techniques we employ, or attempt to access areas or features of the Services that you are not authorized to access.
    •                
    • You will not probe, scan, or test the vulnerability of our Services or any system or network which are Services are using, accessing or rely upon.
    •                
    • You will not encourage or promote any activity that violates these Terms of Service.
    •                
    • You will not use our Services in a way that puts you or others in danger.
    •                
  15. Your Account            

    By using the Services, you agree that:               

    • You will not create more than one account for yourself.
    •                
    • You will only create an account on behalf of another person, business, entity or organization if you are expressly authorized to create accounts on behalf of that person, business, entity or organization. topspot reserves the right to request proof or confirmation that you are authorized to create such an account under this circumstance.
    •                
    • You will not create another account if we have already disabled your account, unless you have our written permission to do so.
    •                
    • You will not buy, sell, rent, lease, transfer or assign access to or rights in respect of any topspot account, Comp, Entry, username, or any other content or information on our Services without our written permission.
    •                
    • You will not share your password.
    •                
    • You will not log in or attempt to access the Services through unauthorized third-party applications or clients.

    If you think that someone has gained access to your account, please contact us.

  16.        
  17.  Services of Third Parties            

    There may be links from our Services, or from communications you receive from our Services, to third-party websites, applications, features or services. There may also be links to third-party websites, applications, features or services in images or comments within our Services. The Services also include third-party content that we do not control, maintain or endorse. Functionality on the Services may permit interactions between the Services and a third-party website, application, feature or service, including which connect the Services or your account on the Services with a third-party website, application, feature or service. Topspot does not control any of these third-party websites, applications, features or services or any of their content. You expressly acknowledge and agree that Topspot is in no way responsible or liable for any such third-party websites, applications, features or services, or any of your interactions with these, or for the implications of any of these interactions.


  18. Data Charges            

    You are responsible for any mobile charges that you may incur for using our Services, including text-messaging and data charges. If you’re unsure what those charges may be, you should contact your service provider before using the Services.

           
  19.        
  20. Modifications to the Services and Termination            

    We may add or remove features, products, or functionalities, and we may also suspend or stop the Services altogether. We may take any of these actions at any time, and when we do, we may not provide you with any notice beforehand.

    You can terminate these Terms of Service at any time and for any reason by deleting your Topspot account. Topspot can also terminate these Terms of Service with you at any time, for any reason, and without advanced notice. That means that we may stop providing you with any and all of the Services, or impose new or additional limits on your ability to use the Services. Please note despite the above, the Sections 3, 6, 8, 9, and 13-20 of the Terms of Service will continue to bind you and Topspot.
           
  21.        
  22. Indemnity            

    You agree, to the extent permitted under applicable law, to indemnify, defend, and hold harmless Topspot, our partners, employees, and affiliates from and against any and all complaints, charges, claims, damages, losses, costs, liabilities, and expenses (including attorneys’ fees) due to, arising out of, or relating in any way to: (a) your access to or use of the Services; (b) your content; and (c) your breach of these Terms of Service.       

  23.        
  24. Disclaimers            

    THE SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, WHILE TOPSPOT ATTEMPTS TO PROVIDE A GOOD USER EXPERIENCE, WE DO NOT REPRESENT OR WARRANT THAT: (A) THE SERVICES WILL ALWAYS BE SECURE, ERROR-FREE, OR TIMELY; (B) THE SERVICES WILL ALWAYS FUNCTION WITHOUT DELAYS, DISRUPTIONS, OR IMPERFECTIONS; OR (C) THAT ANY CONTENT OR INFORMATION YOU OBTAIN ON OR THROUGH THE SERVICES WILL BE TIMELY OR ACCURATE.

               

    TOPSPOT TAKES NO RESPONSIBILITY AND ASSUMES NO LIABILITY FOR ANY CONTENT THAT YOU, ANOTHER USER, OR A THIRD PARTY CREATES, UPLOADS, POSTS, SENDS, RECEIVES, OR STORES ON OR THROUGH OUR SERVICES. YOU UNDERSTAND AND AGREE THAT YOU MAY BE EXPOSED TO CONTENT THAT MIGHT BE OFFENSIVE, ILLEGAL, MISLEADING, OR OTHERWISE INAPPROPRIATE, NONE OF WHICH TOPSPOT WILL BE RESPONSIBLE FOR. YOU ALSO AGREE THAT TOPSPOT IS NOT RESPONSIBLE OR LIABLE FOR THE CONDUCT OF YOU, ANOTHER USER, OR A THIRD PARTY ON OUR SERVICES.

