TERMS OF SERVICE
About This Terms of Service
By using the Services or registering with us, you are agreeing to the TOS and may use our Services as long as you comply with the TOS.
NOTICE OF ARBITRATION AGREEMENT
THIS TOS CONTAINS A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER.
All disputes between you and TheTopTV will be resolved by binding arbitration. You thus give up your right to litigate disputes with us in court (except for matters that may be taken to small claims court). Disputes will be decided by a neutral arbitrator and not a judge or jury.
You are entitled to a fair hearing, but arbitration procedures are simpler and more limited than court proceedings. Arbitrator decisions are as enforceable as any court order and are subject to very limited review by a court.
PLEASE REVIEW THE SECTION ENTITLED “HOW TO RESOLVE A DISPUTE WITH US” and see our FAQs for more information.
Using Our Services
To use our Services, you must:
- Comply with applicable laws and regulations and not participate in, facilitate, or further illegal activities;
- Immediately notify us if you learn of a security breach or other illegal activity on the Services;
- Protect your username and password;
- Not post content that contains explicit or graphic descriptions or accounts of sexual acts or is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, or tortious;
- Not engage in an activity that is harmful to us or our customers, advertisers, affiliates, vendors, or anyone else;
- Not use any automated process to access or use the Services or any process, whether automated or manual, to capture data or content from any Service for any reason; and
- Not use any Service or any process to damage, disable, impair, or otherwise attack our Services or the networks connected to the Services.
To prevent violations and enforce this TOS and remediate any violations, we can take any technical, legal, and other actions that we deem, in our sole discretion, necessary and appropriate without notice to you.
You are responsible for obtaining at your own expense all equipment and services needed to access our Services. If you are accessing our Services by a mobile device, your wireless carrier may charge you fees for data, text messaging, and other wireless access or communications services. We do not guarantee that our mobile Services can be accessed through all wireless devices or service plans or are available in all geographical locations.
If you elect to store authentication information, such as a username and password, where others may access it, we are not responsible for any loss of personal data or other consequences if someone other than you uses that information to access our services. If you lose a device, such as a laptop, desktop, or smartphone, or a device is stolen containing your username and password, it is up to you to take all the steps necessary to protect yourself.
When providing you with our Services, we may display advertising within them and you agree to accept the advertising on whatever devices, including a wireless phone, you are using to access our Services.
We may, in our sole discretion, change any aspect of a Service or discontinue a Service without notice.
Using Our Content and Trademarks
Some content on our Services is created and supplied by us or by a vendor, and we or our vendor own all rights, title, and interests in that content and in any compilation, collective work or derivative work created by us using or incorporating this content.
The Services and the content provided on the Services are protected by copyright, trademark, patent, trade secret, international treaties, laws, and other proprietary rights, and also may have security components that protect digital information. You agree that you will not take any action to interfere with anyone’s rights in their content and you will not attempt to circumvent any mechanisms for preventing the unauthorized reproduction or distribution of content.
You may be given the opportunity to download certain content such as music and photos. You may do so only to the extent authorized for that particular content. You may not use the content in a manner that exceeds the rights granted for your use of the content nor may you copy or distribute the content or create a derivative work unless you are authorized to do so. For more information and instructions for requesting permission to use content owned by TheTopTV, please contact us.
The content provided on the Services, including content posted by users, is for general information, discussion and entertainment purposes only. We make no representations or guarantees about any aspect of the content on the Services and do not endorse any opinions expressed by any users. ALL CONTENT IS POSTED "AS IS" AND YOUR USE OR RELIANCE ON ANY CONTENT IS AT YOUR OWN RISK. WE HAVE NO LIABILITY TO YOU FOR THE CONSEQUENCES OF USING OR RELYING ON ANY CONTENT.
You may not use any of our trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.
You may not use or allow others to use your username on a Service or otherwise attempt access to the Services to e-mail, instant message, voice mail, fax, or chat in order to send spam (e-mail), spim (instant messages), or any other unsolicited bulk communication. You may not access the Services to harvest or collect any information about our users for any purpose without our express written authorization. You may not create multiple usernames for sending unsolicited bulk communications or posting advertising or other notice on any Service. Any violation of these provisions may result in immediate termination of your account and legal action.
