ARBITRATION NOTICE: UNLESS YOU ARE ACCESSING OR USING THE SERVICES ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY OR OPT OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THESE TERMS BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN THE "DISPUTE RESOLUTION FOR CONSUMERS" SECTION BELOW, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE "DISPUTE RESOLUTION FOR CONSUMERS" SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND Tophatter WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
What We Do and What We Don't Do
Tophatter is a technology services and platform provider and not a retailer. Through the Services, we offer a technology service and platform to allow Buyers and Sellers to connect. Sellers can sign up to the Services and offer their items for sale, including through an auction, by posting a Product ("Product"). Buyers can sign up to the Services if they want to bid on and/or purchase such items.
We do not sell any items ourselves. Our responsibilities under these Terms are limited solely to facilitating the availability of our technology services and platform.
We use third parties to process payments and to payout funds to Sellers. To the extent we accept, hold or transmit funds in connection with a Product, we do so as an agent of the applicable Seller.
Your access to the Services and your Product and sale of any items through the Services are at your own risk and we disclaim all warranties, express or implied, and limit our liability in these Terms.
Agreement to Terms
By using the Services, you agree to be bound by these Terms. If you do not agree to these Terms, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, "you" and "your" will refer to that company or other legal entity.
Use of the Services
You may use the Services only if you are of legal age and have the capacity to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. You may use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations.
The Services that Tophatter provides are always evolving and the form and nature of the Services that Tophatter provides may change from time to time without prior notice to you. In addition, Tophatter may need to stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally if we determine it necessary and may not be able to provide you with prior notice.
In order to use certain Services (for example, to create a Product), you will need to register with Tophatter, create a username and provide certain information about yourself as prompted by the registration form, including a valid email address. In addition, in order to sell on Tophatter we may ask you to provide details regarding yourself, your business, sales history, employees and other information that we deem relevant. We may review your application and registration forms and may approve or deny your request to create a Seller account in our sole discretion. We may also remove your ability to sell on Tophatter after you have first been approved, at our sole discretion.
You may not create more than one Seller account on Tophatter without prior approval from us. You may not use a username for the purpose of impersonating another person or entity, including staff or any other representative of Tophatter. We reserve the right to remove or reclaim inactive usernames or usernames on behalf of businesses or individuals that hold trademark or other legal claim on those usernames.
By creating an account, you agree to abide by these Terms and provide accurate information. Unless you are an agent authorized to bind another person and you are acting under their direction, you may not create an account for anyone other than yourself. We reserve the right to suspend or terminate your account if any information provided proves to be inaccurate, false, or otherwise in violation of these Terms.
You may also link your Tophatter account with your account on third-party sites, such as Facebook (such account, a "Third-Party Account"). If you provide your Third-Party Account credentials to us or otherwise link your Tophatter account with a Third-Party Account, we will extract certain personal information, such as your name and email address, and other personal or contact information that your privacy settings on such Third-Party Account permit us to access.
You are responsible for safeguarding the password that you use to access the Services. You agree to take sole responsibility for any activities or actions under your account, whether or not you have authorized such activities or actions. We encourage you to use strong passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must immediately notify Tophatter of any unauthorized use of your account, or if you have reason to believe that your password was lost, stolen, disclosed to an unauthorized third party, or otherwise may have been compromised. Tophatter is not liable for any loss or damage arising from your failure to comply with the above requirements.
No Endorsement; No Employment
We welcome all Sellers to apply to sell on Tophatter, as long as you are selling or offering to sell items that aren't illegal and comply with these Terms. However, we don't endorse any Sellers or any items they may offer for sale through the Services. Posting a Product on the Services does not mean you or your items are endorsed by us in any way. We reserve the right to conduct background checks on any seller and you agree to cooperate with us and to provide us with all information we request from you in the event that we decide to conduct a background check on you. We're not responsible for any damage or harm resulting from your communications or interactions with a Buyer. By using the Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of Buyers or other third parties will be limited to a claim against the Buyers or other third parties who caused you harm and you agree not to attempt to impose liability on us, or seek any legal remedy from us with respect to such actions or omissions.
Sellers are not employees, agents or otherwise contractors of Tophatter and we do not, in any way, supervise, direct, or control a Seller. Nothing in these Terms will be construed as establishing an employment or agency relationship between Tophatter and you or any of your personnel. You have no authority to bind Tophatter by contract or otherwise.
