Terms of Service
The following describes the terms and conditions on which Interactiv Corporation offers you access to our site. These terms and conditions (Terms and Conditions) describe the policies, terms, and conditions applicable to your use of our services (Services) at the toplevel.pro Web Site (the Site).
Please read these Terms and Conditions carefully. Your use of our services indicates that you accept these Terms and Conditions. You may not use our services if you do not accept these Terms and Conditions.
Interactiv Corporation hereinafter called Owner, reserves the right to make changes to this Site and these Terms and Conditions at any time without prior notice. This Agreement may not otherwise be amended except in a writing signed by Owner.
1. Ownership of Site
The Site is owned by Interactiv Corporation, a corporation organized and existing under the laws of the state of California, with its principal office located at P.O. Box 613104, San Jose, CA 95161. Owner owns or licenses from third parties all information and other content as well as all of the software and technology related to the Site, including, but not limited to, all HTML code, Java applets, graphics, icons, wallpaper, characters, artwork and text related to or contained in the Site (collectively call the Technology). You may not use the Site or copy, transmit, publish, modify, distribute, perform, create derivative works from or reverse engineer any of the Technology except as expressly permitted by these Terms and Conditions. Owner may, at any time and in its sole discretion, add, delete or change the Site and any of the Services provided by or through the Site without notice.
2. Eligibility To Use of Our Service
Our Services are available only to users who can form legally binding contracts under the laws of the United States of America and the country, state and/or territory in which such user resides. Without limiting the foregoing, our Services is not available to (a) minors, (b) users whose use of our Services has been temporarily or indefinitely suspended, (c) nationals or residents of any country restricted by the United States Government, or (d) any party identified on the list of Specially Designated Nationals maintained by the United States Treasury Department or the Table of Denial Orders maintained by the United States Department of Commerce, as such restricted countries, lists and orders may be amended or modified from time to time by the United States Government. If you do not qualify, please do not use our Services.
3. The Site Is Only a Venue.
3.1. Online Auction. Although the Site may be commonly referred to as an online auction web site, it is important to realize that toplevel.pro is not a traditional “auctioneer.” Instead, the Site acts as a venue to allow anyone to offer, sell, and buy products in the categories listed on the Site, at anytime, in a variety of formats, including a fixed price format and an auction-style format commonly referred to as an “online auction.” TopLevel.Pro is not involved in the actual transaction between buyers and sellers. As a result, toplevel.pro has no control over the quality, safety or legality of the items advertised, the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to buy items. toplevel.pro cannot ensure that a buyer or seller will actually complete a transaction.
3.2. Safe Trading. Because user authentication on the Internet is difficult, toplevel.pro cannot and does not confirm each user’s purported identity. You assume all risk that you may be dealing with foreign national, underage persons or persons acting under false pretense. You may wish to consider using a third party escrow service or services that provide additional user verification.
3.3. Release. Because toplevel.pro is not involved in the actual transaction between buyers and sellers, in the event that you have a dispute with one or more users, you release toplevel.pro (and its officers, directors, agents, subsidiaries and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
3.4. Information Control. toplevel.pro does not control the information provided by other users which is made available through our system. You may find other user’s information to be offensive, harmful, inaccurate, or deceptive. Please use caution, common sense, and practice safe trading when using our Site. Please note that there are also risks of dealing with underage persons or people acting under false pretense. Additionally, there may also be risks of dealing with international trade and foreign nationals.
4. Bidding and Buying.
If you are the winning bidder at the end of an auction (meeting any applicable minimum bid or reserve requirements) and your bid is accepted by the buyer (seller in the case of a posted bid auction), you are obligated to complete the transaction, unless the transaction is prohibited by law or by these Terms and Conditions. By bidding on an item you agree to be bound by the conditions of sale included in the item’s description so long as those conditions of sale are not in violation of these Terms and Conditions or unlawful. Bids are not retractable except in exceptional circumstances such as when the seller materially changes the item’s description after you bid, a clear typographical error is made, or you cannot authenticate the seller’s identity. Bidders may not bid in a way that pulls other bidders to their maximum bid, retract the high bid, and then re-bid at a small increment above the legitimate high bidder (“bid siphoning”).
5. Listing and Selling.
5.1. Listing Description. You must be legally able to sell the item(s) you list for sale on the Site. You must describe your item and all terms of sale on the listing page of the Site. Your listings may include text descriptions, graphics, pictures and other content relevant to the sale of that item. All listed items must be listed in an appropriate category. All uniform price and discriminative price auction items must be identical (not limited to the size, color, make, and model).
5.2. Binding Bids. If you receive at least one bid at or above your stated minimum price (or in the case of reserve auctions, at or above the reserve price), you are obligated to complete the transaction with the highest bidder upon the auction’s completion, unless there is an exceptional circumstance, such as: (a) the buyer fails to meet the terms of your listing (such as payment method), or (b) you cannot authenticate the buyer’s identity (seller’s identity in the case of a posted bid auction).
