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Last Modified on August 12, 2013
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
Your use of the Site AND/OR THE SERVICE, or BY clicking “I ACCEPT” if presented with THIS TOU in a click-through format, signifies that you agree to THIS TOU and constitutes your binding acceptance of THIS TOU, including any modifications that TopKit makes from time to time.
1. Third Party Services. TopKit is a general interest website containing articles about a wide variety of subjects, offered for your general research, informational and entertainment purposes only. The information on the Site represents the opinions and perspectives of a variety of contributors to the Site since its inception. We publish video, audio, articles, or other content from current and past contributors. You should assume that we have not independently verified the accuracy, thoroughness, or relevance of the content available on the Site. All of the content and information appearing on the Site is subject to the disclaimers set forth below in Section 14. Some of this content is sponsored by advertisers and TopKit may receive monetary compensation from the third parties mentioned in the content to the extent that readers click through to such third parties’ respective web sites or complete transactions on these third party web sites. In all events, we expressly identify any content (e.g., articles) that is sponsored by a third party advertiser. This content is typically identified as a “Sponsored Article”.
The products and services discussed on the Site are the property of their third party respective owners. We do not make any representations regarding the use of such products and your individual results may vary from the experiences described on our Site. Any opinions, advice, statements, services, offers, or other information expressed or made available by third parties, including other users, are those of the respective author(s) or distributor(s) and not of TopKit. We neither endorse nor are responsible for the accuracy or reliability of any opinion, advice, information, or statement made on this Site by anyone other than authorized TopKit employees acting in their official capacities. Because we do not manufacture or sell the products or services discussed on the Site, it is important that you review all the information on the linked websites including their terms and conditions and privacy policies. Such terms and conditions and privacy policies may be substantially different from ours. When you click on one of the links on our Site, you will be redirected to the owners of these products or services.
4. ToU Updates. TopKit will revise this ToU as the Site and/or Service evolves. The next time you use the Service after such an update, you may be prompted to agree to or decline the revised ToU. You must agree to all revisions if you choose to continue using the Site and/or Service. By using the Site and/or Service, you agree to the then-current version of this ToU as posted on the Site. If at any point you do not agree to any portion of the then-current version of this ToU, you must immediately stop using the Site and/or Service.
5. Termination of Service. TopKit reserves the right to deny service to any person at TopKit’s sole and absolute discretion. The Service is offered with the understanding that TopKit may terminate your access to the Service at any time, for any reason or no reason, including without limitation for any violation of this ToU. TopKit may stop offering and/or supporting the Service at any time.
6. Restrictions and Conditions of Use.
6.1. Use of Site and Service. TopKit permits you to view and use a single copy of the Site solely for your personal, non-commercial use. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, or services obtained from the Site. TopKit reserves the right to add or remove information, content or Services from the Site at any time at its sole discretion.
6.2. No Violation of Laws. You agree that you will not, in connection with your use of the Site or the Service, violate any applicable law or regulation. Without limiting the foregoing, you agree that you will not make available through the Site and/or Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
6.3. License Restrictions. Notwithstanding anything to the contrary, you may not: (i) remove any proprietary notices from the Service; (ii) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Site or Service (or any content thereon); (iii) sell, assign, rent, lease, reproduce, republish, distribute, display, retransmit, link to (except as described below), act as a service bureau, or grant rights in the Site or Service (or any content thereon), including, without limitation, through sublicense, to any other person or entity without the prior written consent of TopKit; or (iv) make any false, misleading or deceptive statement or representation regarding TopKit and/or the Service.
6.4. Misuse of Site and/or Service. You may not connect to or use the Site and/or Service in any way not expressly permitted by this ToU. Without limiting the foregoing, you agree that you will not: (a) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks, upon the Site and/or Service or otherwise attempt to disrupt the Site and/or Service or any other person’s use of the Site and/or Service; or (b) attempt to gain unauthorized access to the Site, Service, accounts registered to other users, or the computer systems or networks connected to the Site and/or Service. Furthermore, you may not use the Site or Service to develop, generate, transmit or store information that: (i) is defamatory, harmful, abusive, obscene or hateful; (ii) in any way obstructs or otherwise interferes with the normal performance of another person’s use of the Site and/or Service; (iii) performs any unsolicited commercial communication not permitted by applicable law; (iv) constitutes harassment or a violation of privacy or threatens other people or groups of people; (v) is harmful to children in any manner; (vi) violates any applicable law, regulation or ordinance; (vii) makes any false, misleading or deceptive statement or representation regarding TopKit and/or the Service; or (viii) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person’s identity (whether a real identity or online nickname or alias).
6.5. No Commercial Uses. You agree that you will not use the Site or the Service for any commercial purpose or the benefit of any third party or charge any person, or receive any compensation for, the use of the Site or Service.
