TERMS AND CONDITIONS
READ IT CAREFULLY
WELCOME AND Introduction
Top10 may change these Terms from time to time. Please review the Terms periodically. Your continued access to, and viewing and use of the Site and any content, materials or services accessible through the Site, after such posting or notification, which will take effect immediately (unless otherwise noted), means you accept any and all such modifications and updates to these Terms.
Top10 reserves the right to, at any time, and from time to time, modify or discontinue (temporarily or permanently) the Site, the content, materials, and services accessible on and through the Site, or any part thereof. Top10 shall not be liable to you or any other third party for any such modification, suspension or discontinuance of any of the foregoing, except as expressly provided herein.
Unless otherwise expressly agreed in writing, no fiduciary, quasi-fiduciary or other special relationship exists between you and Top10 and/or its affiliates, parent companies, partners, subsidiaries, directors, principals, employees, and/or contractors (“Suppliers”). We owe you a duty of ordinary care. Any internal policies or procedures that Top10 and its Suppliers may maintain in excess of reasonable commercial standards and general usage are solely for Top10’s and its Suppliers’ own benefit and shall not impose a higher standard of care than otherwise would apply in their absence. We are not a law firm, accounting firm, creditor, insurer, financial broker or institution, creditor or charitable organization. We merely provide the Services (defined herein) through our Site in a hosting and administrative capacity only.
A. Services Description. Top10 is a website that lists various marketing, advertising, and digital agencies and firms (the “Agencies”, and each and “Agency”) and ranks them based upon various criteria, including, but not limited to, market exposure, past portfolio work, Agency size, and various other criteria aggregated by Top 10 in its sole discretion (the “Rankings”). Top10 posts its Rankings along with various other commentary and content on the website regularly and updates such Rankings every so often in Top10’s discretion (the “Services”). You recognize and agree that Top10 may implement from time to time, in its sole discretion, set times to release updates of the Rankings on the Site. You recognize and agree that any Rankings, materials, pictures, and ideas posted to the Site are solely the opinions of Top10 and may not reflect the true stature or standing of any particular Agency in the marketplace.
B. DISCLAIMERS. YOU RECOGNIZE AND AGREE THAT THE RANKINGS ARE SOLELY THE OPINION OF TOP10 AND MAY BE CONSIDERED SUBJECTIVE. Top10 has not, and cannot, review every Agency that exists and thus the Rankings may not take into consideration Agencies that may be qualified to be listed within the Rankings.
You agree that you must review any documents and contracts, if any, exchanged between you and any Agency or Agencies listed in the Rankings on the Site. WE DO NOT PROVIDE LEGAL, FINANCIAL, AND/OR ACCOUNTING ADVICE OF ANY KIND. IT IS YOUR SOLE RESPONSIBILITY TO REVIEW ANY DOCUMENTS AND/OR CONTRACTS EXCHANGED BETWEEN YOU AND ANY AGENCY OR AGENCIES LISTED IN THE RANKINGS ON THE SITE WITH YOUR OWN LEGAL AND FINANCIAL COUNSEL.
YOU AGREE THAT WE CANNOT GUARANTEE THE SUCCESS OF ANY ENGAGEMENT OR ANY SPECIFIC OUTCOME OF ANY WORK OR RELATIONSHIP WITH ANY AGENCY OR AGENCIES LISTED IN THE RANKINGS AND DISPLAYED ON THE SITE.
You further recognize and agree that you have no obligation to rely on or use the Rankings and any Agency listed in the Rankings. YOU FURTHER SPECIFICALLY AGREE TO ENGAGE OR USE ANY AGENCY OR AGENCIES LISTED IN THE RANKING ON THE SITE SOLELY AT YOUR OWN RISK.
YOU RECOGNIZE AND AGREE THAT WE MAY INCLUDE WITHIN THE RANKINGS, VARIOUS OF OUR SUPPLIERS AND SUCH USE OF OUR SUPPLIERS WITHIN THE RANKINGS MAY BE CONSIDERED SUBJECTIVE.