Fee-Based Services and Billing
We may offer fee-based Services. Our provision of those fee-based Services will be governed by the terms you agree to when you register for the fee-based Service and any terms in this TOS not inconsistent with those terms.
If you register for a fee-based Service, you must designate a payment method and provide us with accurate billing and payment information. All billing information, including payment method, must be kept up to date.
We will bill you for all fee-based Services through the payment method that is associated with any of your fee-based Services. You agree to pay us for all charges incurred under your account, including all applicable taxes, fees, and surcharges. You authorize and direct us to charge your designated payment method for these charges or, if your designated payment method fails, to charge any other payment method you have on file with us. Further, you authorize and direct us to retain information about the payment method(s) associated with your account. If we do not receive payment from your designated payment method or any other payment method on file, you agree to pay all amounts due upon demand by us.
We may charge for fee-based Services in advance and on a daily, monthly, yearly, lump sum, or other basis. We may, in our sole discretion, post charges to your payment method individually or aggregate charges for some or all of your fee-based Services with us.
Every time you use a fee-based Service, you reaffirm that (a) we are authorized to charge your designated payment method; (b) we may submit charges incurred under your account for payment; and (c) you will be responsible for such charges, even if your account is canceled by you or terminated by us.
Surcharges apply if you use certain payment methods, such as payment from your checking or savings account, or telephone bill.
Any trial promotion for a fee-based Service (such as free trial time for a paid Internet access service) must be used within the specified time of the trial. You must cancel your account before the end of the trial period to avoid being charged a subscription fee. However, even during any free trial or other promotion, you will still be responsible for any purchases and surcharges incurred using your account and any sub- or linked-accounts. We reserve the right to limit you to one free trial or promotion of a fee-based Service and to prohibit the combining of free trials, promotions, and other offers.
All charges are nonrefundable unless provided otherwise in the terms you agree to when you register for a fee-based Service.
We, in our sole discretion, may change or discontinue any or all aspects of a fee-based Service without notice, including access to support services, content and other products or services ancillary to the fee-based Service.
We may change our fees and billing methods at any time. We will provide you with notice of any change in your pricing at least thirty (30) days in advance. If you disagree with any proposed change, your sole remedy is to cancel your fee-based Service before the price change takes effect. Your continued use of or subscription to the Service after the price change takes effect constitutes your agreement to pay the new price for the Service. We will not refund any charges if you choose to cancel your account for this reason.
After 30 days from the date of any unpaid charges, your fee-based Service will be deemed delinquent and we may terminate or suspend your account and fee-based Service for nonpayment. We reserve the right to assess an additional 1.5 percent late charge (or the highest amount allowed by law, whichever is lower) per month if your payment is more than 30 days past due and to use any lawful means to collect any unpaid charges. You are liable for any fees, including attorney and collection fees, incurred by us in our efforts to collect any remaining balances from you.
You are responsible for all charges incurred under your account, including applicable taxes, fees, surcharges, and purchases made by you or anyone you allow to use your account (including your children, family, friends, or any other person with implied, actual, or apparent authority) or anyone who gains access to your account as a result of your failure to safeguard your username, password, or other authentication credentials or information.
You must notify us about any billing problems or discrepancies within 90 days after they first appear on your billing method statement. If you do not bring them to our attention within 90 days, you agree that you waive your right to dispute such problems or discrepancies.
If you are using our fee-based dial-up Internet connectivity Service, you are responsible for any telephone charges you may incur to access the Internet. The use of a dial-up Internet connectivity number is the same as making a telephone call to that number and may result in additional charges on your telephone bill depending on your location and calling plan. The locations and area codes listed in connection with these numbers are not necessarily indicative of whether a call will be local or toll free for you. You should select dial-up Internet connectivity numbers carefully. Please call your local phone company to ensure that the dial-up number(s) you select are in the local calling area. This is especially important if there have been changes in area code designations, in your telephone service providers, or in your calling plan.
