Welcome to TopHap.com. This Site is owned, operated and maintained by TopHap, Inc., a technology-powered digital real estate platform.
BY ACCESSING, BROWSING AND/OR USING THE SITE AND/OR ANY SOFTWARE, CONTENT, SERVICES OR MATERIALS OFFERED ON OR VIA THE SITE, YOU BECOME A USER OF THE SITE AND EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, ACCEPT AND AGREE TO EACH AND ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT AGREE TO ACCEPT EACH AND ALL OF THE FOLLOWING TERMS AND CONDITIONS AS SET FORTH BELOW, PLEASE DO NOT ACCESS, BROWSE OR USE THE SITE OR ANY OF ITS SOFTWARE, SERVICES, INFORMATION, MATERIALS OR OTHERWISE.
This Agreement is effective as the date last set forth below (the “Effective Date”). Any use of the Site by a User automatically constitutes affirmative acceptance of the Agreement (and in the case of any updated version of this Agreement, the continued use by a User constitutes the User’s acceptance thereof). You agree to periodically review this Agreement to ensure that you are in compliance with any ongoing changes or modifications that are made to the Agreement.
PLEASE READ THE TERMS AND CONDITIONS OF THIS ENTIRE AGREEMENT CAREFULLY. PLEASE ALSO NOTE THAT THIS AGREEMENT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND A CLASS ACTION WAIVER (SEE “DISPUTE RESOLUTION” BELOW). BY ENTERING INTO THIS AGREEMENT, YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU UNDERSTAND THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, THE DISPUTE RESOLUTION AND ARBITRATION PROVISIONS THEREIN) AND AGREE TO ALL OF ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO BE LEGALLY BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE SITE OR THE COMPANY’S SERVICES.
This Agreement constitutes a legally binding agreement between you and us.
Users of the Site (including, but not limited to, any individual, entity or other person who accesses, browses or uses the Site) are referred to as “you”, “your” or “User” herein.
TopHap, Inc., a Delaware corporation, is referred to as “TopHap” or the “Company” or “we” or “us” or “our” herein.
The Site and the Services
The “Site” (also referred to herein as the “Services” which are provided through the Company’s website and via TopHap Applications) consists of the website located at http://www.tophap.com (including, but not limited to, any and all sub-domains) and any and all services and software provided through or by such website(s) (whether over the Internet, by mobile platform and/or otherwise) or in connection with TopHap and any related software and services (including, but not limited to, the Services any and all representations of the Site, whether in online, offline, mobile and/or other platforms such as, without limitation, TopHap Applications).
The Site can be accessed, browsed and/or used through a variety of online, mobile or other platforms as TopHap decides (in its sole and absolute discretion) to make available from time to time to Users. The Company does not guarantee or promise any User that the Site will remain accessible or operational in the future for any particular duration of time.
TopHap offers the Services in multiple formats, including, but not limited to, through applications built using the TopHap platform (“TopHap Applications”). Examples of TopHap Applications include, without limitation, its mobile applications (including, but not limited to, TopHap for Android, TopHap for iPad, or TopHap for iPhone), and TopHap “Share” buttons, which allow you to share your activities on the Sites with your friends using social media or email. You acknowledge you are responsible for all charges and necessary permissions related to accessing TopHap and its Services through your mobile access provider.
The Site is intended to provide pertinent information about real estate and properties in the United States only. To the extent that the Site is not legal in your jurisdiction (whether in the United States or outside), you may not use the Site.
You agree to provide computer, hardware, devices, telephones, equipment, software, a working Internet connection, data, files and any and all other materials and items required for your access and use the Site. The Company does not represent or warrant that the Site will work with your operating system, hardware, mobile telephone or personal digital assistant, device or computer. You are solely responsible for ensuring that you have all suitable equipment and systems to properly use the Site. You agree to use the Site only for purposes for which it was expressly and directly intended and for no other purpose(s) whatsoever.
Before we can show you pictures and prices of sold homes, our multiple listing service (MLS) data providers require you to acknowledge certain provisions.
Please visit http://www.mls.com/Home/TermsOfUse.mvc for more information.
You also hereby agree to the following provisions:
· That you will use the Site only for your personal use or for commercial uses intended only for your personal benefit;
· You have a bona fide interest in the purchase, sale, or lease of real estate on the Site, and
· That you will not copy, redistribute or retransmit any of the information provided except in connection with your consideration of the purchase or sale of an individual property;
· You acknowledge that the individual MLS providers, which supply the listing data, own such data and you acknowledge the validity of the MLS' copyright to such data; and
You acknowledge and agree that we may disclose information that you provide if we are required to do so by applicable law, or at the request of a third party, or if we, in our sole and absolute discretion, believe that disclosure is reasonably necessary in order to (1) comply with applicable law, requests or orders from law enforcement, or any legal process (whether or not such disclosure is required by applicable law); or (2) protect or defend the rights or property of the Company or any third party. In addition, you expressly understand and authorize us to share your personal information as and when necessary to comply with any and all obligations and duties that are imposed upon us by third parties (including, but not limited to, our third-party data providers and data sources).
You are not required to register for a TopHap account to see complete home listings. However, even unregistered Users are bound by the terms and conditions of this Agreement.
Users may choose to register for a TopHap account in order to avail themselves of enhanced services and features provided by the Company. By registering for a TopHap account you are, among other things, also entering into this Agreement. You are responsible for all activities related to the Services that occur through your account. It is your responsibility to keep your Account Profile information accurate. You agree to keep your password confidential, not use others’ accounts, nor permit others to use your account. TopHap reserves the right to terminate any accounts in its sole and absolute discretion.
Users who register for an account will automatically receive a free trial period (at no charge) for a defined period of time (“Trial Period”). Both the exact length of the Trial Period (e.g. two weeks, one month, etc.) as well as the consequences of Trial Expiration will be indicated to the User at the time of registration. Only one Trial Period will be offered to any particular User. No User is eligible for more than one Trial Period, and the same User may not obtain additional Trial Periods by re-registering for duplicate accounts.
The Company reserves the right to change, modify, alter or discontinue the length of the Trial Period in its sole and absolute discretion. The Company may, in its sole and absolute discretion, offer differing Trial Periods from time to time.
Expiration of Trial Period
When the applicable Trial Period expires (“Trial Expiration”), the registered account will then either: (a) if the User did not provide the User’s payment information at the time of registration or prior to the time of Trial Expiration, then the account shall automatically expire and the User’s access to such account will be permanently discontinued unless the User elects to instead become a paying subscriber by providing TopHap with the necessary payment information at or prior to the time of Trial Expiration; or (b) if the User previously provided TopHap with payment information at the time of registration or prior to the time of Trial Expiration, then the account shall automatically convert into a paid subscription account and the User will be charged the recurring subscription fee as of the time of the Trial Expiration.
Account Billing and Payments
The following information in this section entitled “Account Billing and Payments” applies to Users who register for an account and then become paying subscribers for TopHap services.
The Company charges every registered User a monthly subscription fee of $ 49.95 (Forty-Nine Dollars and Ninety-Five Cents) for access to the TopHap account and associated features and services. The fee is charged in advance in respect of each monthly period (i.e. a fee charged today to a User applies to, and covers, the following monthly period).
Once the subscription fee is first charged to a particular User, the fee is then automatically charged to that particular User every month (or every year, in the case of an annual subscription) on each successive monthly anniversary date (or yearly anniversary date in the case of an annual subscription) of the first payment. If any payment date falls on a holiday or weekend, the Company may (in its sole and absolute discretion) charge the subscription fee on the business day that is immediately preceding (or following) the holiday or weekend dates. The subscription fee shall be recurring, with no end date, until such time as the User’s account is terminated or cancelled.
The Company may choose, in its sole and absolute discretion, to offer Users the option to pay their subscription fees in advance for an entire annual period (i.e. in lieu of twelve (12) monthly payments, the User would make one single, lump-sum payment in advance to cover the entirety of the next annual period of twelve (12) months). In the event that such an annual payment option is offered to Users, the Company may set the cost for such an annual subscription in its sole and absolute discretion (and such annual subscription cost may or may not present an aggregate discount to the monthly subscription fee).
The annual subscription fee is charged in advance in respect of each annual period (i.e. a fee charged today to a User applies to, and covers, the following annual period).
As discussed above, we automatically bill you each month (or each year, in the case of annual subscriptions) on the calendar day corresponding to the date on which you first commenced payment for the subscription. Although TopHap endeavors to bill you as described herein above, we reserve the right to change the timing of billing as necessary, from time to time, and at any time in our sole and absolute discretion.