           
  25.        
  26. Limitation of Liability            

    TO THE MAXIMUM EXTENT PERMITTED BY LAW, TOPSPOT AND OUR PARTNERS, EMPLOYEES, AFFILIATES, LICENSORS, AND SUPPLIERS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR MULTIPLE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM: (A) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (B) THE CONDUCT OR CONTENT OF OTHER USERS OR THIRD PARTIES ON OR THROUGH THE SERVICES; (C) UNAUTHORIZED ACCESS, USE, OR ALTERATION OF YOUR CONTENT; (D) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY TOPSPOT OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY'S USE OF THE SERVICES; (E) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (F) ANY ERRORS OR OMISSIONS IN THE OPERATION OF THE SERVICES; OR (H) ANY DAMAGE TO ANY USER'S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION. TOPSPOT AND OUR PARTNERS, EMPLOYEES, AFFILIATES, LICENSORS, AND SUPPLIERS WILL NOT BE LIABLE FOR ANY OF THE ABOVE EVEN IF FORESEEABLE OR IF TOPSPOT HAS BEEN ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL TOPSPOT’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES EXCEED ONE HUNDRED UNITED STATES DOLLARS (US$100).

               

    YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF TOPSPOT'S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY TOPSPOT, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEBSITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY TOPSPOT.

           
  27.        
  28. Arbitration, Class-Action Waiver, and Jury Waiver            
                     
    1. Applicability of Arbitration Agreement.  You and Topspot agree that all claims and disputes, including all statutory claims and disputes, arising out of or relating to these Terms of Service or the use of the Services that cannot be resolved in a small claims court will be resolved by binding arbitration on an individual basis, except that you and Topspot are not required to arbitrate any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. To be clear: The phrase “all claims and disputes” includes claims and disputes that arose between us before the effective date of these Terms of Service.                
    2.                
    3. Arbitration Rules.  The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association (“AAA”) and will be governed by the AAA Consumer Arbitration Rules, which is available by contacting the AAA. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms of Service. The arbitration will be conducted by a single neutral arbitrator. Any claims or disputes where the total amount sought is less than US$10,000 may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount sought is US$10,000 or more, the right to a hearing will be determined by the arbitral forum’s rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.                
    4.                
    5. Additional Rules for Non-appearance Arbitration.  If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three. The specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise.                
    6.                
    7. Authority of the Arbitrator.  The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of you and Topspot. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Terms of Service. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Topspot.                
    8.                
    9. Waiver of Jury Trial.  YOU AND TOPSPOT WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Topspot are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than in court and are subject to very limited review by a court. In any litigation between you and Topspot over whether to vacate or enforce an arbitration award, YOU AND TOPSPOT WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute resolved by a judge.                
    10.                
    11. Waiver of Class or Consolidated Actions.  ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in Section 16.                
    12.                
    13. Right to Waive.  Any rights and limitations set forth in this arbitration agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this arbitration agreement.                
    14.                
    15. Opt-out.  You may opt out of this arbitration agreement. If you do so, neither you nor Topspot can force the other to arbitrate. To opt out, you must notify Topspot in writing no later than 30 calendar days after first becoming subject to this arbitration agreement. Your notice must include your name and address, your Topspot username and the email address you used to set up your Topspot account (if you have one), and an unequivocal statement that you want to opt out of this arbitration agreement.                
    16.                
    17. Small Claims Court.  Notwithstanding the foregoing, either you or Topspot may bring an individual action in small claims court.                
    18.                
    19. Arbitration Agreement Survival.  This arbitration agreement will survive the termination of your relationship with Topspot.                
    20.            
           
  29.        
  30. Exclusive Venue            

    To the extent the parties are permitted under these Terms of Service to initiate litigation in a court, both you and Topspot agree that all claims and disputes, including statutory claims and disputes, arising out of or relating to the Terms of Service or the use of the Services will be litigated exclusively in the United States District Court for the Central District of California. If, however, that court would lack original jurisdiction over the litigation, then all such claims and disputes will be litigated exclusively in the Superior Court of California, County of Los Angeles. You and Topspot consent to the personal jurisdiction of both courts.

           
  31.        
  32. Legal Jurisdiction            

    Except to the extent they are preempted by U.S. federal law, the laws of California, other than its conflict-of-laws principles, govern these Terms of Service and any claims and disputes arising out of or relating to these Terms of Service or their subject matter, including tort and statutory claims and disputes. THESE TERMS OF SERVICE WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.

           
  33.        
  34. Severability            

    If any provision of these Terms of Service is found unenforceable, then that provision will be severed from these Terms of Service and will not affect the validity and enforceability of any remaining provisions.

           
  35.        
  36. Final Terms            
                     
    • These Terms of Service make up the entire agreement between you and Topspot, and supersede any prior agreements.
    •                
    • These Terms of Service do not create or confer any third-party beneficiary rights.
    •                
    • If we do not enforce a provision in these Terms of Service, it will not be considered a waiver.
    •                
    • We reserve all rights not expressly granted to you.
    •                
    • You may not transfer any of your rights or obligations under these Terms of Service without our written consent. Any purported assignment or delegation by you without the appropriate prior written consent of Topspot will be null and void.
    •                
    • These Terms of Service were written in English and to the extent the translated version of these Terms of Service conflict with the English version, the English version will prevail.
    •                   
  37.        
  38. Revisions to the Terms of Service            

    We may change these Terms of Service from time to time. We intend to notify you of any changes either through amending the last modified date of the Terms of Service, or where otherwise required, through alerts or notifications either on our website or through our Services.