You may cancel or we may terminate a fee-based Service at any time. You can cancel a fee-based Internet connectivity Service by calling, sending a fax, or mailing a letter to our Customer Service Department. Cancellation will take effect within 3 business days of receipt of your request. We will send you written confirmation of the cancellation of a fee-based Internet connectivity Service. If you cancel near the end of your billing period and are inadvertently charged for the next period’s fee, call us to have the charges reversed. If you subscribe to a fee-based Service other than Internet connectivity Service, you should consult the specific cancellation policies and procedures for those Services. If your fee-based Service is canceled or terminated, any data you have stored on such Services may not be retrievable later.
In the event that your fee-based Service is terminated or canceled, no online time or other credits will be credited to you or can be converted to cash or other form of reimbursement.
We grant you a personal, non-exclusive, non-transferable, limited license to install our software on any computer or device from which you wish to access our Services and to use the software to connect to and use our Services. We may provide automatic upgrades of our software and technology to improve your experience, although these upgrades may not be consistent across all platforms and devices. You agree to accept and to take no action to interfere with such automatic upgrades and related services.
You may not copy our software except to install it on your computer or other devices. You may not sell the software or incorporate it (or any portion of it) into another product. You may not reverse engineer, decompile or disassemble the software or otherwise attempt to derive the source code (except where expressly permitted by law) or the communications protocol for accessing our Services.
You may not modify, adapt or create derivative works from the software or remove proprietary notices in the software.
Exporting of Content or Software
Your use of the Services must comply with all applicable import and export control laws and regulations of the United States and other countries and you must not transfer, by electronic transmission or otherwise, any content, data, or software subject to restrictions under such laws to a national destination, person, or entity or for an end-use prohibited under those laws without first obtaining and complying with government authorization. You must not upload any data or software to our Services that cannot be exported without prior written government authorization and notification, including, but not limited to, certain types of encryption software. The assurances and commitments contained in this section shall survive termination of this TOS.
Disclaimer of Warranties and Limitations on Remedies and Liability WE SUPPLY OUR SERVICES “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE.” WE DO NOT WARRANT OR GUARANTEE THAT ANY INFORMATION AVAILABLE USING OUR SERVICES IS ACCURATE OR RELIABLE OR YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, SECURE, OR FREE FROM ERROR. WE, OUR SUPPLIERS, AND AUTHORIZED DISTRIBUTORS GIVE NO EXPRESS WARRANTIES OR GUARANTEES NOR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGMENT.
YOUR ONLY REMEDY FOR ANY DEFECTIVE SOFTWARE IS REPLACEMENT OF THE SOFTWARE. IN ANY OTHER DISPUTE WITH US, YOUR ONLY REMEDY IS TO STOP USING YOUR ACCOUNT AND CANCEL ANY FEE-BASED SERVICES. IN NO EVENT WILL OUR LIABILITY TO YOU EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID DURING A ONE-MONTH PERIOD.
WE, OUR SUPPLIERS, AND AUTHORIZED DISTRIBUTORS ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF THE SERVICES.
SOME STATES DO NOT ALLOW US TO LIMIT OUR LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES OR EXCLUDE CERTAIN WARRANTIES. IN THOSE STATES, TheTopTV’S LIABILITY AND WARRANTIES ARE LIMITED TO THE EXTENT PERMITTED BY LAW.
How to Resolve a Dispute with Us
We offer the following process to help you resolve a complaint or dispute that you may have with us. Please read this section carefully.
Our customer support department, which you can reach at [email protected], can help you resolve many of your concerns. If our customer support team is unable to resolve your complaint, you agree to take the following steps to resolve any dispute you may have with us.
