Conditions of Use
Last Updated January 17, 2019
These Conditions of Use (“Conditions”) are the terms by which you may use our online and/or mobile services, website(s), and applications (the “Services”). These Conditions apply to all visitors, users, or others who access the Services (“you,” or “Users”). Please read these Conditions carefully before you use the TopMags.com site.
By using TopMags.com Services, you agree to these Conditions. Please read them carefully.
These Conditions are a binding legal agreement between you and TopMags.com (“TopMags.com,” “us” “we” or “our”). You must agree to and accept all of the Conditions, or you can’t use the Services. You agree to be bound by these Conditions and our Privacy Notice by using our Services, clicking a button that indicates consent, or consenting in another legally enforceable manner.
When you agree to these Conditions of Use, you agree and understand that the terms herein will apply to you, and any other entity on whose behalf you are acting. If you accept these Conditions of Use or our product or services for the benefit of your employer, you agree that your employer will be bound by these Conditions of Use and that you have authority to bind your employer in this way.
You may use the Services only for lawful purposes and in compliance with these Conditions and the other policies and procedures of TopMags.com posted on the Services.
When using the Services, you may not:
- Resell, re-license, transfer or otherwise further distribute products, magazines, or subscriptions purchased on TopMags.com without prior written permission.
- Disguise the origin of any message or communication you make to TopMags.com in transacting through the Services, or pretend that you are or represent someone else, or impersonate any other individual or entity;
- Engage in activity that is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
- Infringe or violate the intellectual property rights or any other rights of anyone else (including TopMags.com);
- Unless authorized by TopMags.com, collect any personally identifiable information from Users of the Services or use any such information found on the Services;
- Attempt, in any manner, to obtain the password, account, or other security information from any other User;
- Take any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure;
- Copy, distribute, or disclose any part of the Services in any medium, including without limitation by any automated or non-automated "scraping";
- Access any content on the Services through any technology or means other than those provided or authorized by the Service;
- Purchase a product, magazine, or subscription on TopMags.com in order to directly or indirectly reveal or reverse engineer our vendors, suppliers, or distributors for the purposes of interfering with our services or to provide similar services to any third party or for competing with our service;
- Bypass the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein;
- Decompile, reverse engineer, or otherwise attempt to obtain the source code or underlying ideas or information of or relating to the Services; or
- Attempt to do anything, or permit, encourage, assist, or allow any third party to do anything, prohibited in this list of items, or attempt, permit, encourage, assist, or allow any other violation of these Conditions.
Anyone using (or soliciting anyone else to use) the Services in a way that TopMags.com has reason to believe violates any applicable federal, state, local or international law or regulation or otherwise violates these Conditions or any other policy or procedure of TopMags.com posted on the Services may immediately and without notice have their access to the Services terminated and any transactions conducted through the Services cancelled.
In order to use the Services, you must be at least 18 years old. TopMags.com sells products for children and individuals under the age of 18, but only sells them to individuals 18 or over, who must make purchases with credit cards or other permitted payment methods. If you are under the age of 18, you may use the TopMags.com website and services only with the involvement and approval of a parent or guardian. You must be 18 years of age or older to purchase adult products or use any site functionality related to such products.
When creating your account, you must provide accurate and complete information. You are responsible for maintaining the confidentiality of your account login and password and for restricting access to your computer, tablet, or phone, and you agree to accept responsibility for all activities that occur under your account. TopMags.com reserves the right to refuse service, terminate accounts, delete or modify content, or cancel orders in its sole discretion.
You acknowledge, consent and agree that we may access, preserve and disclose your account or user information (if such information exists) as described in our Privacy Notice or if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Conditions; (c) respond to claims that any of your acts violate the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of TopMags.com, its users, and the public.
You are prohibited from violating or attempting to violate the security of the Services, including, without limitation, (a) accessing data not intended for you or accessing a server or an account which you are not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (c) attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the Services, overloading, "flooding," "spamming," "mailbombing" or "crashing;" (d) sending unsolicited email, including promotions and/or advertising of products or services; or (e) forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting. Violations of system or network security may result in civil or criminal liability. TopMags.com will investigate occurrences that may involve such violations and may involve and cooperate with law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Services or any activity being conducted on the Services. You agree, further, not to use or attempt to use any engine, software, tool, agent or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Services other than the search engine and search agents available from TopMags.com on the Services and other than generally available third party web browsers (e.g., Microsoft Explorer, Firefox or Safari).