USER FEES AND COSTS
A. Passive Visitors. Top10 currently does not charge Users who are merely passive visitors to the Site.
B. Agency Fees. Top10 does offer Agencies the option to purchase various levels of packages (the “Packages”). Top10 charges those Agencies who purchase a Package various fees (“Fees”), which purchase additional hours for Top10’s staff to review and consider such purchasing Agencies application for placement within the Rankings. YOU MAY SEE THE LIST OF FEES IN THE “PACKAGE” PORTION OF THE SITE. You agree that we may change these Fees from time to time, at our sole discretion. By purchasing any Package and paying any related Fee(s), you understand and agree that you may have an advantage in achieving a higher spot within the Rankings based upon Top10’s additional amount of hours spent reviewing such paying Agency’s application. You also agree that purchasing a Package and paying any related Fees does not necessarily guarantee you a specific spot (or any spot at all) within the Rankings at any given time.
INTELLECTUAL PROPERTY AND LICENSES
Top10 and its Suppliers do not grant any license or other authorization to you to display, distribute, share, sell, license, copy, use, or otherwise exploit Top10’s own: (a) trademarks, logos, service marks, trade dress rights, or other source-identifying symbols or devices, whether registered or unregistered, (the “Top10 Trademarks”); (b) text, images, designs, graphics, and/or other copyrightable material, whether registered or registered (the “Top10 Copyrights”), and/or (c) design or utility patents, whether registered or registered (the “Top10 Patents”), by placing them on the Site, or otherwise. The Top10 Trademarks, the Top10 Copyrights, and the Top10 Patents are collectively referred to the “Top10 IP”. You agree to not display, use, display, copy, distribute, infringe on, counterfeit, or otherwise exploit the Top10 IP, except as explicitly authorized by Top10 in writing. Top10 and its Suppliers do not grant any license or other authorization to you of thee Top10 IP by providing you access to the underlying material, concepts, text, and code of the Site, the Rankings, and the Services. You agree to not display, use, copy, distribute, reverse engineer or otherwise exploit the Top10 IP except as expressly authorized within these Terms.
A. User Restrictions.
By viewing, accessing and using the Site and the Services, you agree that you will not do any of the following:
(1) Restrict or inhibit any other User in any way from viewing, accessing, using and/or enjoying the Site, and/or the Services; or
(2) Transmit to any other User, Top10, and/or any Agency any unlawful, fraudulent, libelous, defamatory, obscene, pornographic, harassing, profane, threatening, abusive, discriminatory, hateful, offensive, or otherwise objectionable information, images, material, and/or content of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or foreign law, including without limitation the U.S. and international export control laws and regulations; or
(3) Post or transmit any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities, investment schemes, or other unsolicited commercial communication, or engage in spamming or flooding; or
(4) Post or transmit any information, software, or material which contains a virus, trojan horse, worm and/or other harmful component; or
(5) Post, publish, transmit, reproduce, distribute or in any way exploit any Top10 IP, and/or the software used by Top10 to provide the Services; or
(6) Use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Site and/or the Services accessed thereon, other than as Top10 expressly permits in writing; or
(7) Attempt to decipher, decompile, disassemble, or reverse-engineer any of the software comprising or in any way making up the Site and/or the Services; or
(8) Impersonate any person or entity, whether actual or fictitious, including, but not limited to, any other User, Agency, and/or employee or representative of Top10; or
(9) Disparage, defame, and/or malign any other User, any Agency, and/or Top10; or
(10) Use our Site, the Rankings, and/or the Services to stalk, track, monitor, or harass any person for any reason.
B. Site Monitoring.
You recognize and agree that Top10 has no obligation or duty to monitor the Site and its Users. However, you agree that Top10 and its Suppliers have the right to monitor the Site and its Users electronically, from time to time, and to disclose any information as necessary or appropriate to: (1) satisfy any law, regulation or other governmental request; (2) operate the Site and the Services properly; and/or (3) protect itself, its Suppliers and/or its Users. Top10 further reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, fraudulent, inappropriate, or in violation of these Terms.
