TopFans Standard Terms and Conditions

1. acceptance of terms; modification of terms

TopFan, Inc. (“Company”, “we”, “us”, or “our”) owns, controls and operates the platform known as “TopFans”, a web-based, content streaming and sharing service available at the website https://www.topfan.com (including, without limitation, all subdomains and related websites owned and/or operated by us that redirect (i.e., have a link) to https://www.topfans.com, collectively the “Site”), and through each of the TopFan-branded desktop and mobile applications (including any backend developer applications, collectively, the “App” and together with the Site, the “Platform”). These Standard Terms and Conditions (these “Standard Terms”) and all other terms of service, terms and conditions, policies, guidelines, and documents incorporated by reference herein (collectively, but excluding these Standard Terms, the “Ancillary Documents”), as they may be in effect and modified from time-to-time, including, without limitation, the Creator Terms of Use, Fans Terms of Use, Referral Program Terms and Conditions, and Privacy Policy (collectively, the “Terms of Service”), constitute a legally binding agreement between Company and each registered or unregistered end user of the Platform (each, a “User”, “you” or “your”, and as described in more detail in the Ancillary Documents).

By accessing and using the Platform, or any portion thereof, in any manner, including, but not limited to, visiting or browsing, or creating or publishing Content (as defined in the Creator Terms of Use) on, the Platform, you are deemed to have read, accepted, executed, and be bound by the Terms of Service. YOU MUST BE AT LEAST THIRTEEN (13) YEARS TO ACCESS AND USE THE PLATFORM; PROVIDED, IF YOU ARE BETWEEN THE AGES OF THIRTEEN (13) AND EIGHTEEN (18) YEARS OLD (OR ANY GREATER AGE REQUIRED TO BE DEEMED TO HAVE REACHED THE AGE OF MAJORITY UNDER THE APPLICABLE LAW OF THE STATE OR JURISDICTION OF YOUR PRIMARY RESIDENCE), YOU MAY ONLY ACCESS AND USE THE PLATFORM WITH THE PRIOR PERMISSION OF YOUR PARENT OR LEGAL GUARDIAN, AND YOU REPRESENT AND WARRANT TO US THAT YOU HAVE SUCH PERMISSION AND THAT YOUR PARENT OR LEGAL GUARDIAN HAS REVIEWED AND DISCUSSED THE TERMS OF SERVICE WITH YOU. SINCE CERTAIN CONTENT (e.g., STILL IMAGES OR LIVE/RECORDED VIDEO CONTAINING PARTIAL OR FULL NUDITY, ETC.) MADE AVAILABLE ON OR THROUGH THE PLATFORM MAY NOT BE SUITABLE FOR MINORS, WE RECOMMEND THAT PARENTS OR LEGAL GUARDIANS WHO PERMIT THEIR CHILD TO ACCESS AND USE THE PLATFORM SUPERVISE SUCH CHILD’S ACTIVITY, INCLUDING, WITHOUT LIMITATION, ANY ENGAGEMENT WITH ANY CONTENT OR OTHER USER THEREON.

Company may change or amend these Standard Terms and Conditions or any of the Ancillary Documents at any time at its sole and absolute discretion. In addition, from time to time Company may (i) implement changes to existing, or release/introduce new tools, products, services, functionalities, features, and/or other updates to the Platform or (ii) release new versions of the Platform (e.g., desktop or mobile applications) (collectively, “Updates”), which may result in changes or amendments to the Terms of Service. All Updates to the Platform implemented by Company will be subject to the Terms of Service, and any additional terms and conditions as may apply to such Updates.

We therefore encourage you to review the Terms of Service fully and carefully and to check the Terms of Service periodically for any Updates. If Company makes a material change or amendment to the Term of Service it will provide a notification of such changes or amendments on or through the Platform and/or notify all Users of such changes or amendments via e-mail, which changes, or amendments will be effective automatically upon the posting of such notification or as of the date of delivery of such notification via e-mail. You agree that all agreements, notices, disclosures, and other communications we provide to you electronically satisfy any legal requirement that such communications be in writing. Notwithstanding the terms of this paragraph, no revisions to the Terms of Service will apply to any dispute between you and Company that arose prior to the effective date of such revision.