6.6. No Data Mining or Harmful Code. You agree that you will not (a) obtain or attempt to obtain any information from the Service, including without limitation email information of other users; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Service, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the Site or the Service.
7.2. Links to the Site. Unless otherwise set forth in a written agreement between you and TopKit, you must adhere to TopKit’s linking policy as follows: (i) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with TopKit’s and/or its licensors’ names and trademarks, (ii) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with TopKit, (iii) when selected by a user, the link must display the Site on full-screen and not within a “frame” on the linking Site, and (iv) TopKit reserves the right to revoke its consent to the link at any time and in its sole discretion.
8. Social Networks. The Service includes features that operate in conjunction with certain third party social networking websites that you visit (“Social Network Features”). While your use of the Social Network Features is governed by this ToU, your access and use of third party social networking websites and the services provided through these websites is governed by the terms of service and other agreements posted on these websites. It is impossible for TopKit to determine in each case whether your use of the Social Network Features would cause you to violate or breach the terms of service and/or other agreements posted on these third party websites. You understand and acknowledge that your use of the Social Network Features may cause you to violate or breach the terms of service and other agreements posted on these third party websites which could result in the termination of your account and ability to access these third party websites and, in some cases, could give rise to liability for damages. YOU AGREE THAT YOU ALONE ARE RESPONSIBLE FOR YOUR USE OF THE SOCIAL NETWORK FEATURES AND THAT TOPKIT WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR YOUR VIOLATION OR BREACH OF ANY TERMS OF SERVICE OR OTHER AGREEMENT THAT MAY RESULT FROM YOUR USE OF THE SOCIAL NETWORK FEATURES.
9. Intellectual Property.
9.1. Trademarks. TopKit and the TopKit logo are trademarks/service marks of TopKit. Unauthorized use of any TopKit trademark, service mark or logo may be a violation of federal and state trademark laws.
9.2. Copyright. The Site and Service and the content made available through the Site and Service are protected by U.S. and international copyright laws. Except for your use of the content in connection with the Service to which we have the appropriate licensing rights or as authorized in this ToU, you may not use, modify, reproduce or distribute any of the content, or the design or layout of the Site or Service, or individual sections of the content, design or layout of the Site without TopKit’s express prior written permission.
9.3. Copyright Agent. TopKit respects the intellectual property rights of others, and requires that the people who use the Site and the Service do the same. TopKit maintains a policy of termination in appropriate circumstances of users who use the Site and/or Service for repeat infringements. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below:
- Your address, telephone number, and email address;
- A description of the copyrighted work that you claim has been infringed;
- A description of where the alleged infringing material is located;
- A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Copyright Agent: Legal Department
2913 El Camino Real, #609
Tustin, CA 92782
10. Location. The Site and the Service are operated by TopKit in the United States. Those who choose to access the Site, and/or the Service from locations outside the United States do so on their own initiative and are responsible for compliance with applicable local laws.
11. Submitted Content. TopKit does not claim ownership of any materials you make available through the Site. At TopKit’s sole discretion, such materials may be included in the Service in whole or in part or in a modified form. With respect to such materials you submit or make available for inclusion on the Site, you grant TopKit a perpetual, irrevocable, non-terminable, worldwide, royalty-free, fully paid-up and non-exclusive license to use, copy, distribute, publicly perform, display, modify, create derivative works, and sublicense such materials or any part of such materials. You hereby represent, warrant and covenant that any materials you provide do not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant the license specified in this Section 11.
12. Children. The Site and the Service are not directed toward children under 13 years of age nor does TopKit knowingly collect information from children under 13 or allow them to create an account or access account features. If you are under 13, please do not submit any personally identifiable information to TopKit.
13. DISCLAIMER OF WARRANTIES.
THE SITE AND SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE FOR GENERAL INFORMATION AND ENTERTAINMENT PURPOSES ONLY, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. TOPKIT MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SITE OR THE SERVICE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION, INCLUDING THE CONSULTATION WITH OTHER THIRD PARTIES AND EXPERTS AS APPROPRIATE, BEFORE RELYING ON IT. USE OF THE SITE AND/OR THE SERVICE IS AT YOUR SOLE RISK. TOPKIT DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITE AND/OR SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.
Without limiting any of the foregoing, TopKit makes the following specific disclaimers for the following categories of information:
INVESTMENT & FINANCIAL INFORMATION: The content located on the Site should not be interpreted as financial or investment advice nor should it be interpreted as creating any kind of investment advisor or financial advisor relationship. You should NOT rely upon the financial and investment information or opinions provided herein and you should conduct your own independent research and consult with your personal investment advisor before making an investment or financial decision. You are solely responsible for any investment and financial decisions, omissions or actions you take. Neither TopKit, its parent, its affiliates, nor any of their respective agents, employees, information providers or content providers shall have any liability for your financial/investment decisions based upon, or the results obtained from, the content on the Site.