Account fees are fully earned upon payment. You must pay undisputed portions of any billing statement when due. In the event of your non-payment by the applicable due date, TopHap may elect (in its sole and absolute discretion) to immediately limit or suspend (temporarily) or terminate (permanently) your access and use (in whole or in part) of your account. Such suspension or termination of your account shall be without limitation to any and all other rights or remedies available to TopHap at law, in equity, under contract (including this Agreement), or otherwise, all of which are hereby expressly and fully reserved.
Changes to Subscription Fee
TopHap may, from time to time and at any time in its sole and absolute discretion, change or modify the amount of, or the basis for, determining any fees or charges to Users. Any such changes to the amount of the subscription fee will be electronically communicated to Users. The modified fee amount will thereafter take effect on the next monthly payment date (or annual payment date, in the case of yearly subscriptions).
Charges are billed to the credit or debit card provided by a User through their TopHap account. You agree to pay all such amounts billed. You are also separately responsible for the payment of any and all taxes, fees, and other charges, if any, that are now or may in the future be assessed in connection with your access or use of your TopHap account.
Please be advised that State and local taxes, or reimbursement charges for gross earnings taxes, may apply in certain jurisdictions.
All payments are to be made directly by Users to TopHap, unless TopHap expressly authorizes otherwise. TopHap shall have no obligation whatsoever to provide any accounts, services, features or functionality for any accounts for which payment is made by a User to a third party or for which payment is made by a third party on a User’s behalf.
The Company does not provide paper bills. The Company may choose, in its sole and absolute discretion, to provide electronic statements to Users. However, the failure to receive a bill or statement, whether a paper bill or an electronic statement, does not release or relieve you from your payment obligations under this Agreement.
In the event of any late payments by a User, TopHap may unilaterally terminate, limit or suspend that User’s account (with or without notice) for any such failure to timely pay any amounts by the required due date.
Registration of Credit or Debit Card
Users are required to register a valid credit or debit card to process payments of the associated fees. When you register your credit or debit card for your account, you expressly authorize TopHap to place a pending charge to the credit or debit card to verify your billing address and the validity of your credit or debit card. These pending charges are temporary and will not be converted into an actual charge to you. However, please note that pending charges, while pending, will typically reduce the amount of credit available to you for use on your credit or debit card. Once your credit or debit card information is authenticated, the credit or debit card that Customer registered with your TopHap account will then be automatically charged for each transaction without having to reenter or verify that same credit or debit card information again.
You are solely responsible and liable for any and all fees charged to you by your credit or debit card and the card’s issuer, bank, or financial institution, including (without limitation) fees for membership, any overdraft or insufficient funds, or for exceeding any applicable credit limit).
You expressly represent, warrant, agree and authorize that the issuer of any credit or debit card that you register in your TopHap account will: (a) accept the billing and payment terms and conditions of this Agreement, (b) pay any and all amounts due on your behalf and that are billed in connection with your TopHap account and (c) make any and all payments due on your behalf without the Company needing to submit a signed receipt or proof of your signature.
You agree to provide TopHap with updated credit or debit card information upon request and also any time the information you previously provided is no longer valid. You are solely responsible for maintaining and updating your credit or debit card information.
Without limiting the applicability of any other provisions of this Agreement, you expressly acknowledge and agree that TopHap will not have any liability whatsoever for any non-sufficient funds or other charges incurred by you as a result of our attempts to charge, and/or place holds on, your credit or debit card.
If you believe that you have been billed in error, you must contact us immediately, and in no event more than thirty (30) days following the date you are erroneously billed. Failure by you to timely notify TopHap of any billing dispute will constitute your acceptance of the corresponding billed amounts, and you agree to waive any future claims that such billed amount(s) are, or were ever, in error.
Returns, Credits and Refunds
YOU UNDERSTAND, ACKNOWLEDGES AND EXPRESSLY AGREE THAT PAYMENTS (AND TOPHAP SUBSCRIPTIONS) ARE NONREFUNDABLE. TOPHAP IS NOT OBLIGATED TO PROVIDE, YOU ARE NOT ENTITLED TO, AND YOU HEREBY WAIVE ANY RIGHT TO, ANY CREDIT, REFUND, RETURN, PRICE ADJUSTMENT OR ANY OTHER DISCOUNT, COMPENSATION OR OTHER FORM OF RECOMPENSE (AND REGARDLESS OF THE BASIS OR THEORY OF YOUR CLAIM FOR CREDIT, REFUND, RETURN, PRICE ADJUSTMENT, OTHER DISCOUNT, COMPENSATION OR FORM OF RECOMPENSE). WITHOUT LIMITATION TO THE FOREGOING, TOPHAP FURTHER EXPRESSLY DISCLAIMS ANY AND ALL FORMS OF LIABILITY FOR ANY CREDIT, REFUND, RETURN, PRICE ADJUSTMENT, OTHER DISCOUNT, COMPENSATION OR FORM OF RECOMPENSE FOR ANY CLAIMS THAT A USER ONLY PARTIALLY USED THE ACCOUNT SERVICES OR DID NOT FULLY DOWNLOAD OR VIEW SERVICES, FEATURES OR FUNTIONALITY OF THE TOPHAP ACCOUNT.
Although not required or obligated (as explained above), TopHap reserves the right to evaluate or elect to provide credits, refunds, price adjustments or other discounts, compensation or form(s) of recompense, from time to time, and at any time, in its sole and absolute discretion; provided, that any such elections to offer any such credits, refund, price adjustments or other discounts, compensation or form(s) of recompense in any one instance or situation does not entitle any User to the same or any such benefit in the future for similar or unrelated instances or situations, nor does it create any obligation whatsoever for TopHap to offer such benefit to any User in connection with or relating to any past, present, or future requests for the same under any circumstance(s) whatsoever.
You hereby authorize TopHap to use outside payment processing agencies or other companies for purposes of paying any refund owed to you. You also agree that TopHap may determine, in its sole and absolute discretion, the form and manner of any refund that TopHap may choose to issue to you, and that such form or manner of refund may include (without limitation) account or billing credits for past or future TopHap services, a cash payment by check, a credit to a User’s debit or credit card account, or a prepaid debit card.
Any amounts refunded by TopHap shall, at TopHap’s sole election, normally be issued in the form of TopHap credits for past billing or a TopHap credit against future bills for account services (i.e. such credits will not normally take the form of cash refunds or credits directly applied to the User’s credit or debit card). TopHap reserves the right (in its sole and absolute discretion) to issue cash payments (or credits applied to credit or debit cards), but makes no guarantees or promises that that the Company will issue cash payments (or credits applied to credit or debit cards) in any particular instance.
Refunds, whether consisting of billing credits or cash payments or any other form of refund, shall be inclusive of all applicable taxes, fees and surcharges that were originally paid on such amounts. Credit amounts that do not represent a refund of, or a discount to, the price paid for any service will not result in the refund of any tax, fee, or surcharge previously paid.
Subscription Termination by the User
A subscription may be terminated at any time by the User by electing such termination through the user administration console within the User’s TopHap account. The termination, once elected, will be automatically effective at the end of the then-current subscription term (i.e. at the end of the subscription month or year during which termination is elected). Any and all fees due to TopHap as of, and at, the effective date of termination shall nevertheless be deemed to have been fully earned by the Company. You are liable and responsible for any and all fees and charges up and through the date that voluntary termination of your account is effective.
Suspension or Termination by TopHap
As discussed herein above, accounts and subscriptions may be terminated if any payment owed to the Company is past due. TopHap may also limit, suspend or terminate services and accounts of any User if it is determined by TopHap (in its sole and absolute discretion) that there is any previously unpaid, undisputed, and/or outstanding amounts due to the Company from the User.
In the event of TopHap limiting, suspending or terminating a User’s subscription or account, such limitation, suspension or termination (as applicable) shall typically continue until satisfactory arrangements have been made for the payment of any and all past unpaid charges and fees then-owning to TopHap. While an account or subscription is suspended, the User may have no use of the User’s account and any of its services, features or functions.
Restarting Subscription Services
In the event that TopHap limits, suspends or terminates any User’s account or subscription for any reason whatsoever under this Agreement, TopHap is in no way obligated (directly or indirectly) to reestablish such User’s account, access to services or subscription.
TopHap may require such User to pay, and such User must then pay, a fee to restart the User’s account services and subscription. Any such restart fee payable by the User shall be in addition to any and all amounts past due amounts and charges (if any) hereunder that the User shall also responsible to pay before TopHap reestablishes the User’s account and subscription.