IF ANY PROVISION OF THE TERMS OF SERVICE OR ANY FUTURE CHANGES OR AMENDMENTS ARE UNACCEPTABLE TO YOU, DO NOT USE OR CONTINUE TO USE THE PLATFORM AND DO NOT CREATE/REGISTER OR CONTINUE TO MAINTAIN AN ACCOUNT. YOUR CONTINUED USE OF THE PLATFORM FOLLOWING THE POSTING OF ANY NOTICE OF ANY CHANGE OR AMENDMENT TO THE TERMS OF SERVICE SHALL AUTOMATICALLY CONSTITUTE YOUR ACCEPTANCE AND AGREEMENT TO SUCH CHANGE, AMENDMENT OR UPDATE.

2. OWNERSHIP OF PLATFORM IP; TRADEMARKS

Company hereby grants each User a limited, non-exclusive, revocable, royalty-free, non-transferable, non-assignable, non-sublicensable, right and license to access and make personal use of the Platform, the Platform IP (defined below), and Content published by Creators, solely as permitted by the tools, products, services, functionalities and/or features made available to Users of the Platform, subject in all respects to these Terms of Service, and not for redistribution of any kind (the “Platform License”). This Platform License does not include any resale or, except as expressly set forth herein commercial use of (i) the Platform, (ii) User Data (defined herein), (iii) any content, material, information, data, Trademarks, Platform pages, software, code, and other original works of authorship and/or intellectual property (including, without limitation, any applicable copyrighted works) uploaded to, or incorporated into, the Platform by or on behalf of Company (collectively, “Platform Elements”), which Platform Elements are and shall remain the sole and exclusive property of Company (or the applicable third-party licensor thereof), or (iv) any Content published or otherwise made available on or through the Platform by any other Creator, which Content is and shall remain the sole and exclusive property of the applicable Creator (or the applicable third-party licensor thereof), subject to the Content License (defined in Creator Terms of Use) in and to such Content granted pursuant to the Creator Terms of Use.

As between you and Company, Company retains all right, title and interest in and to the Platform, throughout the world, in perpetuity, including, without limitation, (i) all text, graphics, typefaces, formatting, graphs, designs, editorial content, HTML, look and feel, software, and data, (ii) all business processes, procedures, methods, and techniques used in the Platform, (iii) all other materials and content uploaded or incorporated into the Platform, including, without limitation, all Platform Elements, but excluding Content, which as between Company and the applicable Creator is owned by the applicable Creator subject to the Content License granted to Company pursuant to the Creator Terms of Use, (iv) all associated trade secret rights and other intellectual property and proprietary rights recognized anywhere in the world, and (v) the coordination, selection, arrangement and enhancement of the foregoing as a Collective Work under the United States Copyright Act, as amended (collectively, “Platform IP”), and nothing contained herein shall be construed as creating or granting to you any right, title or interest in and to such Platform IP other than the express license granted therein to Users hereunder. Platform IP is protected in all forms, media and technologies now known or hereinafter developed as well as by the domestic and international laws of copyright, trademarks, patents, and other proprietary rights and laws.

The Company trademarks, service marks, and logos (the “Company Trademarks”) used and displayed on the Platform are the Company’s registered and unregistered trademarks or service marks. Other product and service names used and displayed on the Platform may be trademarks or service marks owned by third parties (the “Third-Party Trademarks,” and, collectively with the Company Trademarks, the “Trademarks”). Except as otherwise permitted by law, you may not use the Trademarks to disparage Company or the applicable third-party owner thereof, the Company’s or the applicable third-party’s products or services (including, without limitation, the Platform), or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from the Platform without Company’s prior express written consent. All goodwill generated from the use of any Trademark will inure solely to the benefit of the Company or the applicable third-party owner thereof.

Violation of this Platform License may result in infringement of intellectual property and contractual rights of Company, other Users of the Platform, or other third parties, which is prohibited by law and could result in substantial civil and criminal penalties.