If you use the Services to sell items, you agree to abide by rules and policies which are described in detail on the Tophatter help section and in the Services ("Seller Rules"), which are hereby incorporated by reference. In the event of any conflict between the text in these Terms and Conditions and the Seller Rules, the Seller Rules will govern. If you do not agree to these Seller Rules, do not post Products for sale. Failure to comply with any of the Seller Rules may result in your account being suspended or banned from participating in the Services.
When you create a Product you will need to provide certain information about your item, including a description, "Buy Now" price, expected shipment date, and shipping costs (if any), warranty (if any), and any other applicable terms of the sale. It is important that such information be complete and accurate and comply with our category-specific terms, as outlined in our Product Listing Guidelines ("Product Listing Guidelines"). For additional information about how to create a Product, please see our Product Listing How-To. You agree that you are responsible for all Products you post. We want to be able to publish as many Products as possible, but we reserve the right to remove a Product for any reason in our absolute discretion.
In the event of any conflict between the text in these Terms and Conditions and the Seller Rules or Product Listing Guidelines, the conflict will be resolved in the following order of preference: (i) Product Listing Guidelines; (ii) Seller Rules; and (iii) these Terms. If you do not agree to the Product Listing Guidelines and Seller Rules, do not list items for sale. Failure to comply with any of the Product Listing Guidelines and Seller Rules may result in your account being suspended or banned from participating in the Services.
On Tophatter items can be sold either through an auction or as a "Buy Now" sale. Tophatter requires all products to have a starting bid price ("Starting Bid") of $1. Most Tophatter auctions have no reserve prices, listing a product for sale represents a binding offer to sell your item at $1 or any higher amount. If a Buyer wins the auction or elects to purchase an item through the "Buy Now" feature, they will be asked to pay the winning bid amount or the applicable "Buy Now" price (the "Sale Price"). No sale will be deemed complete unless and until Tophatter provides you with a confirmation of the sale through the Services (a "Confirmed Sale").
Products and sales made through the Services are subject to payment of certain fees, which are described on our page titled "Do I have to pay fees to sell?" (the "Fees"). The percentages and fixed amounts for the Fees for any Product or sale vary by seller and category and are available in the Active Seller Terms section of your account ("Active Terms"). If you list a Product in a category before explicitly negotiating terms for that category, the Fees will be determined by Tophatter's Default Seller Fees. Inactive fees terms will appear in your account under the 'Confirmation Required' heading. Unless otherwise stated, all Fees are quoted in U.S. Dollars. The applicable Fees will be deducted from the payment of the Sale Price paid by the Buyer prior to the funds being released to your account.
Subject to these Terms, the Services may facilitate payments to, and refunds from, Sellers. Payments and refunds facilitated by the Services are processed by third parties. If, and to the extent, Tophatter accepts, holds or transmits funds in connection with your Confirmed Sale, you agree that Tophatter does so, on your behalf, as your limited agent and you hereby appoint Tophatter as your limited agent solely for the purpose of accepting payments from, and refunding payments to, Buyers on your behalf. You agree that Tophatter may use third parties to process payments, refunds or payouts through the Services and that Tophatter has no obligation to accept, hold or transmit funds on your behalf. In accepting appointment as your limited agent, Tophatter assumes no liability for any of your acts or omissions. You agree that, in accordance with Tophatter's refund policy, the Buyer may cancel a purchase and we may refund to the Buyer the amount specified in such refund policy.
When a Buyer pays you, the applicable Fees are automatically deducted from the payment before it is paid to you. Payment will be disbursed to you twice a month, provided that the aggregate amount to be disbursed to you exceeds $5.00, on a date selected by Tophatter, after delivery of the item has been confirmed through the tracking information you provide in connection with shipment (as further described below) or, if delivery cannot be confirmed, 30 days (for US to US orders) or 60 days (for international or cross-border orders) after you mark the item as being shipped and the order shows an acceptance scan from a carrier. Additionally, if a return request is opened by the Buyer prior to the payment being disbursed, payment will be held until the case is resolved.
Tophatter uses third parties, including Dwolla, Inc. and Payoneer Inc. to originate credit transfers to your financial institution account. You expressly authorize Tophatter's service providers, Dwolla, Inc. and/or Payoneer, Inc. to originate credit transfers to your financial institution account. You also authorize Tophatter and Tophatter's payment processors to correct any mistakes in payments made by or to you, including any processing errors we discover, by debiting or crediting your financial institution account.
You agree to ship items purchased by Buyers promptly after payment, but in no event longer than the processing date you indicate in your Product. Each shipment is required to ship with a valid tracking number. For detailed shipping requirements, please review our page titled "What are the shipping requirements?".
