PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY.
By creating a Spot, you are agreeing to be bound by the terms and conditions below and our Code of Conduct. These terms and conditions and our Code of Conduct together form the “Agreement”.
The Agreement is a legally enforceable contract between TheTopSpotOnline, LLC (“TheTopSpotOnline”, “we”, “our” or “us”) and “you”, the company or person named in the registration. If you do not want to be bound by the Agreement, you must not register a spot.
1. Creating A Spot
· We are members (“Affiliate”) of numerous affiliate marketing networks which enables us to promote online retailers (“Merchants”) and their products in return for a commission.
· A Spot at TheTopSpotOnline.com is webpage with a unique name created by a registered user. The creator of a Spot is considered the Owner of that Spot.
· Once you create a Spot at TheTopSpotOnline.com you may choose to promote any of our provided affiliate links, promote links of your own, promote products or deals of your own or any subjects, ideas or websites of your choosing with the following limitations:
o It cannot infringe any intellectual property rights;
o No libelous or defamatory content;
o No obscene or pornographic content;
o No abusive content;
o No violent or bigoted content;
o No dishonest or fraudulent content;
o Nothing in violation of any law
o Nothing we may deem otherwise objectionable.
· We reserve the right to remove any Spot created for any reason at any time.
· TheTopSpotOnline.com depends on the use of internet cookies and other technology for tracking website users and recording information (“Cookies”). Cookies will be placed on any devices you use to access our websites.
2. As a Spot owner you will be given access to hyperlinks to the websites of Merchants (“Merchant Links”). You will also be given access to the promotional materials and trademarks of Merchants (together with the Merchant Links, the “Materials”). As long as you comply with the terms of this Agreement, and any terms of a particular Merchant, you can place the Materials wherever you like on your Spot.
· A “Transaction” is made when a visitor to your Spot (“Visitor”) clicks on a TheTopSpotOnline provided Merchant Link and is directed to the Merchant’s website where he or she buys something.
· If a Visitor clicks on a TheTopSpotOnlineprovided Merchant Link and does not buy anything from the Merchant, but then subsequently returns to the Merchant’s website directly and buys something, this may still count as a Transaction. This will depend on whether:
o another Spot Owner or Affiliate has more recently directed that Visitor to that Merchant’s website; and
o how much time has passed since you directed that Visitor to that Merchant’s website.
· In some cases, a Transaction will also be made when a Visitor clicks on a TheTopSpotOnline provided Merchant Link and is directed to the Merchant’s website where he or she takes some other action, like filling in a form.
· You will earn commission for any Transactions which are validated by the Merchant. This means the Merchant has told us that, for example, the Transaction was not generated illegitimately and the item purchased has not been returned. It is up to the Merchant to decide whether or not a Transaction is valid. If you do not agree with a Merchant’s criteria for validation, you should deal with other Merchants instead.
· If you are paid any commissions for Transactions which are not valid, or should not be valid, or which have been paid by accident, you must return those commissions to us as soon as you become aware that they should not have been paid.
4. Intellectual Property Rights
· As a Spot Owner you may use Materials (TheTopSpotOnline provided links) with these provided permissions.
o you will not claim or receive any right to use the Materials other than the permissions set out in this Agreement and you will never own any of the Materials;
o you can only use the Materials on your Spot in your capacity as a Spot Owner in accordance with the terms of this Agreement.
· This is not any kind of assignment of ownership to you of any of the Materials, Nor is this a sub-license to use the Materials outside of TheTopSpotOnline.com
5. Spot Owner Obligations
· You must always comply with our Code of Conduct. Our Code of Conduct will be updated from time to time, and only we can decide which changes will be made. If we update the Code of Conduct we may let you know by posting information on the Intranet, but it is your responsibility to check our Site for any changes to the Code of Conduct.
6. Commissions And Payments
· Merchants will use the Intranet to set out how much commission is paid for each validated Transaction. Merchants are free to decide how much commission they will pay for each validated Transaction.
· If you are due to be paid commissions, we will issue you with a statement setting out all of the commissions you have earned. Each statement covers a period of 4 weeks, and will be issued 2 weeks after the end of the period it covers. This means, for example, that a statement covering a month will be issued to you at the middle of the next month. The statements we provide are definitive when it comes to determining what commissions have been earned.