3. THIRD PARTY NOTICES, CONTENT and COMMUNICATIONS

Company disclaims all liability for any communications directed to you from any third-party directly or indirectly in connection with the Platform (“Third-Party Communications”) that you may receive, and any actions you may take or refrain from taking as a result of any Third-Party Communications. You are solely responsible for assessing and verifying the identity and trustworthiness of the source and content of any Third-Party Communications. Company assumes no responsibility for verifying, and makes no representations or warranties regarding, the identity or trustworthiness of the source or content of any Third-Party Communications.

The Platform may include third-party content, third-party integrated API service providers, or links (such as hyperlinks) to third-party websites, products or services (including external websites that are framed by the Platform as well as any advertisements displayed in connection therewith) that are not owned or controlled by Company (collectively, “Third-Party Content”). They are provided as an information service, for reference and convenience only. Company does not control any such Third-Party Content and is not responsible for their (i) availability or accuracy, or (ii) content, advertising, or products or services. Company does not make any representations or warranties with respect to any Third Party Content and all use thereof is provided on an “as is” and “as available” basis and your use thereof is at your own risk. Inclusion of any Third-Party Content on the Platform does not constitute or indicate Company’s endorsement thereof and Company shall not be liable or responsible for any Third-Party Content transmitted through the Platform. You shall be subject to any additional terms and conditions of use, guidelines, or rules applicable to any Third-Party Content that you access through the Platform (“Third-Party Terms”). All such Third-Party Terms are hereby incorporated by reference into the Terms of Service. You acknowledge and agree that Company will not and cannot censor or edit any Third-Party Content and that you shall assume the sole responsibility for, and risk associated with your use of Third-Party Content, including compliance with the terms and conditions of use, privacy policies, or practices associated therewith. Accordingly, Company encourages you to be aware when you leave the Platform and/or otherwise interact with Third-Party Content via the Platform and to read the terms and conditions of use and privacy policies associated with any such Third-Party Content.

By using the Platform, you expressly relieve and hold Company harmless from any and all liability arising from your use of any Third-Party Communications and Third-Party Content, including any loss or damage incurred as a result of any dealings between you and any third parties, or as the result of the presence of such Third-Party Content on the Platform or the failure of such Third-Party Content to function as intended. It is your responsibility to evaluate the content and usefulness of the information obtained from Third-party Content.

4. limitations on platform use

The Platform may not be used, modified, reproduced, duplicated, copied, published, distributed, sold, resold, transformed, redesigned, reconfigured, retransmitted, or otherwise exploited by you for any purpose except as facilitated by the tools, products, services, functionalities and/or features made available to Users of the Platform, subject to the Terms of Service, or without the express prior written consent of Company or the applicable owner of Third-Party Content, in each instance.

Without limiting the foregoing, while using the Platform, you may not conduct any of the following activities:

• Defame, abuse, harass, stalk, threaten, bully, or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of Company or other Users, or use information learned from the Platform to otherwise defame, abuse, harass, stalk, threaten, bully, intimidate or mislead, or otherwise violate the legal rights of Company or any other User outside of the Platform.
• Impersonate another person or User or knowingly allow any other person or entity to use your identification or account to post or view comments on, or otherwise utilize, the Platform.
• Use the Platform for any purpose in violation of applicable local, state, national, or international law.
• Use or otherwise export or re-export the Platform or any portion thereof, or Content in violation of the export control laws and regulations of the United States of America.
• Upload any material or software files that contain viruses, Trojan horses, corrupted files, malware, spyware, bugs, or any other similar programs that may damage or infiltrate the operation of the Platform or any other User’s computer or mobile device.
• Restrict or inhibit any other User from using and enjoying the Platform.
• Use a robot, spider, manual and/or automatic processes, or devices to data-mine, data-crawl, scrape or index the Platform in any manner (excluding SEO-related scraping (e.g., Google indexing)).
• Hack or interfere with the Platform, its servers or any connected networks.
• Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by Company.
• Use the Platform to collect User Data by electronic or other means.
• Use the Platform in a manner which is false or misleading (directly or by omission or failure to update information) or for the purpose of accessing or otherwise obtaining Company’s trade secret information for public disclosure or other purposes.
• Cause or induce any third-party to engage in the restricted activities above.