Sellers can also purchase shipping labels through the Services. The costs of such labels will be disclosed to you at the time of purchase and will be deducted from the payment of the Sale Price by the Buyer prior to the funds being released to your account. For additional information on how to purchase postage for your sold items, please review our page titled "How do I purchase a shipping label?".
You acknowledge and agree that each Confirmed Sale will be subject to Tophatter's refund policy, available here. If a Buyer cancels a Purchase and requests a refund after payment but before the Seller has indicated that the item has been shipped ("Marked as Shipped") the refund will be issued and the Seller will be billed. In addition, if a shipment is refused, undeliverable as addressed or returned to you without being delivered, you agree to issue a full refund.
If a full refund is issued shortly after an order is paid, the Purchase is voided prior to any Fees being billed. If you issue a full refund after the payment has been disbursed to you, Tophatter will reimburse the Buyer directly and you will be invoiced for any amount disbursed to you in connection with the sale, provided that Tophatter will credit you for any Fees paid. In other words, in either case, you will not pay any Fees on the transaction excluding any fees associated with purchasing shipping labels that have been used.
If you issue a partial refund to a Buyer, we will invoice you for the refunded amount, provided that Tophatter will include a pro-rated credit for the applicable commission. For example, if it's a $12 sale and you refund the customer $2, we will credit you the commission difference between a $12 sale and a $10 sale.
You can void purchased shipping labels if they have not yet been scanned, and you will receive a refund of the applicable purchase price. However, purchased shipping labels that have been scanned as accepted cannot be voided or reimbursed. In other words, if an order is refunded after delivery, you will not receive a credit for the shipping label fees.
Notwithstanding the foregoing, if you purchase a shipping label from Tophatter and receive a package that is returned to sender due to a bad address, Tophatter may reimburse you in its sole discretion. Please contact customer support for more information.
As used in these Terms, "Tax" or "Taxes" mean sales taxes, value added taxes (VAT), goods and services taxes (GST), and other similar municipal, state and federal direct, indirect or other withholding and personal or corporate income taxes imposed on a Seller or on amounts collected from Buyers.
As a Seller, you have to determine your own Tax reporting and payment requirements. You can do this in consultation with a tax advisor if you like. We do not and cannot offer Tax-related advice to any Sellers – we leave that to the experts! Please note that you are responsible for determining any applicable Taxes on your items or on the amounts collected by us on your behalf. We recommend considering potential Tax implications in selling on Tophatter as you are responsible for accounting for all applicable Taxes from the Sale Price. We are not responsible for determining the amount of, or invoicing Buyers for, Taxes.
You agree to pay the applicable Fees, to assume full responsibility for the content of your Product and your items offered for sale. You agree to display information accurately about your Products, to ship items purchased by Buyers promptly after payment, to adhere to all Product Listing Guidelines and to respond to enquiries from Tophatter in a timely manner. You will not list any items that are prohibited by law or are otherwise listed as prohibited in our article What can't be sold on Tophatter. You will not engage with any bidders in manipulative or deceptive bidding, including shill bidding, as described in the Tophatter help section. You will not transfer your Tophatter account, including feedback and your user ID, to any other party without our consent.
Liability and Disputes
You understand and agree that we do not act as your insurer, broker, contracting agent or other representative, other than as noted in the Payments section above. If a Buyer purchases an item from you, any contract that you enter into with the Buyer, written or oral, will be between you and the Buyer only. You acknowledge and agree that you, and not us, will be responsible for performing the obligations of any contracts with Buyers, and we are not a party to such contracts and disclaim all liability arising from or related to such contracts.
Tophatter does not have any control over or liability for the quality, safety, legality, descriptions, photos, or other aspect of the items listed for sale, nor does Tophatter have any control over or liability for the accuracy, truthfulness, quality, or other aspect of the materials and information associated with Products. Tophatter is not liable or responsible for defective items. If an item sold on Tophatter is delivered in a defective condition, a Buyer's sole remedy is with the Seller.
If a Buyer has any concerns about you or your items, they may contact you through the Services or contact Tophatter, which will reach out to you, to try and resolve their concerns. On the same note, if you have any concerns about a Buyer's purchase, you should contact Tophatter.