You agree that, as a User, we may verify your identity at any time during or after your use of Site, the Site, and/or the Services. You hereby authorize us to make any inquiries we consider necessary to validate your identity, which may include asking you for further information, requiring you to provide your full address, and/or requiring you to take steps to confirm ownership of your email address, or verifying information you provide against third party databases or through other sources. If you either (1) do not provide any such requested information, as prompted, if at all, and/or (2) Top10 cannot verify your identity, you agree that Top10 may refuse to allow you to access, view, and/or use the Site, the Rankings, and the Services.
B. Login and Password.
Top10 may, from time to time, require you to create a login and password to access certain portions of the Services. You agree and understand that you are solely responsible for maintaining the confidentiality of any of your personal login and access information, including, but not limited to any password(s), LoginID(s), e-mail address(es), and/or mobile number(s) that allow you to access and use the Site, the Rankings, and/or the Services.
C. Use with Your Mobile Device.
Access to and use of (1) the Site, (2) the Rankings listed on the Site, and/or (3) the Services may be available through a compatible mobile device, Internet and/or network access, and may require software and/or other equipment. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees as well as the terms of your agreement with your mobile device and telecommunications provider. TOP10 MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO: (i) THE AVAILABILITY OF TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SITE AND/OR THE SERVICES AT ANY TIME, OR FROM ANY LOCATION; (ii) ANY LOSS, DAMAGE, OR OTHER SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES; AND (iii) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTINGS CONNECTED WITH THE SITE AND/OR THE SERVICES.
You recognize and agree that neither Top10 nor its Suppliers will be liable to you in any way for (1) the termination, interruption, delay or inaccuracy of the Site, and/or (2) the inability to, or the delay in, viewing, accessing, and/or using any of the Rankings and/or the Services due to any such termination, disruption, delay, or inaccuracy.
A. Emails and Phone Numbers.
Top10 and its Suppliers may, from time to time, (1) provide you with a way to contact us through the Site, or (2) request that you provide us with a way to contact you through email before, during, or after any registration process, so that we may communicate electronically. All such electronic communications will be received or otherwise recorded by Top10 and its Suppliers, and are subject to archival, monitoring or review by and/or disclosure to, someone other than the recipient. All such electronic communications may involve the transmission you provided to us of information that you may consider to be personal information. You agree and consent to such transmission of such information. You agree not to use e-mail to transmit any confidential personal information other than as requested by Top10 and its Suppliers.
You consent to receive communications from us electronically. We will communicate with you by e-mail, or by posting notices on the Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communication be in writing.
In connection with your use of the Site and Services accessible through the Site, you acknowledge and consent to any form of recording of any communication (electronic or otherwise) between you and Top10, its Suppliers, and/or their representatives or agents. You acknowledge and consent to the recording, retention and use by Top10 and its Suppliers of any and all information and data contained in (1) any communication with Top10 and its Suppliers, and (2) any information input posted on or through the Site and Services.
Third Party Services
In connection with your access to and viewing of the Site, you may be made aware of other services, products, offers and promotions provided through third parties (such as other Agencies), and not by Top10 (“Third Party Services”). If you decide to use Third Party Services, you are responsible for reviewing and understanding the terms and conditions governing any Third Party Services. You agree that the third party, and not Top10 or its Suppliers, is responsible for the performance of the Third Party Services. This may contain or reference links to third parties’ websites and platforms. Some of those links are provided as a convenience only. The inclusion of any link is not and does not necessarily imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by Top10 of any information contained in any third party’s website or platform. In no event will Top10 be responsible for the information contained in such third party website or platform or for your use of or inability to use such website or platform. Access to any other website or platform is at your own risk, and you should be aware that linked websites or platforms may contain terms and privacy policies that are different from those of Top10. Top10 and its Suppliers are not responsible for such provisions and expressly disclaim any and all liability for the same.
You agree to defend, indemnify and hold Top10 and its Suppliers harmless from any and all claims, liabilities, costs and expenses (no matter how arising), including, but not limited to, reasonable attorneys' fees, arising in any way from (1) your use of the Site, the Rankings contained on the Site, and the Services, and/or (2) your experience on the Site and/or with the Services.