Without limiting the foregoing, TopHap may also require certain Users, whose accounts were limited, suspended and/or terminated on account of lack of payment or similar non-performance, to make an additional reasonable deposit of fees in advance to cover future User expenses and to protect TopHap from the risk of loss, non-payment or other similar User issues. Unless otherwise required by applicable law, any such advance deposits will not be held segregated from other funds and will not earn or accrue any interest.
TopHap may utilize, in its sole and absolute discretion, one or more attorneys or collection agencies to assist TopHap in collecting any outstanding monies that Users may owe to TopHap or to assert any other right that TopHap may have against Users (e.g. any breach of this Agreement). You hereby agree to pay and be liable for any and all of the reasonable costs of such collection efforts or actions. These costs may include, without limitation, the costs of a collection agency, reasonable attorney’s fees, court costs and reasonable out-of-pocket expenses.
Permissible User of Our Services
Residential Real Estate Only: You are authorized to use the Services only for residential real estate transactions. You may not use the Site for commercial real estate transactions of any kind.
No Copying, Distributing or Creating Derivative Works: You agree not to copy, publicly distribute, display or create derivative works from, decompile, disassemble or reverse engineer any portion of the Services; provided, that you may privately download and also print for your own personal and non-commercial use applicable portions of the Services. You also agree not to remove or modify any copyright or other intellectual property notices that appear in the Services.
No Scrubbing or Scraping: Publicly available search engine providers may crawl or query the Services only for the purpose of creating an index with links to the Services’ web pages to generate web search engine results. All other automated queries of the Services (including screen and database scraping, spiders, robots, crawlers and any other automated activity with the purpose of obtaining information from the Services) is strictly prohibited, unless you have received express written permission from TopHap.
No Right to Reproduce: Except as expressly stated herein, this Agreement does not provide you a license to use, reproduce, distribute, display or provide access to any portion of the Services on third-party Web sites or otherwise.
By transmitting or distributing any information, materials or content to the Site, you automatically grant, and you represent and warrant that you have the right to grant, to us the ownership and/or license rights specified below.
You acknowledge and agree that we shall own and have unrestricted right to use, publish (in electronic form and/or otherwise), distribute and exploit any and all information that you transmit or distribute on the Site. You hereby waive any and all claims against us for any alleged or actual infringements of any rights of privacy or publicity, moral rights, rights of attribution or any other intellectual property rights in connection with our use and publication of such information. In the event that our ownership of such information is determined by a court of competent jurisdiction to be invalid, you automatically grant to us a perpetual, royalty-free, non-exclusive, unrestricted, worldwide and irrevocable right and license, to the maximum extent permitted by applicable law, to (a) use, copy, reproduce, edit, modify, publish, translate, prepare derivative works based upon, incorporate into other works, distribute, transmit, publicly perform or publicly display such information, in whole or in part, in any form, format, media or technology known or hereafter developed for any purpose, including, but not limited to, advertising and promotional purposes and (b) grant and authorize sub-licenses of the foregoing.
Any comments, feedback or advice that you provide to us at, through, in connection with, or relating to this Site, shall be deemed to be non-confidential. We and our affiliates are free to use such information for any purpose whatsoever that we deem appropriate (in our sole and absolute discretion) on an unrestricted basis, unless otherwise provided in this Agreement.
TopHap reserves the right to monitor, delete or retain content in our sole discretion. Members of the TopHap community (e.g. Users) are required to adhere to the following general guidelines:
Be respectful: We welcome debate, but we will not tolerate personal attacks or defamatory statements about other Users, customers or rea estate agents/brokers. Please avoid controversial topics such as, without limitation, politics, race, religion, and sexuality.
Be honest: Only transmit information that you know is true and accurate. Similarly, do not misrepresent your identity or your affiliation with another person or entity.
Respect privacy and confidentiality: In general, please do not disclose any confidential or sensitive information.
No Solicitation: Real estate agents and other professionals are welcome here, but unless permitted by TopHap, please do not use the Site to promote real estate or professional services without our express prior approval. Furthermore, unless permitted by us, please do not embed any marketing information in listing photos or videos. We will typically provide information about the listing agent or broker in each listing that is shown on our Site.
No Spamming: Do not transmit any form of advertising, junk mail, spam, scams or chain letters.
No illegal or offensive material: Do not submit or transmit anything that contains abusive, threatening, illegal, inflammatory, libelous, obscene or pornographic content.
No Discrimination: Do not transmit any content that expresses a stated or implicit discriminatory preference.
Your Conduct, Behavior and Duties
You represent, warrant and agree that you will not, directly or indirectly: (a)falsify or misrepresent any information regarding your identity or intentions with respect to any matter in connection with the Site; (b) post, publish, transmit, distribute, or upload any information or materials through the Site that the Company, in its sole and absolute discretion, deems unlawful, obscene, lewd, sexually explicit, derogatory, abusive, threatening, discriminatory with respect to race, religion or gender, or is otherwise disagreeable; (c) post, publish, transmit, distribute, or upload any information or materials through the Site that contains a virus, or any other harmful software code or programming routine that could impair operation of the Site or access of others who may, do or will access, browse or use the Site; (d) post, publish, transmit, distribute, offer or upload any information or materials through the Site that is unlawful, false, deceptive, misleading, fraudulent, or otherwise disagreeable, including without limitation, any information, communication or transmission that constitutes or supports the commission of any illegal activity or any violation of local, state, national or applicable foreign law, including without limitation any export laws and regulations; (e) post, publish, transmit, distribute, or upload any information or materials through the Site that violates any copyright, trademark or any other proprietary intellectual property rights of others, unless you have obtained express permission from such owner; (f) post, publish, transmit, distribute, or upload any information or materials through the Site that violates any legal, property, intangible, confidentiality or privacy rights of others, unless you have obtained express permission from such owner (g) post, publish, transmit, distribute, or upload through the Site any bulk e-mail solicitations, chain letters, solicitations, advertisements, pyramid schemes or any other unsolicited communication, including, without limitation, spamming those who access, browse or use the Site; (h) use, reproduce, distribute, publish or communicate any information or materials obtained from the Site for any commercial reason, unless such activity has been expressly approved by the Company; (i) impersonate our personnel (or any other person or entity) or engage in any other pre-texting; (j) attempt to (A) probe, scan or test the vulnerability of a system, server, account or network, or (B) breach security, validation or authentication measures of any of the foregoing, (k) attempt to interfere with, disrupt or disable service or access or use of the Site to or for any user, host, server, account or network, including, without limitation, via means of overloading, “flooding," "mailbombing," "denial of service" attacks, or "crashing"; (l) forge any TCP/IP packet header or any part of the header information in any electronic mail or other transmission; (m) take any action in order to obtain services to which you are not entitled; (n) attempt to utilize another party's account name or persona without first obtaining authorization from that party; (o) attempt to circumvent or alter any method of measuring, securing, tracking or recording for the Site; and/or (p) resell, redistribute, sub-license or redirect the Site for any reason whatsoever.
Violations of the aforementioned representations, warranties and covenants and/or of the security of the Site may result in severe civil or criminal liability for the offending party.
You are solely responsible for, and assume all liability regarding each of the following: (i) the information and content you contribute to the Site; (ii) the information and content you post, transmit, publish, distribute, upload or otherwise make available through the Site; and (iii) your interactions with other users through the Site. YOU ARE SOLELY AND ABSOLUTELY RESPONSIBLE AND LIABLE IN CONNECTION WITH OR RELATING TO YOUR USE, ACCESS, TRANSMISSION AND/OR PARTICIPATION ON THE SITE.
You agree to comply, at your sole and own expense, with any and all applicable laws, ordinances, regulations and codes, including (without limitation) the identification and procurement of required permits, certificates, licenses, insurance, approvals and inspections, needed as a result of or in connection with this Agreement. You will immediately report to us any and all suspected or actual violations of the Agreement by others that you are aware of (or should be aware of, based upon the circumstances).
Additional Representations, Warranties and Covenants
You hereby expressly represent, warrant, covenant and agree that: (a) you have full capacity, right and authority to enter into and perform this Agreement; (b) your use of the Site will not, directly or indirectly, infringe (in whole or in part) any intellectual property rights, including, but not limited to, patent, copyright, trademark, trade secret, mask work or other intellectual property rights, personal or privacy rights of any third party or Company; (c) your use of the Site will in all manners and respects comply with any and all applicable laws, rules and regulations; (d) your use of the Site will not in any manner, directly or indirectly, disparage, defame, discredit or harm Company or its reputation or goodwill; (e) your entry into this Agreement and/or use of the Site hereunder does not breach any of your obligations to any third party, breach any contract or agreement or violate any applicable rule, law or regulation; (f) your entry into this Agreement and use of the Site is for a bona fide purpose and you are not using the Site to resell any services or software or distribute or otherwise use the services or software for an improper, illegal, immoral or unethical purpose; and (g) you will only use the Site in compliance with the highest standards and prevailing best practices regarding use of the same.