TopMags.com owns all rights, title, and interest in the Services and all of their content, including images, copy, designs, icons, photographs, programs, video clips and written and other materials that are part of the Services (collectively, the "Contents"). The Services are protected by copyright, trademark, and other applicable laws. Subject to the conditions of use of these Conditions, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Services for your personal, noncommercial use only and as permitted by the features of the Services. You may download or copy the Contents and other downloadable materials displayed on the Services for your personal use only. No right, title or interest in any downloaded materials or software is transferred to you as a result of any such downloading or copying. You may not reproduce (except as noted above), publish, transmit, distribute, display, modify, create derivative works from, sell or participate in any sale of or exploit in any way, in whole or in part, any of the Contents or the Services. The Contents and software on the Services may be used only as a shopping resource. Any other use, including the reproduction, modification, distribution, transmission, republication, display, or performance, of the Contents on the Services is strictly prohibited. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services. TopMags.com reserves all rights not granted in these Conditions.
TopMags.com attempts to be as accurate as possible. However, it does not warrant that product descriptions or other content are accurate, complete, reliable, current, or error-free. If a product offered is not as described, your sole remedy is a refund or product substitution.
Visitors may post reviews, comments, photos, videos, and other content; send e-cards and other communications; and submit suggestions, ideas, comments, questions, or other information, so long as the content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights (including publicity rights), injurious to TopMags.com or third parties or otherwise objectionable, does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam" or unsolicited commercial electronic messages, or otherwise violate these Conditions or any applicable law. You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a card or other content.
If you do post content or submit material, and unless we indicate otherwise, you grant TopMags.com a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, perform, translate, create derivative works from, distribute, and display such content throughout the world in any media. You grant TopMags.com and sublicensees the right to use the name that you submit in connection with such content, if they choose. You represent and warrant: that you own or otherwise control all of the rights to the content that you post, or have all consents as may be required by law to post the content; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify TopMags.com for all claims resulting from content you supply.
TopMags.com has the right but not the obligation to monitor and edit or remove any activity or content. TopMags.com takes no responsibility and assumes no liability for any content posted by you or any third party. You shall be solely responsible for your content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of your content.
If you choose to provide us any comments, suggestions or recommendations regarding the Services (in written or oral form) (“Feedback”), you further represent and warrant that (a) you have the right to disclose the Feedback, (b) the Feedback does not violate the rights of any other person or entity, and (c) your Feedback does not contain the confidential or proprietary information of any third party or parties. By sending us any Feedback, you further (i) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (ii) acknowledge that we may have something similar to the Feedback already under consideration or in development, (iii) grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works from, publish, distribute and sublicense the Feedback, and (iv) irrevocably waive, and cause to be waived, against TopMags.com and its users any claims and assertions of any moral rights contained in such Feedback. This Feedback section shall survive any termination of your account or the Services.
If you are a copyright owner or an agent thereof and believe that any content, information, or communication on the Services infringes upon your copyrights, you may submit a written notice of infringement pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512 (the "DMCA"). All notices of infringement should be sent to the Designated Agent of TopMags.com identified below and should include the following information: (a) an electronic or physical signature of the copyright owner or of the person authorized to act on behalf of the owner of the copyright interest, (b) a description of the copyrighted work that you claim has been infringed, (c) a description of where the material that you claim is infringing is located on the Website, (d) your address, telephone number, and e-mail address, (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law, and (f) 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.
Notices of infringement should be directed to the following Designated Agent of TopMags.com:
ATTENTION COPYRIGHT AGENT
If you submit a notice of infringement that knowingly materially misrepresents that any content, information, or communication on the Services is infringing upon a copyright, you may be held liable for damages and attorneys’ fees. If you believe that your content, information, or communication has been removed from the Services due to an erroneous claim of infringement, you may have remedies available to you under the DMCA.