5.3. Fraud. Without limiting any other remedies, toplevel.pro may suspend or terminate your account if it suspects that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with the Site.
5.4. Manipulation. Neither you, bidders nor sellers may manipulate the price of any item nor may you interfere with other user’s listings or auctions. Such prohibited manipulation includes, without limitation, sending emails to bidders in a currently open auction being run by a different buyer, bid siphoning, or use of any alias or a third party to place bids on an item listed for sale by you on the Site.
6. Your Information.
6.1. Definition. “Your Information” is defined as any information you provide to toplevel.pro or other users in the registration, bidding or listing process, in any public message area, or through any email feature. You are solely responsible for Your Information, and toplevel.pro acts as a passive conduit for your online distribution and publication of Your Information. toplevel.pro, however, may take any action with respect to Your Information as it deems necessary or appropriate if __toplevel.pro believes that any part of Your Information may create liability for __toplevel.pro or may cause _toplevel.pro to lose (in whole or in part) the services of any of its suppliers.
6.2. Restrictions. Your Information (or any items listed): (a) shall not be false, inaccurate or misleading; (b) shall not be fraudulent or involve the sale of counterfeit or stolen items; (c) shall not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (d) shall not violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, antidiscrimination or false advertising); (e) shall not be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (f) shall not be obscene or contain child pornography; (g) shall not contain any viruses, Trojan horses, worms, time bombs, cancelbots, Easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) shall not create liability for toplevel.pro or cause _toplevel.pro to lose (in whole or in part) the services of our ISPs or other suppliers; and (i) shall not link directly or indirectly to or include descriptions of goods or services that: (aa) are prohibited under these Terms and Conditions; (bb) are identical to other items you have up for auction but are priced lower than your item’s reserve or minimum bid amount; (cc) are concurrently listed for sale on a web site other than the Site; or (dd) you do not have a right to link to or include. Furthermore, you may not list any item on our Site (or consummate any transaction that was initiated using our Services) that, by paying to _toplevel.pro the listing fee or the final value fee, could cause toplevel.pro to violate any applicable law, statute, ordinance or regulation, or that violates any applicable United States laws or the laws of the country, state or territory in which either you or your trading partner reside or to which the item being sold is to be shipped.
Without limiting other remedies, toplevel.pro may immediately without notice issue a warning, temporarily suspend, indefinitely suspend or terminate your membership and refuse to provide our Services to you: (a) if you breach these Terms and Conditions or the documents it incorporates by reference; (b) if toplevel.pro is unable to verify or authenticate any information you provide to toplevel.pro; or (c) if toplevel.pro believes that your actions may cause legal liability for you, our users or toplevel.pro. toplevel.pro shall not be obligated to escalate its remedies under this provision and may immediately and without notice terminate your use of the Site.
8. Access and Interference.
The Site contains robot exclusion headers and you agree that you will not use any robot, spider, other automatic device, or manual process to monitor or copy our web pages or the content contained herein without the prior expressed written permission of toplevel.pro. [You agree that you will not use any device, software or routine to bypass our robot exclusion headers, or to interfere or attempt to interfere with the proper working of the Site or any auction being conducted on the Site.] You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure. Much of the information on our Site is updated on a real time basis and is proprietary or is licensed to __toplevel.pro by our users or third parties. You agree that you will not copy, reproduce, alter, modify, create derivative works, or publicly display any content (except for Your Information) from our Site without the prior expressed written permission of _toplevel.pro or the appropriate third party.
9. Downloaded Content.
If any downloaded content (the “Downloaded Content”) is provided to you by the Site (i.e., Java applets, Active-X controls, etc.), you may use such Downloaded Content only as part of your use of the Site in compliance with these Terms and Conditions. You may not copy, reproduce, publish, distribute, display, or otherwise transfer, or modify, adapt, perform, license, sell, or create derivative works from, or decompile, disassemble, or otherwise reverse engineer, any Downloaded Content without the prior express written consent of toplevel.pro.
10. User Submissions.
toplevel.pro enjoys hearing from users of the Site and welcomes any feedback and/or input that users may have. Nevertheless, in order to avoid any disputes, toplevel.pro asks that users not send any comments unless the user agrees that toplevel.pro will be licensed to use the comments in any way or manner that it chooses. Specifically, with respect to any design, idea, concept, suggestion, or other information users communicate to _toplevel.pro, whether electronically to the Site or otherwise (collectively the “Submissions”), users automatically, and without further action or consideration, hereby grant, and agree to grant, to __toplevel.pro a royalty-free, perpetual, irrevocable, non-exclusive license to, for any and all purposes, use, reproduce, publish, display, distribute, transfer, modify, license, sell, and create derivative works from such Submissions (or any part of such Submissions), in whole or in part and in any form, medium, or technology existing now or in the future.