Step 1. Notice of Legal Dispute
You must first try to resolve any formal complaint or dispute with us through our Notice of Legal Dispute process. You begin by submitting a “Notice of Legal Dispute” by U.S. Mail to:
TheTopTV Attention: Notice of Legal Dispute 5042 Wilshire Blvd, Los Angeles, CA 90036
A “Notice of Legal Dispute” is a written form in which you provide your name, address, contact information, your TheTopTV username, the facts regarding your Dispute, and the relief you are requesting from us.
You and we will attempt to resolve any Dispute through informal negotiation within sixty (60) days from the date the Notice of Legal Dispute is received by a party. After sixty (60) days, you or we may initiate arbitration as described below.
You agree that the term “Dispute” in this TOS will have the broadest meaning possible. It applies to any dispute, action, or other controversy between you and us concerning the Services (including their price) or this TOS, whether in contract, warranty, tort, laws or regulation. The term also applies to any dispute over the validity, enforceability or scope of this arbitration provision.
Step 2: Arbitration
If your Dispute is not resolved to your satisfaction within 60 days from when we received your Notice of Legal Dispute, you and we agree to arbitrate all Disputes between us. As we explain below, you and we may also have the right to bring an individual action before a small claims court for certain claims. You agree that arbitration or a small claims action will be your sole and exclusive remedy to resolve any dispute with us.
The Federal Arbitration Act applies to this TOS. By agreeing to arbitrate, you are giving up the right to litigate (or participate in as a party or class member) any and all Disputes (except small claims) in court before a judge or jury. Instead, a neutral arbitrator will resolve all Disputes. To read more about arbitration, visit www.adr.org.
The American Arbitration Association (the “AAA”) will conduct any arbitration under its Commercial Arbitration Rules. If you are an individual and use the services for personal or household use, the AAA’s Consumer Arbitration Rules will apply. You may begin arbitration with us by completing a Demand for Arbitration form, available by clicking here. The completed form(s) should be returned directly to the AAA. The AAA will assign someone to manage your case. You will be contacted with instructions for continuing the arbitration process. Be sure to keep a copy of everything you send to the administrator of your arbitration or us.
If your claim in arbitration is $75,000 or less, we will pay your filing fee, as well as other filing, AAA and arbitrator’s fees and expenses. For all other arbitrations you initiate, the AAA rules will govern payment of filing fees and the AAA’s and arbitrator’s fees and expenses. Information about filing fees for commercial arbitrations can be found in Section L-3 of AAA’s Commercial Arbitration Rules. If we, instead of you, initiate arbitration, we will pay all filing, AAA, and arbitrator’s fees and expenses. You may initiate arbitration only in your county of residence or in Loudoun County, Virginia. The AAA rules will determine whether the arbitration will take place through written submissions by you and us, by telephone, or in person.
We will not seek to recover from you our attorney’s fees or expenses in any arbitration. Fees and expenses are not counted in determining how much a Dispute involves.
Please be advised that if an arbitrator finds that the arbitration was frivolous or brought for an improper purpose, then we will seek to recover from you our AAA arbitrator’s fees and expenses, and/or your filing fees that we paid.
We offer the following incentive for users who arbitrate any Dispute with us for any claim that is under $10,000. If you reject our last written proposal to resolve your claim before an arbitrator was appointed (the “Proposal”), and the arbitrator awards you more than the amount of our Proposal, we will: (i) pay you the greater of the award or $1,000; (ii) pay twice your reasonable attorney’s fees, if any; and (iii) reimburse any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration.
Small Claims Option
You may also litigate any Dispute in small claims court in your county of residence or Loudoun County, Virginia, USA, if the Dispute meets all requirements to be heard in the small claims court. However, if you initiate a small claims case, you are responsible for all court costs and you are not entitled to the incentives we offer to you above for arbitration.
You Waive Any Class Action Claim
Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Class arbitrations, class actions, private attorney general actions, consolidation of your Dispute with other arbitrations, or any other proceeding in which either party acts or proposes to act in a representative capacity are not permitted and are waived by you, and an arbitrator will have no jurisdiction to hear such claims.
If a court finds that the class action waiver in this section is unenforceable as to all or some parts of a Dispute, then the class action waiver will not apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of this Dispute resolution section is found to be illegal or unenforceable, that provision will be severed with the remainder of this section remaining in full force and effect.