Please review our Privacy Notice to understand our practices. By using our Services, you consent to our collection, use and disclosure of your personal information in accordance with our Privacy Notice which can be found here and which forms part of these Conditions.
ORDERING PROCESS AND PAYMENT
- Order Acceptance
Each part of any order that you submit to us constitutes an offer to purchase. Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order. TopMags.com is only deemed to have accepted your order once the magazine(s) you ordered have been mailed.
- Order Cancellation and Limitations
We reserve the right to accept, decline or cancel your order or limit the order quantity for any reason.
All billing information provided must be truthful and accurate. Providing any untruthful or inaccurate information constitutes a breach of these Conditions and may result in order cancellation. We also may require additional verification or information before or after accepting any order. For orders placed with a credit card payment, payment is subject to the approval of the financial institution issuing the credit card and we shall not be liable if such financial institution refuses to accept or honor the credit card for any reason. We may require, at our option, that any order placed over certain dollar amounts receive our pre-approval.
By confirming your purchase at the end of the checkout process, (1) you agree to accept and pay for the subscription, including all applicable fees, charges, and taxes and (2) you authorize DiscoutMags.com to share any payment information and instructions required to complete the payment transactions with its third-party payment service providers (e.g., credit card transaction processing, merchant settlement, and related services).
Refunds are available only as described in our Refund Policy. While we will strive to provide returns and refunds, excessive or abusive refund requests will void our Refund Policy.
- Product Availability
There are times when a magazine subscription may be sold before we are able to remove it from the Services, is discontinued, or otherwise becomes unavailable. In these circumstances, we reserve the right to cancel your order and provide you a refund for the amount paid for the subscription.
- Discounts and Promotions
We may, in our sole discretion, create discounts and promotional codes that may be redeemed for credit in your account, or other features or benefits, subject to any additional terms that we establish on a per promotional code basis ("Promo Codes"). Promo Codes may only be used once per person. Only Promo Codes sent to you through official TopMags.com communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) are limited in nature and may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not redeemable for cash; and (vi) may expire prior to your use. From time to time, we may offer special promotions associated with some subscriptions or the Services. All promotional offers may be discontinued at any time, without prior notice, at our discretion and are only available while supplies last or for the duration noted. Promo Codes are void where prohibited by law.
- Undelivered E-mails
We are not responsible for any undelivered e-mails due to spam filters or any other reason.
RENEW & SAVE
Your order includes enrollment in the Renew & Save service, unless you opt out.
IF YOU DO NOT WANT TO SUBSCRIBE TO RENEW & SAVE, YOU MUST CHECK THE “Do not subscribe me to Renew & Save” BOX(ES) BEFORE PLACING YOUR ORDER.
- Renew & Save Description
Renew & Save is an automatic renewal program that will automatically renew your magazine subscription(s) prior to the end of your subscription term, and will continue to do so until terminated.
TopMags.com reserves the right to modify the Renew & Save program, including Renew & Save pricing, at any time in its sole discretion. We may, in our sole discretion, terminate Renew & Save at any time without notice. If we do so, you will only be charged for renewals that have been processed with the publisher.
Renew & Save and any associated discounts and limited time special enrollment promotions are limited to magazines displaying the Renew & Save offer message at the time of purchase. Subscriptions are good while supplies last. Limited time enrollment promotions only apply during their effective dates.
Your participation in the Renew & Save program is personal to you, and you may not assign or transfer your Renew & Save enrollment or any of the benefits to any third party without the authorization of TopMags.com.
Renew & Save enrollments are void where prohibited.
- Recurring Billing
By subscribing to Renew & Save, you authorize us to charge your credit card on a recurring basis for the applicable magazine subscription charge and any and all taxes or possible transaction fees, and any other charges incurred in connection with your subscription. Your credit card will automatically be charged the applicable magazine subscription charge on the applicable renewal processing date, unless you cancel Renew & Save before that date. For more information on the date(s) your subscription renewal will be processed, please visit our FAQ page.