· We will try to pay any commissions to you within 30 days of our receipt of any payments owed to us in respect of those commissions by the relevant Merchant. We may pay commissions earlier, but whether or not we do so is entirely up to us (even if we have previously paid commissions early in respect of a particular Merchant).
· Commissions will be paid to you in US Dollars.
· If you earn commissions from a Merchant, and that Merchant does not pay us what it owes us in relation to those commissions, we don’t have to pay those commissions to you until we are paid by the Merchant.
· We will not make any payments which are less than $50 (called the “Minimum Threshold”). If you have total commissions which are less than the Minimum Threshold, they will be held to your account. When the total amount of commissions held to your account reaches the Minimum Threshold, those commissions will become payable.
· If we suspect you have generated commissions in breach of this Agreement you will, by way of future assignment, assign to us all of your rights and ownership in those commissions. This includes any commissions you have already been paid, which you will repay to us when we ask
· If we can’t get in contact with you using the contact details set out in your application, and:
o we cannot pay you commissions because you have provided incomplete or incorrect payment information; or
o you don’t log on to our website for 12 months;
you waive your right to be paid those commissions and you assign (way of future assignment) all of your rights and ownership in any commissions which we are holding to your account.
· If we are late paying you commissions, you cannot terminate this Agreement on the basis that the delay constitutes a breach of this Agreement.
· You will not receive any interest on commissions held to your account.
7. Representations And Warranties
· By entering this Agreement, you are making the following promises to us (known as “Warranties”). You warrant that:
o you have full power and authority to enter into this Agreement;
o you are and will be responsible for compliance with all applicable laws, rules and regulations related to your website and the performance of your obligations under this Agreement;
· any information on your Spot regarding goods and services for sale by any Merchant, including pricing, discounts, promotions and description is (so far as you are aware) accurate, up to date, complete and non-misleading;
· you own or have the right to use any content on your Spot and none of that content infringes the intellectual property rights of any third party; and
· you will not do anything or omit to do anything which would cause us to be in breach of our own obligations under the DPA or the Regulations.
· If you breach any of the terms of this Agreement, including any of the Warranties, you will indemnify us against any losses or liabilities (including legal fees) we suffer which are arising in connection with that breach.
8. Disclosure of Information and Confidentiality
· “Confidential Information” includes any information which is disclosed to you and marked or described as confidential. Confidential Information also includes any information disclosed to you and which ought reasonably be treated as being confidential. Know-how, information about Merchants, data and software are all examples of Confidential Information. If you are unclear on whether any information disclosed to you is Confidential Information, you should ask us whether or not it can be disclosed.
· Confidential Information does not include any information which is publicly available, unless it has become publicly available because you have disclosed it. Confidential Information also does not include any information which you receive from a third party, unless that third party is breaching an obligation of confidentiality by disclosing it to you.
· You must not disclose any Confidential Information to any third parties and you must keep take all reasonable steps and precautions to prevent disclosure of Confidential Information. You must not use Confidential Information for any purpose other than enjoying your rights or fulfilling your obligations under this Agreement.
· The disclosure of our Confidential Information may cause us harm which cannot be repaired, or may cause us losses which cannot be recovered or compensated. Therefore, if Confidential Information is disclosed in breach of this Agreement, or if disclosure of Confidential Information is threatened, you agree that we can obtain an injunction against you to prevent disclosure. Our right to an injunction is in addition to any other rights we may have to protect our Confidential Information. If the court grants us an injunction, you must pay all of our legal costs of applying for the injunction.
9. Your Information
· By entering this Agreement, you consent to us publishing your name on our websites. You also consent to us publishing the information you provide to us on our websites, unless you notify us that that information is confidential or that information ought reasonably be treated as being confidential.