Without limiting the foregoing, Tophatter reserves the right in its sole discretion to resolve disputes between Buyers and Sellers. You agree that Tophatter has the right to make the final decision in any dispute where Tophatter chooses to intervene. If we resolve a dispute in the Buyer's favor, we may, but are not required to, issue a refund for up to the full cost of the item in dispute, including shipping, and require the Seller to reimburse us for the full amount refunded, including, in some cases, shipping costs. The foregoing paragraph states Tophatter's entire liability and obligation to Buyers and Sellers in connection with any dispute between such parties.
Users may submit feedback information regarding Sellers and Buyers that use the Services. You may only use the rating and feedback features for the bona-fide purpose of submitting feedback regarding the experience you had. Any other use of the feedback system is prohibited. You may not threaten to withhold refunds in order to avoid negative feedback or receive benefits beyond those to which you are entitled and you may not submit feedback for the purpose of manipulating another user's rating. Feedback information submitted by a user may be made available through the Services to other users.
Special Privacy Terms for European Union Residents
As part of the Services we provide, you may (if enabled) receive notifications, alerts or other types of messages via text message, email or the messaging functionality provided by the Services ("Messages"). You have control over the Messages settings, and can opt in or out of these Messages (with the exception of infrequent, important service announcements and administrative messages) either through your account or by following the unsubscribe instructions provided in the e-mail you receive. Please be aware that third-party messaging fees may occur for some of the Messages depending on the message plan you have with your wireless carrier.
If you provide your cellular phone number and agree to receive communications from Tophatter, you specifically authorize Tophatter to send text messages or calls to your phone. You are not required to consent to receive text messages or calls as a condition of using the Services and may opt out of such messages. You can opt out of receiving text messages through your account settings.
For purposes of these Terms: (i) "Content" means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) "User Content" means any Content that Buyers and Sellers (including you) provide to be made available through the Services (including Content associated with your Products). Content includes without limitation User Content.
All Content is the sole responsibility of the person who originated such Content, including its legality, reliability, and appropriateness. We do not monitor or control the Content posted via the Services, and we cannot take responsibility for such Content. Any use of or reliance on any Content or materials posted via the Services or obtained by you through the Services is at your own risk.
We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications posted via the Services. You understand that by using the Services, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive. Under no circumstances will Tophatter be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Services or broadcast elsewhere.
Tophatter may offer a catalog of items, which may include photos, descriptions, and other information provided by third parties. Tophatter cannot guarantee that the information contained in such catalog will be accurate or up to date, and you agree not to hold such third party Content providers, or Tophatter, responsible for any inaccuracies.
Subject to your compliance with these Terms, Tophatter grants you a limited, non-exclusive, non-transferable, non-sublicensable license to access and view the Content solely in connection with your permitted use of the Services.
Your User Content
Your User Content will be viewable by other users of the Services. You should only make available information or provide User Content that you are comfortable sharing with others under these Terms. You are responsible for your use of the Services, for any User Content you provide, and for any consequences thereof, including the use of your User Content by other users and our third party partners. Any Content you provide must comply with the Seller Rules, as described in the help section (which are hereby incorporated by reference and are part of these Terms and describe what content is prohibited on the Services).
Tophatter is not responsible or liable for any use of your User Content by Tophatter in accordance with these Terms. You represent and warrant that: (i) you have all the rights, power and authority necessary (you own it or have the right to use it) to grant the rights granted herein to any User Content submitted; and (ii) your User Content or your use and provision of your User Content to be made available through the Services does not violate any privacy rights, publicity rights, intellectual property rights, contract rights, or any other rights of any person or entity or result in the violation of any applicable law or regulation.
You may request removal of your User Content from the Services at any time by specifically deleting it or sending a request to customer support. Some User Content cannot be deleted entirely as it may be needed for tax or other purposes by either Tophatter or another user. If you choose to remove your User Content or cancel your account, your User Content will be removed from public viewing as soon as is practical, (although back-up copies may survive for archival and record keeping purposes), provided, however, in certain instances, copies of your User Content may continue to exist in published or recorded form when it has been retransmitted, redistributed, or otherwise. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any User Content on the Services. We retain the right to create limits on use and storage at our sole discretion at any time with or without notice.
For all authorized users irrespective of country of residence, by submitting, posting or displaying User Content on or through the Services, you grant us and our third-party service providers and partners a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such User Content in any and all media or distribution methods (now known or later developed) in connection with the Services, including for commercial, advertising and promotional purposes relating to the Services or your items. You agree that this license includes the right for us to make such User Content available to other users of the Services, who may also use your User Content subject to these Terms to take advantage of the Services. No compensation will be paid with respect to the User Content that you submit, post, transmit or otherwise make available through the Services, even if used by other companies, organizations or individuals who partner with Tophatter.