Users also acknowledge and agree that projected market and financial information, conclusions and other information contained on the Site (and/or any of TopHap’s databases and analytical processes) are based upon tested methodologies for accuracy. However, such information and conclusions are not definitive forecasts nor opinions of valuations. All such information and conclusions are stated in terms of probability of likelihood based on market factors and information submitted to TopHap. Such information and conclusions are not guaranteed by TopHap and should not be construed as investment advice or relied upon for critical types of decision-making by individuals or entities.
All materials (including, but not limited to, source code, data, images, and other content) contained in the Services, including (without limitation) the selection and arrangement of the materials, are owned by TopHap or are licensed by TopHap for use on the Site.
Company Property: All information, materials, content, images, graphics, software, trademarks, logos, service marks on the Site (collectively the "Proprietary Information") is and are the sole and exclusive property of the Company, unless otherwise stated, and may not be used, copied, reproduced, distributed, republished, uploaded, downloaded, displayed, posted or transmitted in any form or by any means without the prior express written consent of the Company. The Proprietary Information, including (without limitation) all HTML code, server-side code, XML code, and compilations of meta tag key words, specification and trade name data, newsletters and publications, press materials, product and service descriptions, testimonials and all similar data and information, is exclusively owned by the Company, and is and shall, to the maximum extent allowed by law, be protected by copyright and trademark laws and international treaty provisions. To the extent the Proprietary Information is also covered by copyright law (and you are hereby advised that much or all of the Proprietary Information is copyrighted), violators are given notice that any such violations may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible.
Marks: TopHap, the TopHap logos and other TopHap trademarks, service marks, graphics, and logos used in connection with the Services are trademarks or registered trademarks of TopHap in the U.S. and/or other countries.
Nothing contained on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any trademarks (including, without limitation, any and all of the above listed trademarks) displayed on this Site without the prior express written consent of Company or such party that may own the trademarks. The absence of a product or service name or logo anywhere in the text of this Site does not constitute a waiver of any trademark or other intellectual property rights concerning that name or logo. All other products and brand names are trademarks and/or registered trademarks of their respective companies.
Other Intellectual Property: TopHap also owns trade secrets and know-how that contribute to the functionality of the Services.
Listing Data: All listing data provided to us is updated daily and NEVER re-syndicated to 3rd party sites. While listing information is deemed reliable, it is not guaranteed and should be independently verified.
MLS Data: The MLS data on our Site is the property of the individual MLSs providing the data. In general, these MLS networks have granted TopHap the necessary licenses or other approvals to display the MLS data on the Site. Information from MLS sources is generally deemed to be reliable but not guaranteed as accurate.
Days on TopHap: The “Days on TopHap” value is derived from the date the listing was first displayed on our Site, not from data on the MLS.
Neighborhood Location Outlines: The neighborhood outlines that appear on TopHap have been supplied by ATTOMDATA.
Tax and Parcel Data: This information is provided by ATTOMDATA.
Permit Data: This information is provided by Corelogic.
Deed Data: This information is provided by ATTOMDATA.
Reservation of Rights: Except for the limited license to use the Site granted to Users pursuant to this Agreement, TopHap reserves any and all of its intellectual property rights in the Site and Services. This Agreement does not grant you any right or license with respect to any trademarks and logos.
Restrictions on Proprietary Information
Except as enabled and directed on the Services, you may not modify, decompile, reproduce, redistribute, attempt to commercially gain from your use (or misuse) of the Services or any of their components. You may not use any meta-tags or other hidden text using the TopHap name or trademarks without our specific permission. We may revoke your permission to access and use the Sites or Services, and we may block or prevent you from accessing the Site in our sole and absolute discretion without notice to you. If you violate this Agreement, your permission to access and use the Services shall be automatically revoked.
Users of the Site shall have no right to the Proprietary Information. COPYING OR REPRODUCTION OF THE PROPRIETARY INFORMATION, INCLUDING, BUT NOT LIMITED TO, THE SITE AND ITS SOFTWARE OR CONTENT, TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED.
The Site and its contents are intended solely for the personal, non-commercial (except as specifically and expressly agreed in writing by Company in connection with a specific feature of the Site only) use by Site users and may only be used in accordance with the terms of this Agreement. Materials displayed or performed on the Site (including, but not limited to text, blogs, graphics, articles, photographs, images, illustrations) may be protected by copyright. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any such materials accessed through the Site, and shall not use, copy reproduce, modify translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any such materials or third party submissions or other proprietary rights not owned by you, (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right. You shall not remove, obscure, or alter any notices or links on the Site or any of its features or tools.
You may not in any event, directly or indirectly, do any of the following: (a) remove any copyright, trademark, or other proprietary notices affixed to or on the Site; (b) sell, transfer, rent, lease, or sub-license the Site to any third party; (c) alter, change, repurpose or modify the Site; (d) make the Site available over a network or platform where it could be used by multiple computers or devices at the same time; (e) reverse engineer, disassemble, decompile or attempt to derive source code from the Site; (f) prepare derivative works, improvements or intellectual property based on the Site; (g) use the Site for any unlawful, immoral, unethical or unreasonable purpose or activity; or (h) cause or intend the Site to be used in any way or manner that may violate the intellectual property or other personal rights (including, but not limited to, privacy rights and ownership rights) of any other person or entity. Failure by you to duly comply with applicable laws, rules and regulations regarding copyrights, patents and other intellectual property and personal rights may subject you to both civil and criminal liability, including (without limitation) possible fines and incarceration, and Company will not be responsible for any breaches by you of this Agreement or violations by you of any applicable law, rule or regulation. If, for any reason, you are uncertain about your rights (if any) to copy, distribute or use any material, you should contact an attorney and obtain legal advice regarding the same.
For the avoidance doubt, the parties acknowledge and agree that nothing in this Agreement is intended to grant any intellectual property rights (including, without limitation, under or with respect to any patent, mask work right, copyright, trademark, title, interest in products or trade secret of Company) to you. All such rights shall remain the sole and exclusive property of the Company and you shall gain no interest, right or title therein by entering into or performing this Agreement or using the Site. UNDER NO CIRCUMSTANCES WHATSOEVER MAY YOU, DIRECTLY OR INDIRECTLY, REVERSE ENGINEER, DECOMPILE, OR OTHERWISE ATTEMPT TO DECIPHER THE SERVICE, SOFTWARE OR ANY OTHER ASPECT OF THE COMPANY’S TECHNOLOGY, INTELLECTUAL PROPERTY, PRODUCTS, SERVICES OR PROPRIETARY INFORMATION.
It is expected that all Users will comply with applicable copyright laws. However, if TopHap is notified of claimed copyright infringement, or otherwise becomes aware of facts and circumstances from which infringement is apparent, the Company will respond expeditiously by removing, or disabling access to, the material that is claimed to be infringing or to be the subject of infringing activity.
Under appropriate circumstances, TopHap will, in its sole discretion, terminate authorization of Users who are repeat infringers. If you believe that a User is a repeat infringer, please contact TopHap and provide information sufficient for us to verify that the User is a repeat infringer.
The Company will, in appropriate circumstances, terminate the access and use of the Site of users who infringe the intellectual property rights of others. If any individual or entity believes that its/his work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on this Site or on sites linked to/from this Site, please provide Company's Copyright Agent a formal “Notice” containing the following elements:
1. information sufficient to permit Company to contact the owner (or its/his agent), such as a physical address, telephone number, and e-mail address;
2. a detailed description of the copyrighted work or works that the owner (or its/his agent) claims have been infringed and identification of what material in such work(s) is claimed to be infringing and which the owner (or its/his agent) has request to be removed or access to which is to be disabled;
3. a reasonable description of where the material that the owner (or its/his agent) claims is infringing is located on the Site (e.g. a specific URL);
4. a statement by the owner (or its/his agent) that it/he/she has a good faith belief that the use of the material identified in the Notice in the manner complained of is not authorized by the copyright owner, its/his/her agent, or the law;
5. a statement by the owner (or its/his agent) that the information in the Notice is accurate and, under penalty of perjury, that the provider of the Notice is in fact the copyright owner or authorized to act on the copyright owner's behalf; and
6. a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest that is alleged to have been infringed.
TopHap complies with the appropriate provisions of the Digital Millennium Copyright Act (DMCA) in the event a counter notification is received by its Copyright Agent.