11. Copyright And Trademark Notices.
toplevel.pro and/or the licensors of toplevel.pro own the copyrights to all aspects of the Site. “_toplevel.pro”, “toplevel.pro Auction Source” and all other names and designations used by __toplevel.pro on or for any of its products or services referenced on the Site (collectively all the “_toplevel.pro Marks”) are service marks or trademarks (or registered service marks or trademarks) of _toplevel.pro. Other company names and other product or service names or designations referenced on the Site may be the service marks or trademarks (or registered service marks or trademarks) of their respective owners. All rights in the Site, the Technology, the Downloaded Technology and the __toplevel.pro Marks are reserved by __toplevel.pro. You may not use the _toplevel.pro Marks for any purpose whatsoever without the prior express written consent of toplevel.pro.
12. No Warranty. .
toplevel.pro PROVIDES THE SITE AND SERVICES “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. toplevel.pro SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.
13. Disclaimer Of Liability.
IN NO EVENT WILL toplevel.pro BE LIABLE UNDER ANY THEORY OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INJURY, LOSS, OR DAMAGE OF ANY KIND ARISING IN CONNECTION WITH YOUR USE OF OUR SERVICES AND THE SITE, EVEN IF toplevel.pro HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH INJURY, LOSS, OR DAMAGE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU AGREE THAT toplevel.pro, ITS DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS AND REPRESENTATIVES SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM OR RELATED TO: (1) THE DENIAL OR INTERRUPTION OF ACCESS TO THE SITE, (2) ANY INACCURACIES IN ANY OF THE INFORMATION DISPLAYED ON OR PROVIDED THROUGH OR WITH THE SITE, (3) THE PURCHASE OR USE OF ANY PRODUCT OR SERVICE LISTED ON THE SITE, INCLUDING ANY DEFECT IN ANY SUCH PRODUCT OR SERVICE, OR (4) YOUR USE OF OR INABILITY TO USE THE SITE. YOU AGREE THAT THIS LIMITATION OF LIABILITY IS COMPREHENSIVE AND APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ALL DIRECT, INDIRECT, COMPENSATORY, SPECIAL, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES. Some States do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
14.1. Choice of Law. The laws of the State of California, United States of America, without regard to its choice-of-law rules, will govern the instruction, interpretation, and enforcement of these Terms and Conditions.
14.2. Arbitration. Any legal controversy or legal claim arising out of or relating to these Terms and Conditions or our Services, excluding legal action taken by toplevel.pro to collect our fees and/or recover damages for, or obtain an injunction relating to, the Site operations, intellectual property, and our Services, shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in Santa Clara County, California, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Either you or toplevel.pro may seek any interim or preliminary relief from a court of competent jurisdiction in Santa Clara County, California, necessary to protect the rights or property of you or toplevel.pro pending the completion of arbitration. Should either party file an action contrary to this provision, the other party may recover attorneys’ fees and costs.
15. Fees and Services.
Currently, toplevel.pro does not charge a user for registration on the Site or for bidding on items listed on the Site. However, toplevel.pro does charge a monthly subscription fee for the listing of items for sale on the Site. The current “Fees and Credit Policies” for listing items for sale on the Site are available [here]. All fees are quoted in United States Dollars and the Fees and Credit Policies are incorporated into these Terms and Conditions by this reference. When you list an item you have an opportunity to review and accept the fees that you will be charged for the use of our Services. toplevel.pro may in its sole discretion change some or all of our Services at any time. In the event toplevel.pro introduces a new service, the fees for that service are effective at the launch of the service. You are responsible for paying all applicable taxes related to or arising from the purchase or sale of items listed on the Site and for all other costs incurred by you to bid, buy, procure a listing from the Site or access the Site’s servers. Your use of the Site and Services evidence your acceptance of the fees and your commitment to payment of all applicable fees.
You agree to indemnify and hold toplevel.pro and its subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party.
17. Legal Compliance.
You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of our Services and your bidding on, listing, purchase, solicitation of offers to purchase, and sale of items.
18. No Agency.
You and toplevel.pro are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
Except as explicitly stated otherwise, any notices shall be given by postal mail to toplevel.pro, Inc., Attn: Legal, P.O. Box 613104, San Jose, CA 95161 or to the email address you provide to toplevel.pro during the registration process. Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, toplevel.pro may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to toplevel.pro during the registration process. In such case, notice shall be deemed given 3 days after the date of mailing.
toplevel.pro does not guarantee continuous, uninterrupted or secure access to our services, and operation of the Site may be interfered with by numerous factors outside of our control. If any provision of these Terms and Conditions are held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. You agree that these Terms and Conditions and all incorporated agreements may be automatically assigned by toplevel.pro, in our sole discretion, to a third party in the event of a merger or acquisition. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. toplevel.pro's failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. These Terms and Conditions sets forth the entire understanding and agreement between you and toplevel.pro with respect to the subject matter hereof. Sections 3.3 (Release), 6.3 (License), 8 (Access and Interference), 12 (No Warranty), 13 (Disclaimer of Liability) and 14.2 (Arbitration) shall survive any termination or expiration of these Terms and Conditions.