The above restrictions supplement and, based on your use of the Platform, are in addition to any other applicable restrictions that are set forth in the Ancillary Documents, including, but not limited to, the Creator Terms of Use and the Fans Terms of Use.

Company will take appropriate investigative and legal action for any illegal or unauthorized use of the Platform. You acknowledge that violation of any of the restrictions set forth in this Section 4 and/or the Ancillary Documents may subject you to third-party claims and none of the rights granted to you in the Terms of Service may be raised as a defense against any third-party claims arising from any such violation.

If you encounter or learn of any User who has violated the Terms of Service in any manner, including, without limitation, by violating any of the Platform usage restrictions set forth above and/or the Ancillary Documents, please email Company at [email protected] or inform us through the applicable reporting functionality offered via the Platform. Company may, but is not obligated to, take any of the actions set forth in Section 6 below against Users who violate any of the restrictions set forth in the Terms of Service.

5. REPRESENTATIONS AND WARRANTIES

You represent and warrant that that you have the right, authority and capacity to enter into, and to be bound by, the Terms of Service and to abide by the terms and conditions of the Terms of Service, and that you will so abide.

6. unlawful activity

We reserve the right to investigate complaints or reported violations of the Terms of Service and to take any action we deem appropriate, including, but not limited to, reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to Users’ Account, profile name, e-mail addresses, usage history, uploaded Content, IP addresses, and traffic information.

We further reserve the right, in our sole discretion and without notice or liability to you, to disable your Account, suspend or terminate your use of, or access to, the Platform (either in whole or in part), at any time for any reason with any conditions, including, but not limited to, if we believe that you have violated or acted inconsistently with the Terms of Service or any applicable law or that you have engaged in conduct that we determine to be inappropriate or unacceptable in our sole discretion, including, without limitation, any violation of the restrictions set forth in Section 4 hereof. We may also disable your Account, suspend or terminate your access to the Platform, if you file any claim against Company or file any claim that involves the Platform.

We also reserve the right, in our sole discretion, to seek and obtain any other remedies available to us pursuant to any applicable laws and regulations or at equity as a result of your breach of the Terms of Service or any other act or omission by you that gives rise to a claim by Company.

We also reserve the right, in our sole discretion, to seek and obtain any other remedies available to us pursuant to any applicable laws and regulations or at equity as a result of your breach of the Terms of Service or any other act or omission by you that gives rise to a claim by Company.

7. Digital Millennium Copyright Act

Company has registered an agent with the United States Copyright Office in accordance with the Digital Millennium Copyright Act (the “DMCA”) and avails itself of the protections under the DMCA. Company reserves the right to remove any Creator Content that allegedly infringes another party’s copyright. Company will terminate, in appropriate circumstances, Users who are repeat infringers of another party’s copyright. Notices to Company regarding any alleged copyright infringement should be directed to Company via email at: [[email protected]]. This email address is only for reporting suspected copyright infringement. Contact information for other matters is provided elsewhere in these Terms of Service.

Notification of Alleged Copyright Infringement: Company respects the intellectual property rights of others and expects all Users to do the same. If you believe in good faith that your work is being used on the Platform in a way that constitutes copyright infringement under applicable law, you may provide us with a written notice containing the following:

• Your name, address, telephone number, and email address;
• A description of the copyrighted work that you claim has been infringed and an explanation as to why you think an infringement has taken place;
• A description of where the material that you claim is infringing is located on the Platform, sufficient for Company to locate the material (e.g., the URL);
• A statement that you have a good faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or applicable law;
• A statement by you under penalty of perjury under applicable law that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
• Your electronic or physical signature.

United States law imposes substantial penalties for falsely submitting a notice of copyright infringement.

In addition to the above, and in relation to a sound recording available on the Platform, you may also click on the relevant Content’s “Report” link available directly on the Platform, which will trigger a notice to us to institute a review and potential takedown. You understand that we may forward your notification to the author of the allegedly infringing content for a counter statement. We also reserve the right to transmit a User’s contact data to a rights owner who has substantiated an infringement by such User for the purposes of enforcing its statutory rights.