If your User access or content is removed or access to it is disabled, and you believe in good faith that a claim has been wrongly made against you, you may submit a counter-notification to TopHap. Your counter-notification must be in writing and sent to our Copyright Agent, whose address is below. Your counter-notification must contain the following information:
1. Your physical or electronic signature;
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
4. Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which you are located, or if you are outside of the United States, for any judicial district in which TopHap may be found, and that you will accept service of process from the person who notified TopHap of the alleged infringement or an agent of such person.
The Copyright Agent for Notice of claims of copyright infringement, or DMCA counter-notices, can be reached as follows:
TopHap Legal Department
2010 Crow Canyon Place, Suite 100
San Ramon, CA 94583
THE COPYRIGHT AGENT SHOULD BE CONTACTED ONLY IF ANY INDIVIDUAL OR ENTITY BELIEVES THAT (1) ITS/HIS/HER WORK HAS BEEN IMPROPERLY USED OR COPIED IN A WAY THAT CONSTITUTES COPYRIGHT INFRINGEMENT AND SUCH INFRINGEMENT IS OCCURRING ON THE SITE OR ON SITES LINKED TO/FROM THE SITE; OR (2) ITS/HIS/HER ACCESS OR CONTENT RELATED TO THE SITE WAS WRONGLY REMOVED OR DISABLED. ALL OTHER FORMS OF INQUIRIES OR CORRESPONDENCE DIRECTED TO THE COPYRIGHT AGENT WILL NOT RECEIVE A RESPONSE.
The Company reserves the right, but has no affirmative obligation, to supervise material, content and information on the Site. The Company also reserves the right (but has no obligation), in its sole and absolute discretion, to amend, edit, remove or otherwise block any information, material or content on the Site. However, to the maximum extent allowed by applicable law, the Company does not assume responsibility for verifying the content, materials and information on the Site and is not responsible for any damages, losses, expenses or other injuries incurred by any user as a result of, or in connection with, any content, material and information posted, published, transmitted, distributed or uploaded on the Site. Users of the Site agree to indemnify and hold harmless the Company from any damages, losses, expenses or other injuries incurred by any other user as a result of, or in connection with, using the Site.
TopHap is not responsible for any errors in displayed information or delays in displaying information. All information provided on Site is either transmitted to TopHap from other entities or persons or was obtained through publicly available sources. Issues of data accuracy may be brought to the attention of TopHap by sending feedback, but it is likely that the accuracy of such information cannot be corrected directly by TopHap (only the entity or person that generated the information can correct the information). For example, by way of illustration only and without limitation, incorrect listing information can only be changed by the third party listing agent under our terms with the applicable MLS.
We may alter, limit, suspend, discontinue or terminate the Site or your access to use the Site at any time for any reason without notice or liability to you or to any third party. The Site may become unavailable due to maintenance or malfunction of computer equipment or for other reasons and may result in damages to your systems or operations. You shall be solely responsible for ensuring that any information, materials or content obtained from the Site does not contain any virus or other computer software code or subroutine designed to disable, erase, impair or otherwise damage your systems, software or data. Furthermore, you expressly agree to indemnify and hold harmless the Company from any damages, losses, expenses or other injuries incurred by you as a result of, or in connection with, any system errors, malfunctions or other interruptions or temporary or permanent discontinuation of the Site.
As a condition to use of the Site and/or certain portions of the Site, you may be required to register with Company and select a password and user name. In such event, you shall provide Company with accurate, complete, and updated registration information at all times. Failure by you to do so shall constitute a breach of this Agreement, which may result in immediate termination (without notice) of your account and registration status. Furthermore, the Company reserves the sole and absolute right to refuse registration of, or cancel any user’s registration and account in the sole and absolute discretion of Company. You shall be exclusively responsible for maintaining the confidentiality of your password, and you shall be responsible and liable for any and all uses of your account and password (whether such use is by your or another person or entity).
The Company reserves the right, in its sole and absolute discretion, to modify, suspend, limit, discontinue or terminate any aspect of the Site at any time, with or without notice to any past, current or potential users of the Site.
Links to Third Parties
The Site may contain links and pointers to Internet sites maintained by third parties. The Company does not operate or control in any respect any information, products or services on such third-party sites. Third-party links and pointers are included solely for the convenience of users of the Site, and do not constitute any endorsement or verification by the Company. You expressly agree to assume sole responsibility for use of third party links and pointers.
Please recognize that we do not control these third party websites and we make no representations or warranties whatsoever about any website. TopHap is not responsible for and does not endorse any features, content, advertising, products or other materials on or available from Third Party Sites.
The Company expressly disclaims any and all liability and responsibility for the content of any websites other than the Site. Furthermore, you are directed to take any and all precautions to ensure that third-party websites are free of such items as viruses, worms, trojan horses and other items of a destructive nature.
Moreover, if you visit or otherwise arrive at third-party sites via such links from our Site, and thereafter you complete sales, transactions or other activities, we have no responsibility or liability whatsoever with any such sales, transactions or other activities. All such sales, transactions or other activities are independent of us, and occur only between you and such third-party site(s).
Links to Us
Unless another party has entered into a written agreement with the Company, a party may only provide a hypertext link to the Site on another web site, if such hyperlink complies with all of the following conditions: 1) the link must be a text-only link clearly marked as “www.tophap.com”; 2) the link must "point" to the URL “http://www.tophap.com” and not to any other pages within the Site; 3) the link, when activated by a user of the Site, must display the Site full-screen and not with a "frame" on the linking web site; and 4) the appearance, position and other aspects of the link must not be such as to damage or dilute the goodwill associated with the name and trademarks of the Company and the Site and must not create the false appearance that the Company or the Site is associated with or endorses or sponsors the linking web site.
The Company may selectively revoke its consent to any link at any time in the Company’s sole and absolute discretion. For the avoidance of doubt, you shall not be permitted link to us in any instance (or the Site) without our express prior written consent.
Location-Specific Agreements and Disclaimers for MLSs and other Data Providers/Sources
TopHap receives homes for sale from many listing sources. In general, the information provided by these data sources is deemed reliable, but not guaranteed. Information that is provided by data sources through our Site is generally for consumers' personal, non-commercial use only, and the information should not typically be used for any purpose other than by prospective buyers with respect to the identification of potential properties for real estate purchase or sale transactions.
TopHap currently works with the following MLS providers and data sources (listed below). Users who desire additional information about any specific data provider’s terms and conditions or policies are encouraged to visit the website of such data provider and/or make an inquiry directly to such data source.
TopHap does not guarantee that any data source will be available on an ongoing or continuing basis or for any specific period of time. TopHap also does not warrant or guarantee the content or information provided by any particular data provider. Users who view the Site and its material do so at their own absolute risk. TopHap provides any and all information as-is from data sources and does not verify or assume any responsibility for the content of its data providers. Users assume any and all risk for their use of all information on our Site, and TopHap strongly recommends that Users independently review and verify all information presented on the Site for accuracy. See also the section entitled“Disclaimer of Warranties” below.
Users are also encouraged to retain appropriate professionals and real estate advisors, as necessary, in order to assist them in evaluating information and inspecting properties displayed on the Site. In general, measurements and calculations (e.g. square footage, acreage, lot size, etc.) provided to us by our data sources regarding properties tend to be approximate, not exact.
Users should also be mindful that properties shown on our Site may or may not actually be listed by the particular office/broker/agent that is presenting the information.
Data provided by our data sources may also, without limitation, consist of data that has been compiled from various other third-parties and outside information sources. This third-party information may not have been verified or reviewed by our data sources.
Data provided from our data sources may also be subject to copyright, trademark and other intellectual property protection. Users should be careful and ensure that they comply with any and all laws and regulations governing such intellectual property rights of our data sources. In general, the data provided on our Site by data sources may not be disseminated or publicly distributed by Users, and any such prohibited action by a User would likely violate intellectual property laws and rights.
The listing of data sources and providers below is subject to modification, revision or amendment at any time by TopHap (in its sole and absolute discretion) with or without notice to you. TopHap does not represent, warrant or guarantee that the list of data providers and sources is complete, up-to-date or comprehensive. The Company is also under no obligation whatsoever to keep this list current or accurate. The list below is provided only for our Users’ general information purposes as of the Effective Date. No User is herein entering into any direct relationship (nor is any User a third-party beneficiary or contracting party) with any of our data sources or data providers.
As used below, “CARETS” refers to California Real Estate Technology Services, which is a consolidated MLS property listing data feed. The term “IDX” refers to Internet Data Exchange.
