Terms of Service
Last updated on December 11, 2009.
READ THESE TERMS CAREFULLY BEFORE USING THE SERVICES OR APPLICATIONS PROVIDED ON THIS SITE. IF YOU DO NOT AGREE TO THESE TERMS, STOP ACCESSING OR USING THIS SITE OR THE SERVICES IMMEDIATELY. YOUR CONTINUED USE OF THE SERVICES OR ACCESS OF THE SITE INDICATES YOUR ACKNOWLEDGMENT THAT YOU HAVE READ AND ACCEPTED THESE TERMS, AS THEY MAY BE UPDATED OR AMENDED FROM TIME TO TIME.
This Agreement is between you ("user") and Topzy, Inc. (including its parent, subsidiaries or affiliates) ("Company", "us" or "we"), an S corporation with its principal place of business in Washington, DC. Company owns and operates the Web sites with their home pages located at http://www.topzy.com ("Sites"), and certain applications or services made available on those sites (collectively, "Services"). You certify to us that you, if an individual, are at least 13 years of age, are legally permitted to access and use the Services, and take full responsibility for such use and access. If this Agreement is void or prohibited by the laws of any jurisdiction, your right to access or use the Services is revoked in such jurisdiction.
1. Right To Use The Services. Subject to the terms and conditions of this Agreement, we grant you a revocable, non-exclusive, non-transferable, non-sublicenseable and limited right to use Services for your own non-commercial use. We reserve all rights that are not expressly granted to you herein. We may impose restrictions on any features or services or limit users' access to parts or all of the Services in our sole discretion and with or without notice to you. We may change, suspend or discontinue any of the Services, including the availability of any feature, database, or content, at any time, with or without notice, or liability, to you. If you are between the age of 13 and 18, your parent or legal guardian must consent to your use of our Services and agree to the terms of this Agreement.
2. User Account and Information. To use the Services, you may be required to create a user account with us and to provide information such as a name, mailing address, telephone number, email address, etc. (collectively, "Registration Information"). You shall submit true, accurate, complete and updated Registration Information. You are solely responsible for maintaining the confidentiality of your Registration Information, user ID, password and other account information, and for all activities that occurred under your account or user ID. We reserves the right to verify user information and may refuse the registration of or suspend or cancel a user account for any reason in our sole discretion without notice to you. We may limit your right to claim or register certain user names or screen names if we believe appropriate.
3. User Obligations And Use Restrictions. Content or materials posted or stored on the Sites may be protected by copyright, with or without copyright notice. You may not copy, use or exploit any such content or material in any manner that infringes upon or violates the rights of the Company or a third party. You may not use the Services in connection with any illegal activity (such as a pyramid scheme or a violation of another person's privacy right). You may not use the Services to violate or breach the security of any computer network, crack passwords or encryption codes, or to transfer, display or store false or illegal materials including those that are deemed discriminatory, defamatory, threatening, obscene or otherwise inappropriate as determined by Company in its sole discretion. You may not transfer your account to any third party or use the Services for any commercial solicitation purposes. You may not create more than one user account or create a user account for the purpose of defrauding the Company. You may not harvest, solicit or otherwise collect any personal information about other users, including, but not limited to, email addresses, without their consent. You may not use any robot, spider, scraper or other automated means to access our sites for any purpose without Company's express written permission. You may not take any action that imposes or may impose, in Company's sole discretion, an unreasonably or disproportionately large load on Company's infrastructure. You may not use the Services to operate server programs, including, but not limited to, mail servers, IRC servers, ftp servers or Web servers. You may not use any technology, method or device to maintain a constant connection with the Services. You may not interfere or attempt to interfere with the proper working of the Services or any other activities conducted on the Sites. You may not bypass or circumvent any measures we may use to prevent or restrict access to the Services. You may not attempt to reverse engineer or otherwise derive the source code of our applications or any part thereof. You may not upload or transmit any virus, worm, Trojan horse, or other malicious code onto our Sites or systems.
You may not, without Company's express written permission, (a) link to any page other than the home page of the Sites, (b) link to any part of the Sites through the use of frames, inline links or any other similar technology whereby the content will be displayed without leaving the linking Web site, (c) use any image, logo, content or other's trademark as part of a link, or (d) create any link implying, intentionally or unintentionally, that an endorsement, sponsorship or affiliation with Company exists when that is not the case.
You are fully responsible for all content you post on the Sites. We may remove any content or information you post on the Sites if we believe it violates the terms of this Agreement at any time and without notice to you.