Counternotice to Restore User Content Removed for Alleged Copyright Infringement: If you believe that your Content has been removed by mistake or misidentification, you may provide us with a written counter-notification containing the following information:

• Your name, address, telephone number, and email address;
• A description of the material that was removed;
• A description of where on the Platform the material that was removed previously appeared (e.g., URL);
• A statement that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification;
• A statement by you under penalty of perjury under applicable law that the information in your counter-notice is accurate;
• A statement that you consent to the jurisdiction of the U.S. District Court for the judicial district in which your address is located, or if your address is outside of the United States, the District of Las Vegas, and that you will accept service of process from the person who filed the original DMCA notice or an agent of that person; and
• Your electronic or physical signature.

8. Trademark and other Intellectual Property Infringement

You agree not to display or use in any manner any (i) trademark, service mark, logo, design, insignia, trade dress, slogan, or other brand features, either registered under the laws of the United States or any other country or jurisdiction, or unregistered and existing at common law, belonging to Company or any third-party, or (ii) any text, image, video, or other item of content, that violates any other intellectual property right of any third-party, including, without limitation, any right of privacy or publicity, unless you obtain Company’s or such third-party’s prior written permission.

Company reserves the right to remove any Content that allegedly infringes another party’s trademark, service mark or other intellectual property right. Company will terminate, in appropriate circumstances, Users who are repeat infringers of another party’s trademark or service mark. Notices to Company regarding any such alleged infringement should be directed to Company via email at: [email protected]] and shall include all the same information required to be included in any copyright infringement notice as set forth in Section 7 above. This email address is only for reporting suspected trademark infringement. Contact information for other matters is provided elsewhere in these Terms of Service.

If we remove your Content because of an infringement report provided to us pursuant to this Section 8, you will receive a notification from us that includes the name and email address of the rights holder who made the report and/or the details of the report. If you believe such Content should not have been removed, you can follow up with the rights holder directly to try to resolve the issue. Company does not provide a counter-notice or appeal mechanisms for claims of trademark infringement and disclaims any liability for claims you might make regarding mistaken or misidentified trademark infringement notice and takedown requests.

9. Parents and Legal Guardians; Child Safety; Reporting Non-Permitted Minor Content

We understand parental concerns about child safety, particularly when it comes to the types of websites and mobile applications that children access and use, as well as the type of content that children view, and the types of third-party interactions that children have, through such websites and mobile applications. We share these same concerns and therefore recommend that all parents/legal guardians oversee the internet and mobile device use by their children, and we encourage parents to have conversations with their children about safe internet practices and to exercise discretion when sharing pictures and videos, communicating with others, and consuming content online.

In connection with the foregoing, if any parent/legal guardian (i) discovers that his/her child is using the Platform and/or has created an Account and such child is under the age of 13, or (ii) did not give permission, or no longer consents to, his/her child to use or continue using the Platform and such child is between the age of 13 and 18 (or any other applicable age required to be deemed to have reached the age of majority under the applicable law of the state or jurisdiction of such child’s primary residence), such parent/legal guardian can send us an email at [email protected] to request that we remove and disable such child’s Account, and if applicable, delete all data collected in connection with such child’s Account and use of the Platform, and we will work with such parent/legal guardian to comply with such request as promptly as practicable.

If you discover any Content on the Platform featuring any minor person for whom you are the parent or legal guardian, and such Content was uploaded to the Platform without your consent, you can send us a takedown request at [[email protected]], or you can click on the relevant Content’s “Report” link available directly on the Platform, which will trigger a notice to us to institute a review and takedown of such Content. You understand that we may forward your takedown request or notification to the author of the allegedly unauthorized content for a counter statement.

Any parent/legal guardian is welcome to send us an email at [[email protected]] with respect to any other questions/concerns that he/she may have regarding the Platform and we will do our best to answer as promptly as practicable.