Listing of our Data Providers and Data Sources
Antelope Valley MLS (Greater Antelope Valley Association of Realtors MLS (GAVOR))
Bakersfield Association of Realtors
Bay Area Real Estate Information Services (BAREIS)
Bay East Association of Realtors (Bay East)
California Desert Association of Realtors (CDAR)
Combined LA/Westside MLS (CLAW) based on CARETS (via IDX)
CRISNet MLS (California Regional Multiple Listing Service, Inc.)
CRMLS (California Regional Multiple Listing Service, Inc.)
Central Coast Regional MLS
Desert Area Multiple Listing Service (DAMLS) based on CARETS (via IDX)
Golden Empire MLS
I-Tech MLS based California Regional Multiple Listing Service, Inc.
I-Tech (Glendale Association of Realtors)
I-Tech (Pasadena/Foothills Association of Realtors)
MetroList Services, Inc.
Nevada County Association of Realtors (NCAOR)
North San Diego Association of Realtors (NSDAR) based on SANDICOR (via IDX)
North Santa Barbara County MLS (NSBCRMLS) (Lompoc Valley – Santa Ynez)
Pacific Southwest Association of Realtors (PSAR) (San Diego) based on SANDICOR (via IDX)
Palm Springs Regional Association of Realtors (PALM) based on CARETS (via IDX)
SDAR (Greater San Diego Association of Realtors) based on SANDICOR (via IDX)
San Francisco Association of Realtors (SFAR MLS) via IDX
Santa Barbara Multiple Listing Service (SBMLS)
Ventura County Regional Datashare (VCRDS) based on CARETS (via IDX)
The Company does not guarantee the preservation or maintenance of any records relating to its Site and you are encouraged to keep individual records and an accounting of all activity conducted through the Site.
Equal Housing Opportunity
TopHap is pledged to the letter and spirit of U.S. policy for the achievement of equal housing opportunity throughout the United States. We encourage and support an affirmative advertising and marketing program in which there are no barriers to obtaining housing because of race, color, religion, sex, handicap, familial status, or national origin.
Third-Party Restrictions on Use
Certain third parties that we work with require us to impose additional restrictions on your use of the Site. These restrictions (which are summarized below) are in addition to, and without limitation to, any and all other restrictions on your use of the Site that are otherwise noted in this Agreement. Users are required at all times to comply with the terms and conditions that are noted below in addition to, and without limitation to, all other terms and conditions in the rest of this Agreement.
The Site is intended to be used only as permitted in this Agreement. You shall not use the Site for any purposes other than as allowed herein. Without limiting the foregoing, and except to the extent expressly authorized herein, you shall not do any of the following: (a) disclose, disseminate, reproduce or publish any portion of the Site in any manner; (b) sublicense, resell, relicense or redistribute the Site in whole or in part; (c) commingle, process, modify or combine any portion of the Site with other data or software from any other source; (d) use the Site to create, develop, enhance or structure any database, or create models, analytics, derivative products or other derivative works for resale or external distribution; (e) disassemble, decompile or reverse engineer Site; or (f) use the Site in any way that is defamatory, trade libelous, unlawfully threatening or unlawfully harassing.
The names, logos and product names of third parties who work with us are generally considered to be product names are trademarks or service marks of those third parties or their respective affiliates (collectively, the “Third-Party Marks”). No right or license to use the Third-Party Marks is granted under this Agreement. You shall not attempt, directly or indirectly, to remove, alter or obscure any Third-Party Marks or proprietary notices contained on the Site.
Corelogic Solutions, LLC (“Corelogic”) shall be considered to be a third-party beneficiary to the sub-section entitled “CoreLogic Restrictions” above.
User may only the Site for the User’s internal purposes. User shall not use the Site for any commercial purposes in relation to any product or service to be provided to any third party or any other form of commercial exploitation (including, but not limited to, the reproduction, sale or publication of the Site).
With respect to any data, information or other content on the Site that is provided by Renwood RealtyTrac, LLC, a Delaware limited liability company doing business as ATTOM Data Solutions (“ATTOM”), Users acknowledge that such data, information or other content (“ATTOM Material”) is sourced from public documents or statistical calculations, is provided on an “as is, as available” basis with all faults and defects, and neither ATTOM nor TopHap make any warranties, express or implied, including, without limitation, those of merchantability and fitness for a particular purpose with respect to ATTOM Material. Furthermore, neither ATTOM nor TopHap are responsible for errors, omissions, miscalculations, or misrepresentations of value with respect to ATTOM Material.
You do not acquire any proprietary rights in or to any ATTOM Material, and such rights shall remain exclusively in ATTOM and/or its third-party data providers. You acknowledge that ATTOM Material is a valuable commercial product, the development of which has involved the expenditure of substantial time and money.
Your use of ATTOM Material shall be at your own risk, and you shall indemnify and hold harmless ATTOM and its third-party data suppliers with respect thereto (in addition, and without limitation, to your duties and obligations to indemnify TopHap pursuant to this Agreement).
Disclaimer of Warranties
The content and materials on the Site is for informational and communication purposes only and is presented “as-is” without any representations or warranties relating to its accuracy, reliability or usefulness.
TO THE FULLEST AND MAXIMUM EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW(S), THE FOLLOWING DISCLAIMER SHALL APPLY: THE SITE AND ALL INFORMATION, CONTENT AND MATERIALS THEREON ARE DISTRIBUTED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND. THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. SPECIFICALLY, BUT WITHOUT LIMITATION, THE COMPANY DOES NOT WARRANT THAT: (1) THE INFORMATION, MATERIALS OR CONTENT ON THE SITE IS CORRECT, ACCURATE OR RELIABLE; (2) THE FUNCTIONS CONTAINED ON THE SITE WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; OR (3) DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU HEREBY ACKNOWLEDGE THAT USE OF THE SITE IS AT YOUR SOLE AND ABSOLUTE RISK. IF YOU ARE DISSATISFIED OR HARMED BY TOPHAP OR ANYTHING RELATED TO TOPHAP OR ITS SERVICES, YOU MAY DEACTIVATE YOUR TOPHAP ACCOUNT AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH
Opinions, comments, advice, statements, offers, or other materials, information or content made available through the Site, but not directly by us, are those of their respective third-parties and should only be relied upon at the User’s discretion. We are not responsible or liable for third-party content.
THE COMPANY DOES NOT UNDER ANY CIRCUMSTANCES WHATSOEVER: (i) GUARANTEE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION PROVIDED ON THE SITE BY ANY THIRD PARTY, OR (ii) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, COMMENT, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN COMPANY (AND EVEN THEN, ONLY SUBJECT TO THE LIMITATIONS OF LIABILITY AND OTHER TERMS SPECIFIED HEREIN). UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON INFORMATION OR OTHER CONTENT OR MATERIALS POSTED OR PUBLISHED OR UPLOADED ON THE SITE, OR TRANSMITTED OR DISTRIBUTED TO, OR BY, ANY OTHER USERS OR THIRD PARTIES.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE COMPANY OR ITS REPRESENTATIVES WILL UNDER ANY CIRCUMSTANCES CREATE A WARRANTY, UNLESS SPECIFICALLY SET FORTH IN AN EXPRESS WRITING SIGNED BY AN OFFICER OR COMPANY. SHOULD THE SOFTWARE OR SERVICE PROVE DEFECTIVE OR ERRONEOUS, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICE, REPAIR, OR CORRECTION AND WE WILL HAVE ABSOLUTELY NO LIABILITY WITH RESPECT THERETO.
You acknowledge and agree that the Site may fail at any time, may not operate error-free, may be interrupted by power failure or otherwise, may be down for maintenance or troubleshooting, and may be subject to delays, disruptions, denial of service attacks, malfunction or other problems. Further, you acknowledge and agree that the Site may fail to meet your needs. You agree that you will maintain a primary electronic file of your data and materials and will not use the Site as a substitute therefor.
TERMINATION OF THE AGREEMENT AND YOUR USER ACCOUNT SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY. TOPHAP IS NOT RESPONSIBLE, AND MAKES NO REPRESENTATIONS OR WARRANTIES FOR THE DELIVERY OF ANY MESSAGES (SUCH AS, WITHOUT LIMITATION, POSTING OF ANSWERS OR TRANSMISSION OF ANY OTHER THIRD-PARTY CONTENT) SENT THROUGH TOPHAP TO ANYONE. ANY MATERIAL, SERVICE, OR TECHNOLOGY DESCRIBED OR USED ON THE SITES MAY BE SUBJECT TO INTELLECTUAL PROPERTY RIGHTS OWNED BY THIRD PARTIES WHO HAVE LICENSED SUCH MATERIAL, SERVICE, OR TECHNOLOGY TO US. TOPHAP DOES NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF THE PERSONS SUBSCRIBING TO ITS SERVICES, NOR DOES IT HAVE ANY OBLIGATION TO MONITOR THE USE OF ITS SERVICES BY OTHER USERS OF THE COMMUNITY; TOPHAP DISCLAIMS ANY AND ALL LIABILITY FOR IDENTITY THEFT OR ANY OTHER MISUSE OF YOUR IDENTITY OR INFORMATION BY OTHERS.