4. User Representations and Warranties. You hereby represent and warrant (a) that you have read and agree to our Privacy Policy; (b) that you are at least 18 years old, and if you are between the age of 13 and 18, you represent that your parent or legal guardian has consented to your use of our Services and agreed to the terms of this Agreement; (c) that you have the necessary license, rights and permissions to post and transmit content on the Sites and to authorize Company's use of the same; (d) that all of your activities on the Sites or in connection with the Services are lawful, consistent with all of Company's rules and policies including this Agreement, and do not violate Company's or any third party's right; (e) that none of the information or materials that you provided to us or posted on the Sites is false or misleading, libelous, defamatory, slanderous, obscene, profane, pornographic, offensive, abusive or otherwise illegal or infringes upon or violates any right of Company or a third party; (f) that you will not distribute (knowingly or unknowingly), and none of your content or materials contain, any form of viruses, worms, malicious code or technologies that may injure or adversely affect the functionality of the Sites, the Services, or the properties or interests of Company or a third party; (g) that you will not commit any form of fraud through your use of the Services on Company or on a third party or create a different user account to avoid adverse action by Company; (h) that you will not copy, modify, distribute, use or otherwise exploit any content, material, software codes, or technology from the Sites or materials made available to you as a result of your access to the Sites or Services without express authorization of the Company or the rightful owners of the copyright, trademark, patent or any other intellectual property right therein; and (i) that you will not use the Services or access the Sites if you are a convicted sex offender.
5. User Content and Information. You grant us a non-exclusive, transferable, sub-licenseable (through multiple levels), royalty-free, worldwide license to use any content that you provide to us or post on the Sites. We always appreciate your feedback or suggestions about our Sites and Services, and you understand and agree that if you provide such feedback or suggestions, we may use them without any liabilities or obligations to you. In addition, please read our Privacy Policy for our practices regarding collection and use of your personal information, which policy is incorporated by reference into this Agreement.
6. Suspension and Termination. Company may, immediately if it so chooses, and in its sole and absolute discretion, suspend or terminate your user account and/or deny or restrict your access to the Sites or Services at any time for any reason, including, without limitation, actual or potential violation of any provision of this Agreement, or for no reason at all without notice to you. In addition to the foregoing, Company may, at its sole discretion, limit your activities on or access to the Sites or Services and/or issue a warning to other users of your actions. You may also delete or terminate your account with us at any time.
7. Protecting Copyrights. If you in good faith believe your work has been copied and posted on or through the Sites or Services in a way that constitutes copyright infringement, please send us a notification of claimed infringement with all of the following information: (a) identification of all copyrighted work claimed to have been infringed; (b) identification of the claimed infringing material and information reasonably sufficient to permit us to locate the material on the Sites (providing the active URL(s) of the claimed infringing material satisfies this requirement); (c) your contact information, such as an address, telephone number, and email address; (d) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner or the law; (e) a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf; and (f) your physical or electronic signature. You acknowledge that if you fail to comply with all of the above requirements, your DMCA notice may be invalid. For notification of claimed infringement, we can be reached via our Contact Us page.
8. Disclaimers. Company has no special relationship with or fiduciary duty to any user. You acknowledge that by accessing the Sites or using the Services, you may be exposed to content that violates this Agreement or is otherwise offensive. You use the Sites and Services at your own risk. Company makes no representations whatsoever concerning, and shall not be responsible or liable for, the accuracy, completeness, copyright compliance, legality or appropriateness of the content or materials posted on or transmitted through the Sites or Services. Content posted on the Sites does not reflect the opinions or policies of the Company. Any reference to any person or entity, product, material or service made on the Sites does not constitute an endorsement or recommendation by the Company or its officers, directors, employees, and agents (collectively, "Related Parties"). Furthermore, Company does not warrant that the Sites, the Services, or any of the content or information communicated to you through the Sites or Services is free from errors, defects, viruses or other harmful components. Company is not responsible for, and makes no guarantee of, the performance or action of any user of the Services.
Other than those expressly stated in our Privacy Policy, we have no duty of confidentiality with regard to the information or content you submitted to us or posted on the Sites. You acknowledge that such information or content is provided by you for the purpose of disclosure in and through a variety of media and channels and is not subject to any confidentiality obligations on our part.
We will use reasonable efforts to maintain the security and integrity of certain information you provided, but we cannot guarantee that unauthorized access to or alteration of your information will never occur and you agree that we are not responsible for unauthorized access to or alteration of the transmissions, data, or material posted on or transmitted through the Sites or Services. You understand and agree that we are not responsible or liable for any unauthorized disclosure, access or alteration of your information or content.
9. Disclaimer of Warranties and Limitation On Liabilities. THE SITES AND THE SERVICES, AND ANY CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION ACCESSED THEREFROM, ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, COMPANY MAKES NO WARRANTIES AND SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM YOUR USE OF THE SITE OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY INTERRUPTION OF OR ERROR IN THE SITES OR SERVICES UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, COMPANY'S NEGLIGENCE.
IN NO EVENT SHALL COMPANY BE LIABLE TO A USER (INCLUDING YOU) OR A THIRD PARTY FOR ANY DAMAGES (INCLUDING BODILY INJURY OR EMOTIONAL DISTRESS), LOSS OF MONEY, GOODWILL OR REPUTATION, OR FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES OR THE SITES, EVEN IF THE COMPANY KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR INJURIES. THE COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY DAMAGES OR LOSSES RESULTING FROM ANY CORRESPONDENCE OR BUSINESS DEALINGS WITH THIRD-PARTY ADVERTISERS OR RESULTING FROM THE PRESENCE OR INVOLVEMENT OF SUCH ADVERTISERS ON THE SITES OR IN THE SERVICES.