We may need to modify or adapt your User Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your User Content as are necessary to conform and adapt that User Content to any requirements or limitations of any networks, devices, services or media and you hereby grant us the rights to do so. Tophatter claims no ownership of any User Content submitted, posted or displayed by you on or through the Services. You retain any and all of your rights to any User Content you submit, post or display on or through the Services, subject to the exceptions noted herein, and you are solely responsible for protecting those rights.
Tophatter Ownership Rights
All right, title, and interest in and to the Services (excluding your User Content), including all associated intellectual property rights, are and will remain the exclusive property of Tophatter and its licensors. The Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. Nothing in the Terms gives you a right to use the Tophatter name or any of the Tophatter trademarks, logos, domain names, or other distinctive brand features. You may use the Tophatter name or any of the Tophatter trademarks, logos, domain names, or other distinctive brand features only in the event Tophatter grants you the right to do so in a separate written agreement. You shall not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, create derivative works from, or otherwise exploit any Content or third party submissions or other proprietary rights not owned by you, (i) without the consent of the respective owners or other valid right, and (ii) in any way that violates the rights of Tophatter or any third party. You may not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Services, including any Content. Any feedback, comments, or suggestions you may provide regarding Tophatter or the Services are entirely voluntary and are the sole and exclusive property of Tophatter. You hereby irrevocably assign to us all of your right, title and interest in and to such feedback, comments or suggestions, and Tophatter is free to use them as we see fit and without any obligation to you.
Restrictions on Content and Use of the Services
We reserve the right at all times (but are not obligated to) to remove or refuse to distribute any Content on the Services, which violates these Terms or the Seller Rules. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce the Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Tophatter, its users and the public.
Unless you have been specifically permitted to do so in a separate written agreement with Tophatter and except as expressly permitted in these Terms, you may not reproduce, modify or prepare derivative works based upon, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the Content (except your User Content) or Services. You may not copy, modify, decompile, reverse-engineer, or disassemble the code used to generate web pages on the Services. You may not harvest usernames, addresses, email addresses, or other personal information for any purpose.
You may not do any of the following while accessing or using the Services:
- post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; or (v) promotes illegal or harmful activities or substances;
- send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- impersonate or misrepresent your affiliation with any person or entity;
- access, tamper with, or use non-public areas of the Services, Tophatter's computer systems, or the technical delivery systems of Tophatter's providers;
- probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures;
- access or search or attempt to access or search the Services by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by Tophatter unless you have been specifically allowed to do so in a separate agreement with Tophatter;
- forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
- interfere with, or disrupt, (or attempt to do so), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Services, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Services;
- avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Tophatter or any of Tophatter's providers or any other third party (including another user) to protect the Services or Content;
- use, display, mirror or frame the Services, any individual element within the Services, or the layout and design of any page or form contained on a page, without Tophatter's express written consent;
- violate any applicable law or regulation; or
- encourage or enable any other individual to do any of the foregoing.
Tophatter respects copyright law and expects its users to do the same. It is the policy of Tophatter to disable and/or terminate, in appropriate circumstances, the accounts of users who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Tophatter's Copyright Policy at https://tophatter.com/copyright for further information.
We may suspend or terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you, including, without limitation, if you violate the letter or spirit of any of these Terms, or otherwise create risk or possible legal exposure for us. You may cancel your Account at any time by logging into your account and canceling.
Upon any termination, discontinuation or cancellation of Services or your Account, the following provisions will survive: ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.
Unless Tophatter otherwise notifies you in writing, you agree to fulfill any Confirmed Sales that have not yet been shipped upon termination. Any payment for such Confirmed Sales will be subject to delivery being confirmed.
The Services are Available "AS-IS"
Your access to and use of the Services or any Content is at your own risk. You understand and agree that the Services are provided to you on an "AS IS" and "AS AVAILABLE" basis. Without limiting the foregoing, Tophatter DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. We make no warranty and disclaim all responsibility and liability for the completeness, accuracy, availability, timeliness, security or reliability of the Services or any Content thereon. We make no guarantee as to the duration or manner in which items appear on Tophatter, whether in our catalog, at auction, or otherwise. Tophatter is not responsible or liable for any harm to your computer system, loss of data, glitches, bugs, errors, delays, disruptions, or other harm that results from your access to or use of, inability to access or use, the Services, or any Content. You agree that Tophatter is not liable for any damage or losses resulting directly or indirectly from any suspension of your account. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from Tophatter or through the Services, will create any warranty not expressly made herein.