TOPHAP DOES NOT GUARANTEE THAT THE SERVICES IT PROVIDES WILL FUNCTION WITHOUT INTERRUPTION OR ERRORS IN FUNCTIONING. THE OPERATION OF THE SERVICES MAY BE INTERRUPTED DUE TO MAINTENANCE, UPDATES, OR SYSTEM OR NETWORK FAILURES. TOPHAP DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN FUNCTIONING. FURTHERMORE, TOPHAP DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SITES DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, AND FOR ANY OTHER REASON.
Limitation of Liability
This entire section entitled “Limitation of Liability” shall apply notwithstanding anything to the contrary in this Agreement, and is an essential element and section of this Agreement. Moreover, in the absence of such limitations of liability, the economic terms of this Agreement would have been substantially different than provided herein and/or the parties would not have entered into this Agreement.
The Company shall have no liability whatsoever to any user for any damages, losses and causes of action (whether in contract or in tort or otherwise) in connection with the access, browsing or usage of the Site or any of the information, content or materials contained thereon. Except as is expressly set forth herein, no third-party beneficiaries are created by virtue of the Agreement and the Company expressly disclaims any liability under any circumstances for any damages, losses and causes of action (whether in contract or in tort or otherwise) to any third parties in connection with the access, browsing or usage of the Site or any of the information, content or materials contained thereon.
IN NO EVENT WILL COMPANY BE LIABLE (EVEN IF COMPANY KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH, ANY OF THE FOLLOWING: (I) ANY VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS, USAGE OR BROWSING OF THE SITE; (II) THE USE OR INABILITY TO USE THE SITE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OR CORRUPTION OF DATA OR PROGRAMS, SERVICE INTERRUPTIONS AND PROCUREMENT OF SUBSTITUTE SERVICES; (III) THE DOWNLOADING OF ANY MATERIALS, DATA, CONTENT, INFORMATION, TEXT, IMAGES, VIDEO, OR AUDIO FROM THE SITE; (IV) ANY OF THE CONTENT, INFORMATION OR MATERIALS CONTAINED ON OR THROUGH THE SITE; AND/OR (V) YOUR RELATIONSHIP WITH THE COMPANY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, EXEMPLARY, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH OR RELATING TO THE USE OF THE SITE, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER USERS OF THE SITE. THIS INCLUDES ANY CLAIMS, LOSSES OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO ATTEMPT TO DEFRAUD OR HARM YOU.
THE COMPANY SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY INFORMATION PUBLISHED ON LINKED WEB SITES, CONTAINED IN ANY USER SUBMISSIONS PUBLISHED ON THE SITE, OR PROVIDED BY THIRD PARTIES. NEITHER THE COMPANY NOR ITS THIRD-PARTY CONTENT PROVIDERS SHALL BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OR FOR LOST REVENUES OR PROFITS, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES AND REGARDLESS OF THE THEORY OF LIABILITY.
If applicable law does not allow the limitation or exclusion of liability or incidental or consequential damages to the extent provided above, the above limitation or exclusion will not apply to you, but only to the extent that it is disallowed pursuant to applicable law. However, in no event whatsoever shall our total liability to you for all damages, losses, and causes of action (whether in contract, tort (including but not limited to negligence) or otherwise) exceed the amount paid by you, if any for accessing the Site.
UNLESS PROHBITED BY APPLICABLE LAW, OUR OVERALL LIABILITY TO YOU IS EXPRESSLY LIMITED AS FOLLOWS: UNDER ABSOLUTELY NO CIRCUMSTANCES WHATSOEVER SHALL OUR AGGREGATE LIABILITY, IN ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH OR RELATED TO THIS AGREEMENT OR THE USE OR NON-USE OF THE SITE (REGARDLESS OF THE THEORY OF LIABILITY), EXCEED THE TOTAL AMOUNT PAID BY YOU TO ACCESS THE SITE, OR, IF YOU HAVE NOT PAID TO USE THE SITE, THE AMOUNT OF $25.00 (TWENTY-FIVE UNITED STATES DOLLARS) OR ITS EQUIVALENT.
Sole and Exclusive Remedy
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE SURVIVE IN THE EVENT SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNENFORCEABLE. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER THE DAMAGES ARISE FROM (A) BREACH OF CONTRACT, (B) BREACH OF WARRANTY, (C) NEGLIGENCE, OR (D) ANY OTHER CAUSE OF ACTION, TO THE EXTENT SUCH EXCLUSION AND LIMITATIONS ARE NOT PROHIBITED BY APPLICABLE LAW. IF YOU DO NOT AGREE WITH ANY PART OF THIS AGREEMENT, OR YOU HAVE ANY DISPUTE OR CLAIM AGAINST TOPHAP OR ITS SUPPLIERS WITH RESPECT TO THIS AGREEMENT OR THE SERVICES, THEN THE SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES.
We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses, and promptly reimburse our reasonable costs and expenses (including, without limitation, reasonable attorney and professional fees) in connection with, relating to or arising from our defense in such matter. No settlement, compromise or adjudication of any Claim to which indemnity applies hereunder, shall be effective or permitted without the express and prior written consent of the Company.
Changes or Specialized Modifications
The Company may, in its sole and absolute discretion, modify or change any aspect of the Agreement at any time, in whole or in part and with or without prior notice to you. Please consult the end of this Agreement to determine when the Agreement was last revised. You agree to periodically review this Agreement to ensure that you are in compliance with any ongoing changes or modifications that are made to the Agreement. Your continued use of the Site after any such modifications or changes are posted will constitute your acceptance of such any modifications to the Agreement.
The Company reserves the right to modify the Agreement as it applies to any specific user, provided that any and all such special modifications must be in writing between the Company and the applicable user. Any specialized modifications so made shall apply exclusively and only the user that is a party to such written agreement.
Term and Termination
This Agreement becomes effective and constitutes a binding legal agreement between you and us upon your acceptance of the Agreement by accessing, browsing and/or using the Site and will remain in effect until such time as it is terminated hereunder.
The Company may, at any time, in its sole and absolute discretion, terminate this Agreement with you and your access to the Site with or without notice to you and for any reason or no reason; provided that this Agreement will automatically terminate, at the sole option of the Company, without any further action being required (such as a notice) upon your breach of any of the terms of this Agreement.
Users may elect to terminate this Agreement and discontinue their use of the Site (e.g. deactivate their existing User account) at any time by notifying the Company in writing (or via electronic mail), by visiting your Account Settings (and deactivating the User account) or by contacting Customer Service.
Unless otherwise explicitly stated, all of your applicable obligations, duties and responsibilities of a continuing or ongoing nature in the Agreement will survive termination of your use of the Site and/or the Agreement.
Governing Law: This Policy shall be governed by and construed in accordance with the laws of the State of California, without regard to the conflicts of law provisions thereof. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to the Agreement.
Informal Negotiations: To expedite resolution and reduce the cost of any dispute, controversy or claim arising between you and TopHap, you and TopHap agree to first attempt to negotiate informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon notice from one party to the other party.
If necessary to preserve a claim under any applicable statute of limitations, you or TopHap may initiate arbitration while engaging in the above-referenced informal negotiations.
Mandatory Arbitration: You expressly agree that any controversy, dispute or claim arising out of, relating to, or in connection with, this Agreement or the alleged breach thereof, or relating to our activities or services or to us otherwise under this Agreement, shall be resolved by confidential binding arbitration in the county and State in which the Company maintains its principal place of business. You and the Company shall bear equally the costs of any such arbitration. The arbitration shall be conducted before a single neutral arbitrator. The arbitrator shall issue a written decision that contains the essential findings and conclusions on which the decision is based. Judgment on any award rendered by the arbitrator(s) shall be binding on the parties and may be entered in any court having jurisdiction thereof.
Waivers: Except as noted below, to the fullest extent permitted by law, you and TopHap agree that no class, collective, aggregate, or representative actions can be asserted in arbitration, litigation, or otherwise (“Class Action Waiver”). All claims must be brought solely in your or TopHap’s individual capacity, and not as a plaintiff or class member in any purported class, representative, aggregated, or collective proceeding. Furthermore, you expressly understand and waive your right to trial by a jury.
THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO CLAIMS COVERED BY THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARTIES FURTHER WAIVE ANY RIGHTS THEY MAY HAVE TO PURSUE OR PARTICIPATE IN A CLASS, COLLECTIVE, AGGREGATE, OR REPRESENTATIVE ACTION PERTAINING TO ANY SUCH CLAIMS BETWEEN THEM.
If the Class Action Waiver, or any other provision requiring that claims be brought only on an individual basis and not on a class, collective, or representative basis, is determined to be invalid or unenforceable with respect to any particular claim, then that claim shall not proceed in arbitration but rather will be resolved in a court of competent jurisdiction. If that happens, however, the arbitration provisions in this Agreement will still be fully enforceable as to all other claims, which must be resolved in arbitration on an individual basis. Any arbitrable claims will be resolved before non-arbitrable claims, which the parties shall jointly request to be stayed pending the conclusion of arbitration.
Equitable Relief:Notwithstanding the foregoing provisions regarding arbitration, the agreement to arbitration set forth above does not limit the ability of the parties to apply for equitable relief (including, but not limited to, an injunction) to a court of competent jurisdiction, including (but not limited to) enforcing the arbitration provisions hereof. Without limiting the foregoing, you acknowledge that violations or breaches of this Agreement by you may cause the Company irreparable harm, and the parties agree that the Company may petition any court of competent jurisdiction worldwide for equitable relief (including, but not limited to, injunctive relief), without the need to post any bond, in addition to all other remedies available at law or equity. Remedies under this Agreement are cumulative and may be enforced singularly or together at any time otherwise permitted. Any requests for injunctive or declaratory relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the general public, the entitlement and extent of such relief may be litigated in a civil court of competent jurisdiction and not in arbitration; provided, that the parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
Attorney’s Fees and Costs: The prevailing party in any controversy or dispute arising hereunder shall be entitled to recovery of its reasonable attorney’s fees and costs from the controversy or dispute as provided herein.
You hereby expressly agree that during the term of this Agreement and for a period of one (1) year thereafter, you will not, directly or indirectly, attempt to or actually circumvent this Agreement or its purpose or intent.
The Company will not be liable for any failure to perform acts due to causes beyond its control (including, without limitation, electrical outage, Internet Service Provider or wireless network or other service provider downtime, power failure, fire, flood, strike, civil disturbance, terrorism, war or Acts of God). If any such circumstances occur, Company shall use commercially reasonable efforts to attempt to provide reasonable notice to you of the same. The time for Company to perform hereunder will be extended for a period of time equal to the duration of the delay or default caused thereby.
You also may be subject to additional terms and conditions that may apply when you use or receive certain TopHap services.
Amendments: Except as provided in the paragraph titled “Changes or Specialized Modifications” above, any modification, addendum, or amendment to this Agreement will not be effective unless the same is in writing and signed by a duly authorized officer of Company. This Agreement may not be modified, supplemented or amended by an electronic signature (or electronic correspondence) from Company.
The Company reserves the right to modify, supplement, or replace the terms of this Agreement. We may choose, in our sole discretion, to notify you in advance of any material changes to the Agreement before they take effect so that you can decide whether to continue using the Site. If you do not want to agree to such material changes to this Agreement before the changes take effect, you can terminate this Agreement at any time as provided herein.
Severability: If any provision of this Agreement is found by a court of competent jurisdiction or arbitrator to be illegal, void, or unenforceable, the unenforceable provision will be modified so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of the provision.
Waiver: Failure by a party to enforce any right, remedy or provision hereof will not be deemed a waiver of the same or any future enforcement of that or any other right, remedy or provision. A waiver by a party of any right, remedy or provision hereof shall only be effective if it is in an express waiver thereof.
Time Limit on Claims: Regardless of any statute or law to the contrary, any claim or cause of action that you have that arises out of or is related to the use of the Site or this Agreement must be filed by you within one (1) year after such claim or cause of action arose or be forever barred.
Notices: Unless otherwise stated herein, any notices hereunder to Company shall be in writing and be delivered by hand or mail (as specified below) to the persons and at the addresses as set forth below and shall be deemed given upon (i) delivery if by hand, (ii) five (5) business days after mailing if by certified mail, return receipt requested, or (iii) confirmation of delivery in the case of overnight or express mail. Notices to you hereunder may be provided by electronic mail to the electronic mail address provided by you to Company (and such notice shall be deemed given immediately upon transmission thereof by Company). Either party may change its address for receipt of notice to the other party by delivering notice of such change pursuant to this paragraph.
Acceptance: Your written or electronic signature is not necessary to manifest your assent or acceptance of this Agreement, and your use of the Site (as discussed herein) shall in and of itself constitute such assent and acceptance. This Agreement may be accepted and executed in the manner provided herein and such acceptance as provided herein shall constitute a valid and legally binding agreement between the parties.
Binding Authority: By agreeing to the terms and conditions of this Agreement (including, but not limited to, by a click-through or other agreement), the User is waiving, to the extent permitted under applicable law, any rights or legal requirements that require an original (non-electronic) signature or the delivery or retention of non- electronic records in order for a contract to be legally binding.
Assignment: Neither this Agreement, nor any rights or obligations hereunder, may be assigned, delegated or otherwise transferred (in whole or in part) by you without the prior express written consent of Company. Any attempted assignment, delegation or transfer by you in violation of this paragraph shall be null and voidab initio. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, executors and permitted assigns. The Company may freely assign or transfer (in whole or in part) this Agreement (including, but not limited to, any rights and obligations hereunder) with or without notice thereof to you. The Company may also substitute, by way of unilateral novation, effective upon notice to you, any third party that assumes our rights and obligations under this Agreement.
Headings: The article, section and paragraph headings used in this Agreement are for convenience only and shall not be used in interpreting or construing this Agreement. This Agreement shall be interpreted as having been drafted together by each of the parties and duly reviewed by each party with the assistance of its respective legal counsel. Uses of the words “and”, “or” and “and/or” herein, when used with respect to Site, shall be deemed to include “and” as well as “or” where the applicable context so requires.
Relationship: Nothing in this Agreement will be construed to constitute an agency, partnership, joint venture or employer-employee relationship between the parties. Neither party has the power, and will not hold itself out as having the power, to act for or in the name of, or to bind, the other party. Nothing contained in this Agreement should be construed to give either party the power to direct or control the day-to-day activities of the other party. The provisions of this Agreement are intended solely for the benefit of Company and you, and shall create no rights or obligations enforceable by any other party.
International Matters: TopHap is controlled and operated from the United States, with its principal offices located in the State of California. We make no representation that the Site is appropriate or available for use in any particular country or location. Users who choose to access the Site do so on their own initiative and are responsible for their own respective compliance with applicable local laws and regulations. The Site, including, but not limited to software from TopHap, may be further subject to United States export controls. The Site, including, but not limited to services and software from the Company, may be downloaded or otherwise exported or re-exported in violation of any applicable law, rule or regulation.
Alpha and Beta Testing: The Site may include, without limitation, applicable alpha or beta testing or other evaluation or use of products and services, features, functionality, and all components thereof (whether in final or pre-release form) that we may conduct (“Testing”). Except to the extent otherwise provided in another agreement between you and TopHap, your participation in any Testing and use of any content, information, or other materials in connection with such Testing shall be subject to this Agreement.
Our Communications with You
All communication with you will generally occur by digital or electronic means at the contact information last provided by you to the Company.
For purposes of responding to you and providing you with information and notices about your account or the Services (such as, without limitation, information about homes you might be interested in), you agree that TopHap may communicate with you, including, but not limited to, through automated systems such as an automatic telephone dialing or text messaging system, using the contact information associated with your TopHap account or TopHap Applications, including (without limitation) your device ID, email, mobile number, telephone, or the postal address you provided (if any).
Please review your Account Settings or settings on your mobile device to control what kind of messages you receive from TopHap. TopHap has no liability arising from your failure to maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about the Services. By making those or similar requests, you authorize TopHap to share your personal information including (without limitation) your contact information, home search history, favorites and saved searches, with a real estate professional. When you make such a request to TopHap you are extending an express invitation for TopHap, or another appropriate entity or person, to contact you. TopHap will only send you text messages relating to your account or your use of the Services for which you registered. TopHap will not send you text messages for telemarketing purposes without receiving your prior express consent through a separate written agreement.
For any general questions, customer service issues or non-copyright complaints, you may contact us at Hello@TopHap.com for further assistance.
We can be contacted with any questions or comments regarding this Agreement or terms and conditions regarding the Site as follows:
Attn: Legal Department
2010 Crow Canyon Place
San Ramon, CA 94583
This Agreement was last revised on January 11, 2019.
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