- Payment Method
Credit cards are the only payment method accepted for Renew & Save purchases. To subscribe to Renew & Save, you must provide us with a current, valid credit card.
The charge for each magazine subscription renewal will be billed to the credit card you specified in your order. You may update your credit card on your Account page or by contacting us at email@example.com. Following any update, you authorize us to continue to charge your updated credit card. If we are unable to complete your renewal order with the credit card you provided, you authorize us to charge any credit card associated to your account and to charge that credit card for your Renew & Save order. Some credit card issuers may charge you certain fees, such as foreign transaction fees or other fees relating to the processing of your credit card. Check with your credit card provider for details.
You may cancel Renew & Save for your subscription at any time before the date your subscription renewal is processed, and you will continue to receive issues through the end of the current subscription period. You may also cancel Renew & Save up to 6 months after your subscription renewal date, but you will only receive a refund for undelivered issues. To cancel, login to your account to request a cancellation or contact us.
If you cancel Renew & Save and then reactivate it, the discount applied to any Renew & Save item may not be the same discount in effect at the time of cancellation.
- Price or Term Changes
Renew & Save pricing and terms is subject to availability, and the price or term for your subscription may change from time to time. If the price and term for your subscription changes, we will communicate any price or term changes to you in advance and, if applicable, how to accept those changes. Price or term changes will apply to the next subscription term following the date of the price or term change. If you do not agree with the price or term change, you have the right to reject the change by cancelling Renew & Save prior to the price or term change going into effect. Please therefore make sure you read any such notification of price or term changes carefully.
The Services may contain links to third-party services such as third party websites, applications, or ads ("Third-Party Links"). When you click on such a link, we will not warn you that you have left the Services. Please note that your use of such Third Party Links will be governed by the terms and Privacy Notice applicable to the corresponding third party – we encourage you to review the third party’s applicable policies and contact the third party, if you have questions. TopMags.com does not control and is not responsible for Third-Party Links. TopMags.com provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third-Party Links is at your own risk. TopMags.com shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
In the event a product is listed at an incorrect price or with incorrect information, TopMags.com shall have the right to refuse or cancel any orders placed for such products. TopMags.com shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card has been charged. If your credit card has already been charged for the purchase and your order is cancelled, we shall issue a credit to your credit card account in the amount of the charge.
You can terminate your use of the Services at any time by ceasing further use of the Services, but any unpaid amounts you owe to TopMags.com for magazine purchases will remain due. At its sole discretion, TopMags.com may modify or discontinue the Services or features of the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, TopMags.com reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, these Conditions will remain enforceable against you and unpaid amounts you owe to TopMags.com for Services purchased will remain due.
To the full extent permitted by law, you agree to indemnify, defend, and hold TopMags.com and its respective officers, directors, employees, members, shareholders, or representatives (and all successors and assigns of any of the foregoing), harmless from and against any claim or demand, including without limitation, reasonable lawyers' fees and disbursements, made by any third party in connection with or arising out of your use of the Services, your connection to the Services, your violation of the Conditions or TopMags.com’s Privacy Notice, your violation of an applicable law, your submission, posting, or transmission of user content to the Services, and/or your violation of any rights of another. We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses.
THE SERVICES ARE PROVIDED BY TOPMAGS.COM ON AN "AS IS" AND “AS AVAILABLE” BASIS. TOPMAGS.COM MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICES OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THE SERVICES OR CONTENT DISTRIBUTED THROUGH EMAIL OR OTHER SOCIAL MEDIA ACTIVITIES. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, TOPMAGS.COM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, TOPMAGS.COM DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, FOR ANY MERCHANDISE OFFERED ON THE SERVICES. YOU ACKNOWLEDGE, BY YOUR USE OF THE SERVICES, THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK.