10. Advertising/Sponsorships on Platform

The Platform may contain advertising and sponsorships. Advertisers and sponsors are responsible for ensuring that material submitted for inclusion on the Platform is accurate and complies with applicable laws, including, without limitation, FTC and FCC rules, regulations and guidelines, with respect to product/service endorsements and paid sponsorships/advertisements. Company will not be responsible for the illegality of or any error or inaccuracy in advertisers’ or sponsors’ materials or for the acts or omissions of advertisers and sponsors.

11. DISCLAIMER OF WARRANTIES

TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR”.

YOUR USE OF THE PLATFORM IS ENTIRELY AT YOUR OWN RISK. THE PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, CURRENTNESS, COMPLETENESS OR RELIABILITY OF THE PLATFORM, ANY PLATFORM IP OR CONTENT OR MATERIAL PROVIDED THROUGH THE PLATFORM OR THIRD-PARTY CONTENT LINKED TO THE PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE PLATFORM, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD-PARTY THROUGH THE PLATFORM OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, OTHER THAN AS PROVIDED HEREIN. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE PLATFORM WILL BE UNINTERRUPTED OR THAT THE PLATFORM WILL BE ERROR-FREE, or that defects will be corrected or that it will always be accessible; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY CONTENT, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE PLATFORM. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE PLATFORM IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. COMPANY AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.

12. limitation of liability

YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS ONLY WILLING TO PROVIDE THE PLATFORM IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND THIRD PARTIES. THEREFORE, YOU AGREE NOT TO HOLD COMPANY, ITS PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, AND PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, OR ANY OF SUCH PARTIES’ RESPECTIVE AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, MANAGERS, MEMBERS, VENDORS, THIRD-PARTY LICENSORS, CORPORATE PARTNERS, PARTICIPANTS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, “COMPANY PARTIES”) LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE PLATFORM, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY), ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY COMPANY OR ITS AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF YOUR INFORMATION.

UNDER NO CIRCUMSTANCES WILL ANY COMPANY PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE PLATFORM, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT ANY COMPANY PARTY IS LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED ONE HUNDRED U.S. DOLLARS ($100.00). ANY DISPUTE YOU HAVE WITH ANY THIRD-PARTY ARISING OUT OF YOUR USE OF THE PLATFORM, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY CARRIER, COPYRIGHT OWNER OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD-PARTY, AND YOU IRREVOCABLY RELEASE THE COMPANY PARTIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.

13. indemnification

You hereby agree to indemnify, defend and hold harmless, the Company Parties, from and against any and all losses, liabilities, damages, costs or expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim, action, or proceeding brought by a third-party based on: (i) any breach of any representation, warranty, covenant or obligation of yours under the Terms of Service; or (ii) your violation of any applicable law or regulation; or (iii) your violation of any third-party right, including, but not limited to, any intellectual property right. Company shall promptly notify you of any such claim, and you shall assume control of the defense of such claim upon Company’s request. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the written consent of Company.

14. governing law

The Terms of Service are governed by and construed in accordance with the internal laws of the State of Nevada, without reference to principles of conflicts of laws.

15. dispute RESOLUTION; ARBITRATION

Disputes. You and Company agree that any dispute, claim or controversy arising out of or relating to the Terms of Service or the breach, termination, enforcement, interpretation or validity thereof or the use of the Platform, including, without limitation, any Content contained thereon (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Company are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Company otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution; Arbitration" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of the Terms of Service.

Arbitration Rules. THIS SECTION PROVIDES FOR RESOLUTION OF DISPUTES THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY. All disputes arising under or relating to the Terms of Service or to your use of (or inability to use) the Platform shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes (“Supplementary Procedures”), as amended by the terms of the Terms of Service. The Supplementary Procedures are available online at www.adr.org. To the extent that the arbitrator deems reasonable, the arbitrator may conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances. Any in-person appearances requested by the arbitrator shall be held in Las Vegas in the State Nevada. The arbitrator’s decision shall be based upon the substantive laws of the State of Nevada without regard to its principles of conflicts of law. Arbitration proceedings shall be conducted in English and shall be conducted in a manner that preserves confidentiality. The arbitrator’s decision shall follow the plain meaning of the relevant documents and shall be final and binding. The award rendered by the arbitrator(s) may be confirmed and enforced in any court having jurisdiction thereof. The foregoing shall not preclude Company from seeking any injunctive relief in U.S. state or federal courts for protection of its intellectual property rights (including the rights of its licensors), and you agree to exclusive jurisdiction by the federal and state courts located in Las Vegas, Nevada, and waive any jurisdictional, venue or inconvenient forum objections to such courts.