MEDICAL & HEALTH INFORMATION: The content located on the Site should not be interpreted as medical or health advice. The content should not be used to diagnose, treat or cure any medical or health condition nor should it be interpreted as creating any kind of doctor-patient or health/medical advisor relationship. You should NOT rely upon the medical, health, dietary, nutritional or other professional information or opinions provided and you should always speak to your personal health care provider before beginning, changing or stopping any medication or any treatment for a health problem. You are solely responsible for any decisions, omissions or actions you take based on choosing to seek or not to seek professional medical care, or choosing or not choosing specific treatments. Neither TopKit, its parent, its affiliates, nor any of their respective agents, employees, information providers or content providers shall have any liability for your medical, health, dietary or nutritional decisions based upon, or the results obtained from, the content on the Site.
LEGAL INFORMATION: The content located on the Site should not be interpreted as legal advice nor should it be interpreted as creating any kind of attorney-client or legal advisor relationship. You should NOT rely upon the legal information or opinions provided and you should consult with your personal legal advisor; this Site is not a substitute for an in-person consultation with an attorney, as the applicability of the legal principles discussed at this Website may differ substantially in individual situations or in different states or countries. You are solely responsible for any legal decisions or actions you take or omissions you commit. Neither TopKit, its parent, its affiliates, nor any of their respective agents, employees, information providers or content providers shall have any liability for your legal decisions based upon, or the results obtained from, the content on the Site.
14. LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, TOPKIT, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIMS ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE AND/OR SERVICE, EVEN IF TOPKIT AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF TOPKIT OR ANY OF THE RELATED PARTIES EXCEED THE AMOUNT THAT YOU PAID TO US OR OUR DESIGNEES DURING THE SIX (6) MONTHS PRIOR TO THE TIME THE CAUSE OF ACTION GIVING RISE TO LIABILITY AROSE.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of TopKit and its affiliates shall be limited to the fullest extent permitted by law.
15. Indemnification. You agree to indemnify, defend and hold TopKit and the Related Parties harmless from any and all claims, demands, damages or other losses, including reasonable attorneys’ fees, resulting from or arising out of your use of the Site and/or the Service or any breach by you of this ToU or any other policies that TopKit may issue for the Site and/or Service from time to time.
16. Governing Law; Jurisdiction. This ToU is governed by, and will be construed under, the laws of the United States of America and the law of the State of California, without regard to conflict of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided in Section 17 below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Site and/or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located within Los Angeles, California and you agree to submit to the personal jurisdiction and venue of such courts. If either you or TopKit commences a lawsuit for a dispute arising under this ToU or relating to the Site and/or the Service, all of the issues in such action, whether of fact or law, shall be submitted to general judicial reference pursuant to California Code of Civil Procedure sections 638 and 641 through 645.1 or any successor statutes thereto.
17. Binding Arbitration.
17.1. Arbitration Procedures. You and TopKit agree that, except as provided in Section 17.4 below, all disputes, controversies and claims related to this ToU (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 17 and the JAMS Rules, the terms in this Section 17 will control and prevail.
Except as otherwise set forth in Section 17.4, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this ToU, (i) you and TopKit may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND TOPKIT WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
17.2. Location. The arbitration will take place in your hometown area if you so notify TopKit in your notice of arbitration or within ten (10) days following receipt of TopKit’s arbitration notice. In the absence of a notice to conduct the arbitration in your hometown area, the arbitration will be conducted in Los Angeles, California, unless the parties agree to video, phone and/or internet connection appearances.
17.3. Limitations. You and TopKit agree that any arbitration shall be limited to the Claim between TopKit and you individually. YOU AND TOPKIT AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
17.4. Exceptions to Arbitration. You and TopKit agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of your or TopKit’s intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
18.1. ToU Revisions. This ToU may only be revised in a writing signed by TopKit, or published by TopKit on the Site.
18.2. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and TopKit as a result of this ToU or your use of the Service.
18.3. Assignment. TopKit may assign this ToU, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the ToU without TopKit’s prior written consent, and any unauthorized assignment by you shall be null and void.
18.4. Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
18.5. Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in connection with this ToU, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
18.6. No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this ToU shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
18.7. Notices. All notices given by you or required under this ToU shall be in writing and addressed to: TopKit, 3240 El Camino Real, Suite 240, Irvine, CA. 92602, ATTN: Customer Service.
18.8. Equitable Remedies. You hereby agree that TopKit would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
18.9. Entire Agreement. This ToU, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Site and/or Service and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Site and/or Service.