TOPMAGS.COM DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED OR EMBEDDED WEBSITE OR SERVICE (INCLUDING WITHOUT LIMITATION THOSE OFFERED BY OTHER USERS, SUCH AS ORGANIZATIONS), AND TOPMAGS.COM WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
LIMITATION OF LIABILITY
in no event will either party be liable to the other for any special, indirect, incidental or consequential damages, whether or not foreseeable and however arising, including without limitation to lost income or revenue, whether based in contract, tort or any other theory. REGARDLESS OF FORESEEABILITY AND EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. further, neither party’s liability under this Agreement or related to the products sold on THE SERVICES (or other content ON THE SERVICES), regardless of the form of action, shall in the aggregate exceed the greater of (a) the total amount paid or payable under the prior six months during which this agreement was in place, or (b) $500.00.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
IF YOU ARE A RESIDENT OF NEW JERSEY, THIS SECTION DOES NOT APPLY TO PREVENT A RIGHT TO RECOVER CERTAIN DAMAGES (INCLUDING PUNITIVE DAMAGES) WHERE A HARMED PERSON PROVES WITH THE REQUIRED EVIDENCE THAT THE HARM SUFFERED WAS THE RESULT OF THE DEFENDANT’S “ACTS OR OMISSIONS AND SUCH ACTS OR OMISSIONS WERE ACTUATED BY ACTUAL MALICE OR ACCOMPANIED BY A WANTON AND WILLFUL DISREGARD OF PERSONS WHO FORESEEABLY MIGHT BE HARMED BY THOSE ACTS OR OMISSIONS.” SIMILARLY, THIS SECTION DOES NOT LIMIT TOPMAGS.COM’S TORT LIABILITY UNDER NEW JERSEY LAW RESULTING FROM TOPMAGS.COM’s OWN INTENTIONAL OR RECKLESS CONDUCT.
BINDING ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THE FOLLWING ARBITRATION AGREEMENT IN THIS SECTION (“ARBITRATION AGREEMENT”) CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT
- Initial Dispute Resolution
Our Customer Support Department is available at firstname.lastname@example.org to address concerns you may have regarding our services. The parties shall use their best efforts through this Customer Service process to settle any dispute, claim, question, or disagreement and good faith negotiations which shall be a condition to either party initiating a lawsuit or arbitration.
- Binding Arbitration
If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision, either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to these Conditions (including their formation, performance and breach), your purchase of magazine subscriptions or enrollment in Renew & Save, the parties’ relationship with each other and/or your use of the Services shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the American Arbitration Association (the “AAA”), excluding any rules or procedures governing or permitting class actions. If AAA is not available to arbitrate, the parties will select an alternative arbitral forum. If there is a conflict between the AAA Rules (or the rules of the alternative arbitral forum selected by the parties) and the rules set forth in these Conditions, the rules set forth in these Conditions will govern. The arbitration will be conducted by a single arbitrator. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL.
The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Conditions, including, but not limited to any claim that all or any part of these Conditions are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, final, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The arbitrator shall follow the applicable law.
The Commercial Arbitration Rules governing the arbitration may be accessed at www.adr.org or by calling the AAA at +1.800.778.7879. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, TopMags.com will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, TopMags.com will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. You are responsible for all other additional costs that you may incur in the arbitration including, without limitation, attorney’s fees and expert witness costs unless TopMags.com is specifically required to pay such fees under the arbitration rules or applicable law.
YOU AND TOPMAGS.COM HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT (OTHER THAN SMALL CLAIMS COURT AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and TopMags.com are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified below. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Conditions as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review. In some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
- Location of Arbitration
If you reside outside of the United States, arbitration may take place in the county where you reside at the time of filing. If you are a resident of the United States, arbitration will take place in the County of New Castle, State of Delaware, United States of America, provided that you may appear videographically (or telephonically) in lieu of appearing in person; if you appear videographically (or telephonically), we will as well. You and TopMags.com agree to submit to the personal jurisdiction of any federal or superior court in the County of New Castle, Delaware in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
- Exception - Litigation of Intellectual Property and Small Claims Court Claims
Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
- 30-Day Right to Opt Out
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the following email address:
The notice must be sent within 30 days of your first becoming subject to this Arbitration section; if you do not send us such a notice, you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, TopMags.com also will not be bound by them, and all other party of these Conditions will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.