Changes. Notwithstanding Company’s right to amend or modify the Terms of Service, if Company changes this "Dispute Resolution" section after the date you first accepted the Terms of Service (or accepted any subsequent changes to the Terms of Service), you may reject any such change by sending us written notice (including by contacting us at [email protected]) within 30 days of the date such change became effective, as indicated in the date of Company’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Company in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted the Terms of Service (or accepted any subsequent changes to the Terms of Service).

You agree that regardless of any applicable statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Platform, or Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever and fully barred.

16. PLATFORM access requirements; updates and maintenance

Access to and use of the Platform requires a compatible mobile device/web browser and internet connection. It also requires that we have access to your device identifier and location information. Although we are working to ensure that the Platform is compatible across various devices, we cannot guarantee that the Platform will work with all devices.

It is your responsibility to ensure that your computer or mobile device complies with the requirements for accessibility. Your use of the Platform may vary in functionality, availability and quality depending on the type of the device and the operating system that you use, and Company accepts no responsibility for any lack of functionality that is due to your equipment (including your device, internet connection, operating system or settings and software).

It is your responsibility to pay for all costs and expenses that you may incur while using the Platform (including, but not limited to, all telephone call or line charges or Internet data service access charges).

Your access to the Platform may be interfered with by numerous factors outside of Company’s control including, but not limited to, telecommunications and/or wireless network service disruptions, computer or mobile device viruses and bugs, tampering, unauthorized intervention, fraud, technical failures, and server, equipment or software defects. Company is not responsible and will have no liability for any failures of the Internet or any data or telecommunications equipment, system or network used in connection with the Platform. In addition, perfect security does not exist on the Internet; Company cannot and does not guarantee that any User Data or other personally identifiable information submitted to the Platform and selected by you to remain private (as applicable) will not become public under any circumstances.

Company shall not be liable to any User in any way as a result of any temporary or permanent suspension of the Platform due to (i) repair or maintenance or (ii) implementation of any Update. Furthermore, Company is under no obligation to undergo an Update of the Platform to the extent any Platform Elements, Content and/or other tool, product, service, functionality, or feature thereof is out of date. The terms of the Platform License granted to you hereunder shall apply in full to any Update. Following an Update, you may not be able to use the Platform until you have downloaded the latest version and accepted any new terms.

17. No Agency

No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created between you and Company by this Agreement.

18. assignment

Company may freely assign, sub-contract and/or otherwise transfer any or all of its rights and/or obligations under the Terms of Service to any company, firm or person. You may not transfer your rights or obligations under the Terms of Service to anyone else.

19. waIver and severability of terms; entire agreement

Failure by Company to enforce any provision(s) of the Terms of Service will not be construed as a waiver of any provision or right. If any provision of the Terms of Service is deemed unlawful, void or unenforceable by a court of law exercising proper jurisdiction, that provision shall be deemed severed from the remaining provisions and shall not affect their validity and enforceability. The Terms of Service incorporate by reference any notices contained on the Platform and constitute the entire agreement with respect to access to and use of the Platform.

20. FEEDBACK

While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the User community. If you choose to contribute by sending us or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively, “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending us Feedback, you agree that: (i) Company has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason; (ii) Feedback is provided on a non-confidential basis, and Company is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and (iii) you irrevocably grant Company a perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.

21. PRIVACY

Your privacy is very important to us. To understand our practices, please review our Privacy Policy at http://files.topfan.com/privacypolicy.pdf, which is incorporated by reference into the Terms of Service and also governs your use of the Platform. Likewise, you represent and warrant that you will respect the privacy, property, and data protection rights of Users.

22. CONTACT

General questions or comments about the Platform or the Terms of Service should be sent by email to [email protected].