10. Release. You hereby expressly release Company and its Related Parties from claims, liabilities or damages of any kind and nature, known or unknown, arising out of or connected with your use of the Sites or Services, or any dispute between you and other users or a third party. The Sites or Services may contain or involve links or references to third party Web sites. You acknowledge that any such links are provided to you by Company solely as an added convenience to you, and you agree that Company is not responsible for the operation or actions of or content displayed on those Web sites and you hereby expressly release Company from any claims or liabilities you may have, known or unknown, relating to those third party Web sites.
11. Indemnity. You agree to indemnify and hold Company and its Related Parties, independent contractors, partners, licensors and joint venturers harmless from and against all liabilities, damages, costs and expenses (including attorneys fees), incurred in connection with any claim or demand made by any third party arising from (a) your use or access of the Sites or Services, (b) your actual or alleged breach of this Agreement, or (c) any alleged infringement or violation by you, or anyone using or acting through your user account or password, of a third party's right, including but not limited to intellectual property right and right of privacy. Notwithstanding the foregoing, Company reserves the right to assume the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with us in the defense of any such claim, action, settlement or compromise negotiations, as requested by us, and you may not in any event settle any such matter without the written consent of Company.
12. Governing Law and Dispute Resolution. The laws of the District of Columbia (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Agreement and the transactions it contemplates, including, without limitation, its interpretation, construction, performance, and enforcement. The parties expressly agree that this Agreement shall not be governed by the Uniform Computer Information Transactions Act, or any state's version thereof. Except as set forth below concerning arbitration, any claims or actions regarding or arising out of this Agreement must be brought exclusively in a court of competent jurisdiction sitting in Washington, DC, and each party to this Agreement submits to the jurisdiction of such courts for the purposes of all legal actions and proceedings arising out of or relating to this Agreement. Each party waives, to the fullest extent permitted by law, any objection that it may now or later have to (i) the laying of venue of any legal action or proceeding arising out of or relating to this Agreement brought in any state or federal court sitting in Washington, DC; and (ii) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum. Each party hereby knowingly, voluntarily and intentionally waives any right it may have to a trial by jury in respect of any litigation (including but not limited to any claims, counterclaims, cross-claims, or third party claims) arising out of, under or in connection with this Agreement or the use of the Services.
Any controversy or claim arising out of, in connection with, or relating to this Agreement, or any breach thereof, including any issue regarding the interpretation thereof, must be resolved by confidential binding arbitration in Washington, DC, conducted by a single arbitrator in accordance with the then prevailing Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Either party may, without inconsistency with this agreement to arbitrate, seek from a court any provisional remedy that may be necessary to protect trademarks, copyrights, or other rights or property pending the establishment of the arbitral tribunal or its determination of the merits of the controversy. The parties agree that the arbitrator has the power to award all costs of the arbitration, including reasonable attorneys fees and expenses, to the prevailing party. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to any other arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise. In no event shall any claim, action or proceeding by you related in any way to the Sites and/or the Services be instituted more than 1 year after the cause of action arose.
If Company prevails in a dispute with a user, the user shall be responsible for all attorneys' fees and costs and expenses incurred by Company in connection therewith. Legal notices will be served on Company's registered agent (in Company's case) or to the email address you provided to Company during registration process and updated from time to time (in your case). Notice will be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, Company may serve you legal notices by mail to the address you provided during the registration process and updated from time to time, in which case notice will be deemed given 3 days after the date of mailing.
13. For Users Outside The U.S. If you are outside the U.S., you consent to having your personal information and data transferred to and processed in the U.S. If you are located in a country embargoed by the U.S., or are on the U.S. Treasury Department's list of Specially Designated Nationals, you will not engage in commercial activities on the Sites (such as advertising or transacting payments) or operate an application or Web site.
14. Miscellaneous. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. User has no authority to bind Company in any respect whatsoever. The failure of Company to exercise any right provided for herein will not be deemed a waiver of that or any other right Company may have hereunder. Company will not be liable for any failure to perform its obligations hereunder due to any cause beyond Company's reasonable control, including, but not limited to, mechanical, electronic, or communication failure or degradation (including "line-noise" interference). Any provision of this Agreement which, by its nature, reasonably should survive termination of this Agreement, will survive termination of this Agreement. If any provision of this Agreement is found invalid or unenforceable by a competent jurisdiction, that provision shall be modified or reformed, whenever permissible under the law, to reflect that provision's original intent as closely as possible, or be limited or eliminated to the least extent necessary so that the rest of the Agreement remains in full force and effect. You may not assign or otherwise transfer this Agreement without Company's express written consent. Company may assign this Agreement to any third party at any time without notice to you or your consent. Company may modify and change any provision of this Agreement, including the Company name, at any time without notice by posting the most current version of the Agreement reflecting the changes on the Sites under the "Terms of Service" hyperlink or elsewhere. Your use of the Sites or Services constitutes your acceptance of all of the terms of the then current version of the Agreement, which supersedes all previous versions. This Agreement is the complete and exclusive statement of the mutual understanding of the parties, and supersedes all previous written or oral agreements, communications or understandings of the parties relating to the subject matter of this Agreement.