You agree to defend, indemnify, and hold harmless Tophatter and its partners, and their officers, directors, employees and agents, from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with: (i) your access to or use of the Services, (ii) your violation of these Terms or any Content posted, published, transmitted or otherwise provided by you or on your behalf; and (iii) any items sold by you via the Services.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TOPHATTER AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS ARE NOT LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICES; (iv) ANY ITEMS SOLD OR PURCHASED THROUGH THE SERVICES; OR (v) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT TOPHATTER HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. UNDER NO CIRCUMSTANCES WILL TOPHATTER'S TOTAL LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY EXCEED THE AMOUNT YOU PAID TOPHATTER FOR THE USE OF THE SERVICES DURING THE TWELVE MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY, IF YOU HAVE MADE ANY PAYMENTS TO TOPHATTER, OR $50 IF YOU HAVE NOT MADE ANY PAYMENTS TO TOPHATTER.
Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you.
Waiver & Severability
The failure of Tophatter to enforce any right or provision of these Terms does not constitute a waiver of such right or provision. In the event that any provision of these Terms is held to be invalid or unenforceable (either by an arbitrator appointed pursuant to the terms of the "Dispute Resolution for Consumers" section below or by a court of competent jurisdiction, if you are accessing and using the Services on behalf of a company or other legal entity or timely opt out of arbitration as set forth below), the remaining provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without Tophatter's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Tophatter may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Tophatter to you under these Terms, including those regarding modifications to these Terms, will be given by Tophatter: (i) via email; or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Controlling Law & Jurisdiction
These Terms and any action related thereto are governed by the laws of the State of California, without regard to or application of its conflict of law provisions or your state or country of residence.
Dispute Resolution for Commercial Entities
If you are accessing and using the Services on behalf of a company or other legal entity, any dispute arising from or relating to the subject matter of these Terms shall be finally settled by binding arbitration in San Francisco County, California, in English. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and Mediation Procedures (the "AAA Commercial Rules") then in effect. (The AAA Commercial Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this "Dispute Resolution for Commercial Entities" section.
Dispute Resolution for Consumers
Agreement to Arbitrate
If you are accessing and using the Services as an individual, you and Tophatter agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, "Disputes") will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an "IP Protection Action"). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Tophatter with written notice of your desire to do so by email a email@example.com or regular mail at Tophatter Inc., 185 Berry St., Suite 2400, San Francisco CA 94107 within thirty (30) days following the date you first agree to these Terms (such notice, an "Arbitration Opt-out Notice"). If you don't provide Tophatter with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Tophatter with an Arbitration Opt-out Notice, will be the state and federal courts located in San Francisco County, California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Tophatter with an Arbitration Opt-out Notice, you acknowledge and agree that you and Tophatter are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Tophatter otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution for Consumers" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution for Consumers" section will survive any termination of these Terms.
The arbitration will be administered by the AAA in accordance with the Consumer Arbitration Rules (the "AAA Consumer Rules") then in effect, except as modified by this Section 18.3. (The AAA Consumer Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this "Dispute Resolution for Consumers" section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Consumer Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA's roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Consumer Rules.
Arbitration Location and Procedure
Unless you and Tophatter otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Tophatter submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Consumer Rules. Subject to the AAA Consumer Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Consumer Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award of damages must be consistent with the terms of "Limitation of Liability" section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. Tophatter will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys' fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Consumer Rules. However, if your claim for damages does not exceed $75,000, Tophatter will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provision regarding changes to these Terms in the "Entire Agreement" section below, if Tophatter changes this "Dispute Resolution for Consumers" section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the "Last Updated" date above or in the date of Tophatter's email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Tophatter in accordance with the provisions of this "Dispute Resolution for Consumers" section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
These Terms, the Seller Rules and the Category Terms are the entire and exclusive agreement between Tophatter and you regarding the Services, and these Terms supersede and replace any prior agreements between Tophatter and you regarding the Services. These Terms apply only to Tophatter and you. These Terms are not intended to, and shall not, create any third party beneficiary rights, except as expressly provided in these Terms.
We may revise these Terms from time to time. If we make any material changes to these Terms, we will notify you of such changes by posting them on the Tophatter website or by sending you an email or other notification, and we will indicate when such changes will become effective. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at 800-952-5210.
These Services are operated and provided by Tophatter Inc., 185 Berry St., Suite 2400, San Francisco CA 94107. If you have any questions about these Terms, please contact customer support.