You agree that the laws of the Commonwealth of Virginia govern this contract and any claim or Dispute that you may have against us, without regard to Virginia’s conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall have no applicability.
Unless you and we agree otherwise, in the event that the Agreement to arbitrate above is found not to apply to you or to a particular claim or Dispute as a result of a decision by the arbitrator or a court order, you agree that any Disputes or claims that you may have against us reside in and will be resolved by a state or federal court located in Arlington County, Fairfax County, the City of Alexandria, or Loudoun County, Virginia and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.
PLEASE NOTE THAT BY AGREEING TO THESE TERMS OF SERVICE, YOU ARE: (1) WAIVING CLAIMS THAT YOU MIGHT OTHERWISE HAVE AGAINST US BASED ON THE LAWS OF OTHER JURISDICTIONS, INCLUDING YOUR OWN; (2) IRREVOCABLY CONSENTING TO THE EXCLUSIVE JURISDICTION OF, AND VENUE IN, STATE OR FEDERAL COURTS IN THE COMMONWEALTH OF VIRGINIA OVER ANY DISPUTES OR CLAIMS YOU HAVE WITH US; AND (3) SUBMITTING YOURSELF TO THE PERSONAL JURISDICTION OF COURTS LOCATED IN THE COMMONWEALTH OF VIRGINIA FOR THE PURPOSE OF RESOLVING ANY SUCH DISPUTES OR CLAIMS.
Claims or Disputes must be filed within one year.
To the extent permitted by law, any claim or Dispute under this TOS must be filed within one year in small claims court, an arbitration proceeding or in court, as applicable. The one-year period begins on the date when a Notice of Legal Dispute is filed with us. You agree you are permanently barred to bring a claim for your Dispute if you do not file your claim within one year.
General Legal Terms
This TOS along with any supplemental terms for some Services constitutes the whole legal agreement between you and TheTopTV and replaces any prior agreements between you and TheTopTV. We may modify this TOS from time to time. If you do not agree to the changes, stop using our Services (and remember to cancel any fee-based services) before the changes take effect. Your continued use of or subscription to a Service after the effective date of any changes means that you agree to the changes.
If a court of law finds that any provision of this TOS is invalid or unenforceable, the remaining provisions will continue to be valid and enforceable.
We may assign this contract at any time without notice to you. You may not assign this contract to anyone else.
Registrations, agreements, and terms presented by us electronically to you have the same effect as one in writing and are legally enforceable as a signed writing. You also consent to receive all communications regarding our Services electronically from us.
When you sign up for Services and provide us with your telephone number or mobile phone number, you agree that we may contact you from time-to-time about the Services.
YOU GIVE US CONSENT TO USE AUTODIALED AND PRERECORDED MESSAGES TO CONTACT YOU AT THE NUMBER YOU PROVIDE TO US.
We may use the phone number that you provide to us when you open your account, when you add a telephone number to your account information, when you provide it to one of our employees or customer support, or by contacting us from your number. If you provide us with a mobile number, you consent to receive SMS or text messages at that number. You may stop further text messaging by simply texting “STOP” per the instructions we provide to you. Standard telephone minute and text charges may apply if we contact you.
We will not share your phone number with non-affiliated third parties for their purposes without your consent, but we may share your phone number with our service providers, such as billing or collection companies, who may contact you using auto-dialed or prerecorded message calls or text messages.
The delivery of any communication from us is effective when sent by us, regardless of when you receive or read the communication. In addition, we are not responsible for communications that do not reach you if you have not provided us with your current contact information. If you decided not to receive notices from us electronically, we may cancel your account and terminate access to the Services.
We may be required by law to release information to a third party about your account, including the content of e-mail. Except as prohibited by law, we will send you notice if we plan to comply with a civil subpoena related to your account. You agree to hold us harmless for the release of any information related to your account in connection with a civil subpoena including, but not limited to, any claims that you did not receive notice of the civil subpoena from us.