10. Disclaimer And Limitation of Liability
· THE WEBSITE AND ANY SERVICES OR SOFTWARE WE PROVIDE, AND THE USE AND RESULTS OF ANY OF THEM, ARE PROVIDED "AS IS". WE EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES OF ANY KIND (WHETHER EXPRESS, IMPLIED OR STATUTORY), RELATING TO THE WEBSITE AND ANY SERVICES OR SOFTWARE WE PROVIDE TO YOU. THIS INCLUDES IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. WE ALSO DISCLAIM ANY WARRANTY THAT: THE WEBSITE AND ANY SERVICES OR SOFTWARE WE PROVIDE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS; THAT THE SECURITY METHODS EMPLOYED WILL BE SUFFICIENT; OR REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY. IN PARTICULAR, WE MAKE NO WARRANTY THAT OUR METHODS AND SYSTEMS FOR TRACKING TRANSACTIONS WILL BE UNINTERRUPTED OR ERROR-FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. NO WARRANTY IS MADE AS TO THE ACTIONS OF ANY MERCHANTS.
· We will not be liable to you for the: loss of profits; loss of business; depletion of goodwill and/or similar losses; loss of anticipated savings; loss of goods; loss of contract; loss of use; loss of corruption of data or information; any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; or the actions or omissions of any Merchants
· Our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Agreement shall be limited to the amount of the commissions actually paid to you under the Agreement in the twelve (12) months before the date on which the claim arose.
· We are not limiting any of our liability for death or personal injury, or for liability incurred as a result of fraud or fraudulent misrepresentations.
11. Reservation Of Rights
· If we want, we can change, suspend or discontinue any of the services or software of we provide to you, any part of the Intranet and any of our websites.
· If a Visitor is directed to a Merchant’s website, but that website is no longer operating, we can direct the Visitor to another website. This might mean you earn a different commission.
· We keep for ourselves any of our intellectual property rights which are not expressly granted to you under this Agreement.
· If we suspect you are in breach of this Agreement (which includes the Code of Conduct), we can take one or some of the following actions:
o suspend you from the Website;
o remove or disable any Merchant Links placed on any of your Spots; and
o withhold payment of any commissions held in your account
12. Term and Termination
· The Agreement commences when you create a Spot. The Agreement will stay in force until it is terminated in accordance with these terms and conditions. Either you or us can terminate this Agreement by giving the other party 30 Days written notice.
· Either you or us can terminate this Agreement immediately by giving the other party written notice if the other party:
o is, or likely to become, insolvent or bankrupt
o is unable to pay its debts or negotiates with its creditors; or
o Appoints an administrator or other insolvency practitioner.
· If this Agreement is terminated, neither party will be obligated to pay the other party for any losses or costs which result from such termination.
13. Consequences Of Termination
· If this Agreement is terminated for any reason:
· all rights and liabilities which exist before the date of termination shall not be effected;
· all licenses granted in this Agreement will terminate and you must immediately stop using the Materials;
· you will not receive any commissions which are earned after the date of termination.
· Notices under this agreement must be given in writing and sent to the addresses set out below:
TheTopSpotOnline, LLC: P.O. Box 432 Arlington, TN 38002
· To you: the address and contact details and email address sent out in your application.
· The Agreement will be interpreted so as to give effect to the intention of the parties and the spirit of the Agreement when taken as a whole.
· In this Agreement, where any items are listed or given as examples, the list and examples are not definitive. Therefore, items similar to the listed items or examples may also be included. Where we use the singular tense in this Agreement, we are also referring to the plural tense (and vice versa). When we refer to an individual, we are also referring to companies and other incorporations.
· This Agreement is personal to you. You may not assign or transfer any of your rights or obligations unless we agree in writing. We can assign or transfer any of our rights or obligations as long as we give you notice.
· If you ever owe us money, we can deduct that money from any commissions we owe you.
· Neither party will be liable under the Agreement if it is prevented from performing its obligations by anything beyond its reasonable control.
· This Agreement will not constitute a partnership or joint venture of any kind between you and us, nor will it constitute any party the agent of another party for any purpose. You have no authority bind us and we have no authority to bind you.
· Third parties don’t have any rights under this Agreement.
· The Agreement is the whole agreement between you and us. Any older agreements between you and us relating this subject matter are replaced by this agreement. Any terms or representations which are not included in this Agreement are not enforceable, but we are not limiting our liability for fraud or fraudulent misrepresentation.
· You and we irrevocably agree that the courts of United States will have exclusive jurisdiction to settle any dispute that arises out of this Agreement.