- Parents, Subsidiaries, Affiliates
This Arbitration Section will also apply to any claims asserted by you against any present or future parent, subsidiary, or affiliated company of TopMags.com, or any employee, officer, director, or investor of TopMags.com, and to any claims asserted by any of them against you, to the extent that any such claims arise out of or relate to these Conditions (such as with respect to their validity or enforceability), the Services, any person’s access to and/or use of the Services, and/or the provision of content, products, services, and/or technology on or through the Services.
- Changes to this Section
TopMags.com will provide 60-days’ notice of any changes to this section. Changes will become effective on the 60th day, and will apply prospectively only to any claims arising after the 60th day.
If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
- Survival of Agreement
This Arbitration Agreement will survive the termination or expiration of the Conditions or your relationship with TopMags.com.
CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
The parties further agree that any dispute shall be resolved in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. TopMags.com and you further agree to not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising out of or relating to any dispute with a third party.
The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other TopMags.com customers, and cannot be used to decide other disputes with other customers.
If any court or arbitrator determines that the class action waiver set forth in this section is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
If any clause within this class action waiver section is found to be illegal or unenforceable, that specific clause will be severed from this section, and the remainder of its provisions will be given full force and effect.
This class action waiver section will also apply to any claims asserted by you against any present or future parent, subsidiary or affiliated company of TopMags.com, or any employee, officer, director, or investor of TopMags.com, and to any claims asserted by any of them against you, to the extent that any such claims is a dispute.
This Class Action Waiver section shall survive any termination of your account or the Services.
Our Right to Modify these Conditions.
We reserve the right to update or modify these Conditions of Use or our policies relating to the Services at any time, effective upon posting of an updated version of these Conditions or any applicable supplemental Conditions on our Services. If we make a material change to these Conditions, we will notify you as required by law. Your use of the Services following any such change constitutes your agreement to follow and be bound by the updated Conditions. You are expected to check this page and review these Conditions whenever you use the Services so you are aware of any changes. If you do not agree with the terms, you must not use the Services.
THIRD PARTY BENEFICIARIES
You and TopMags.com agree there are no third party beneficiaries intended under these Conditions.
Electronic Communications. You agree to receive communications from TopMags.com electronically, such as emails, texts, mobile push notices, or notices and message on the Services, and to retain copies of these communications for your records. You agree that all conditions of use, agreements, notices, disclosures, and other communications and documents that TopMags.com provides to you electronically will have the same legal effect that such communications or documents would have if they were set forth in "writing."
Assignment. These Conditions, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without TopMags.com’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Force Majeure. TopMags.com shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Exclusive Venue. Any claim or dispute between you and the Company that arises out of or is related to the Services and is not subject to arbitration shall be decided exclusively by a court of competent jurisdiction located in New Castle County, Delaware and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of New Castle County, Delaware. You further agree to accept service of process by mail.
Governing Law. These Conditions and any dispute of any sort that might arise between you and the Company will be governed and interpreted by and under the laws of the State of Delaware, consistent with the Federal Arbitration Act, without giving effect to any conflict of law or other principles that provide for the application of the law of another jurisdiction.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim arising out of or related to the Services must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. Notwithstanding the foregoing, this statute of limitations shall not apply to residents of New Jersey.
Waiver. Any waiver or failure to enforce any provision of these Conditions on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Any waiver must be in writing and signed by both you and TopMags.com to be legally binding.
Severability. Subject to Sections 18 and 19, if any portion of these Conditions is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
No Right of Survivorship & Non-Transferability. Your account is non-transferable and any rights to your account and/or contents within your account shall terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.
Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you used the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the Services or purchasing products from us, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law.
Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Entire Agreement. These Conditions are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. You also may be subject to additional conditions of use that may apply when you use or purchase certain other TopMags.com products and/or services, affiliate services, third party content, or products, or third party software.
Course of Conduct/Trade Practice. Neither the course of conduct between the parties nor trade practice will act to modify these Conditions.
Section Titles. The section headings used herein are for convenience only and shall not be given any legal import.
Interpretation. You agree that these Conditions will not be construed against TopMags.com by virtue of having drafted them.
COMMUNICATING WITH US
If you have any questions, complaints or claims with respect to the Services, please contact us at email@example.com