LIMITATION OF LIABILITY
THIS SECTION IS A LIMITATION OF OUR LIABILITY TO YOU. IT SPECIFICALLY LIMITS THE EXTENT TO WHAT WE MAY OWE YOU IN THE EVENT WE ARE LIABLE FOR ANY ACTION BY YOU AGAINST US. PLEASE READ THIS SECTION CAREFULLY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TOP10 AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR FOR DAMAGES RELATING TO TELECOMMUNICATION FAILURES, LOSS, CORRUPTION, SECURITY OR THEFT OF DATA, VIRUSES, SPYWARE, OR THE LIKE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF TOP10 AND/OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TOP10 AND YOU. TOP10 AND ITS SUPPLIERS WOULD NOT BE ABLE TO HAVE PROVIDED THE SITE, THE RANKINGS, AND/OR THE SERVICES WITHOUT SUCH LIMITATIONS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TOP10’S LIABILITY TO YOU FOR ANY CAUSE WHATEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF $250.00.
These Terms will be governed by New York law as applied to agreements entered into, and to be performed entirely within, the state of New York, without regard to its choice of law or conflicts of law principles that would require application of law of a different jurisdiction, and applicable federal law. Headings are included for convenience only, and shall not be considered in interpreting these Terms.
INTERPRETATION OF THESE TERMS
If any provision of the Terms is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.
IT IS IMPORTANT THAT YOU READ THIS ARBITRATION CLAUSE. IT PROVIDES THAT YOU MAY BE REQUIRED TO RESOLVE ANY CLAIM OR DISPUTE THROUGH ARBITRATION, EVEN IF YOU WOULD PREFER TO LITIGATE THE CLAIM IN COURT. YOU ARE GIVING UP THE RIGHTS YOU MIGHT HAVE TO LITIGATE SUCH CLAIMS BEFORE A JURY. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL THE DECISION, MAY NOT BE AVAILABLE IN ARBITRATION OR MAY BE MORE LIMITED. YOU SHOULD CONSULT LEGAL COUNSEL TO DETERMINE WHETHER THIS ARBITRATION CLAUSE IS APPROPRIATE FOR YOU.
Any dispute, controversy or claim arising out of, or relating to, in any way, these Terms and your access to and use of the Site, the Rankings, and the Services, including without limitation any dispute concerning the construction, validity, interpretation, enforceability or breach of these Terms, shall be exclusively resolved by binding arbitration upon a party’s submission of the dispute to arbitration. The demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after two (2) years from when the aggrieved party knew or should have known of the controversy, claim, dispute or breach.
This agreement to arbitrate under this section shall be specifically enforceable. We may apply to any court with jurisdiction for interim or conservatory relief, including without limitation a proceeding to compel arbitration. The arbitration shall be conducted in accordance with the American Arbitration Association rules. The arbitrator shall have at least ten (10) years of experience in the field of online services and platforms and also shall have served as an arbitrator at least three (3) times prior to his or her service as an arbitrator in this arbitration. The arbitration shall be conducted in accordance with the then-existing Commercial Rules of the American Arbitration Association
The arbitration shall be conducted in New York, New York, USA. The laws of the state of New York shall be applied in any such arbitration proceedings, without regard to principles of conflict of laws.
Except as may be required by law, you nor your representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of Top10. The arbitrator shall not be entitled to issue injunctive and other equitable relief.
The cost of the arbitration proceeding and any proceeding in court to confirm or to vacate any arbitration award, as applicable (including, without limitation, reasonable attorneys’ fees and costs), shall be borne by the unsuccessful party, as determined by the arbitrators, and shall be awarded as part of the arbitrator’s award. It is specifically understood and agreed that any party may enforce any award rendered pursuant to the arbitration provisions of this section by bringing suit in any court of competent jurisdiction. The parties agree that the arbitrator shall have authority to grant injunctive or other forms of equitable relief to any party. This section shall survive the termination or cancellation of these Terms.
Each party to an arbitration proceeding shall pay its own proportionate share of arbitrator fees and expenses and the arbitration fees and expenses of the American Arbitration Association. The arbitrator shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in his or her sole discretion.
Top 10 Digital Agencies is fully owned by Vadyr LLC, that shares ownership with Ruckus Marketing LLC, a digital firm in NYC. To avoid any conflicts of interest, Ruckus Marketing LLC will not be included in any rankings within the website, but, may occasionally appear as a featured agency.