TOP CITY BITES MEDIA LLC
These Terms govern your access to and use of TOP CITY BITES MEDIA LLC, a Delaware corporation headquartered in Wilmington, Delaware (“TOP CITY BITES”) websites, mobile applications, and all other services (“Site”). By accessing or using the Site, you are acknowledging that you have read, understand, and agree to these Terms and are entering into a legally binding contract with TOP CITY BITES. Do not access or use the Site if you are unwilling or unable to be bound by the Terms.
THESE TERMS REQUIRE YOU TO AGREE TO THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
“You” and “your” refers to you, as a user of the Site, without regard for your account type (i.e. personal, restaurant, Guest Blogger, etc.)
A “user” refers to someone who accesses, browses, crawls, scrapes, or in any way uses the Site.
A “Venue” refers to participating businesses.
“We,” “us,” and “our” refers to TOP CITY BITES.
“Content” means text, images, photos, designs, writings, graphs, audio, video, location data, hyperlinks, and all other forms of data or communication.
“Your Content” means Content that you submit or transmit to, through, or in connection with the Site, such as ratings, reviews, compliments, invitations, check-ins, messages, and information that you publicly display or displayed in your account profile.
“User Content” means Content that users submit or transmit to, through, or in connection with the Site.
“TOP CITY BITES Content” means Content that we create and make available in connection with the Site.
“Third Party Content” means Content that originates from parties other than TOP CITY BITES or its users, which is made available in connection with the Site.
“Site Content” means all of the Content that is made available in connection with the Site, including Your Content, User Content, Third Party Content, and TOP CITY BITES Content.
“Venue Offer” refers to the goods and/or services to be provided by the Venue.
“Offer Expiration Date” refers to date in the Venue Offer when the Venue Offer expires.
Changes to Terms:
We reserve the right to alter the Terms at any time. If the alterations constitute a material change to the Terms, we will notify you electronically, either via e-mail or upon login to the Site. What constitutes a “material change” will be determined at our sole discretion, in good faith and using common sense and reasonable judgment. Your continued access to or use of the Site after receiving notification of changes to the Terms will bind you to them. If you wish not to agree to the new Terms, your relationship with TOP CITY BITES will terminate, though your obligations under these Terms will continue.
Using the Site:
To access or use the Site, you must be 13 years or older and have the requisite power and authority to enter into these Terms. The Site is not directed to people under the age of 13. If you become aware that your child has provided us with personal information without your consent, please contact us by e-mail at [email protected] You may not access or use the Site if you are a competitor of ours, if we have previously banned you from the Site or closed your account, if doing so would violate any other agreement to which you are a party, or if doing so would violate any rights of TOP CITY BITES or of a third party, including intellectual property rights such as copyright or trademark rights.
The Site or any portion thereof may be modified, updated, interrupted, suspended, or discontinued at any time without notice or liability.
You must create an account and provide certain personal information in order to use some of the Site’s features. You may not impersonate another person, create or use an account for anyone other than yourself, provide an email address other than your own, or create multiple accounts.
You are responsible for keeping your account secure and maintaining the confidentiality of your account password. You are also solely responsible for all activities that occur in connection with your account. To protect your account from unauthorized use, you agree not to provide your username or password to anyone else. You agree you will not directly or indirectly permit or enable any unauthorized access to your account. You agree to notify us immediately of any unauthorized use of your account or any other breach of security by sending an email to [email protected] You will take all steps reasonably necessary to terminate the unauthorized use. You will cooperate and assist with any actions taken by TOP CITY BITES to prevent or terminate unauthorized use of any part of the Site. Without limiting our other remedies, we may immediately discontinue, suspend, terminate, or block your and any user’s access to the Site at any time in our sole discretion for any or no reason without notice or liability. Though your right to use the Site may be terminated, any obligations you have as set forth in these Terms shall continue. You may also request that we stop collecting your personal data, which will also terminate your rights.
You alone are responsible for Your Content, and once published, it cannot be withdrawn. You assume all risks associated with Your Content, including anyone’s reliance on its quality, accuracy, or reliability, or any disclosure by you of information in Your Content that makes you personally identifiable. You represent and warrant that you own, or have the necessary permissions to use and authorize the use of Your Content as described herein, that the information is accurate, not confidential and not in violation of any contractual restrictions or other third-party rights. It is your responsibility to keep your TOP CITY BITES profile information accurate and updated. You may not imply that Your Content is in any way sponsored or endorsed by TOP CITY BITES. You may expose yourself to liability if, for example, Your Content contains material that is false, intentionally misleading, or defamatory; violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.
Ownership and Usage:
As between you and TOP CITY BITES, you own Your Content. However, we may use Your Content in a number of different ways, including publicly displaying it, reformatting it, incorporating it into advertisements and other works, creating derivative works from it, promoting it, distributing it, and allowing others to do the same in connection with their own websites and media platforms (“Other Media”). As such, you hereby irrevocably grant us a world-wide, perpetual, non-exclusive, royalty-free, assignable, sublicensable, transferable license to use Your Content you provide to or through the Site (“License to Your Content”) for any purpose. Please note that you also irrevocably grant the users of the Site and any Other Media a License to Your Content in connection with their use of the Site and any Other Media. By “use” we mean use, copy, publicly perform and display, reproduce, distribute, modify, re-format, re-arrange, translate, remove, analyze, commercialize, and prepare derivative works of Your Content. The License to Your Content is limited to the purpose of operating and providing the Site to you and our other users. The License to Your Content ends when you delete Your Content unless Your Content has been shared with others and they have not deleted it. When you delete Your Content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that any of Your Content that is removed may persist in backup copies for a reasonable period of time (but will not be available to others). Finally, you irrevocably waive, and cause to be waived, against TOP CITY BITES and its users any claims and assertions of moral rights or attribution with respect to Your Content.
TOP CITY BITES and its licensees may publicly display advertisements and other information adjacent to or included with Your Content. You are not entitled to any compensation for such advertisements. The manner, mode and extent of such advertising are subject to change without specific notice to you.
You acknowledge that the Site is a public platform and other users will be able to search for, access, and otherwise use content or information you provide to or through the Site. Following termination or deactivation of your account, or if you remove your content from your account, TOP CITY BITES may retain the content you provided to or through the Site for backup, archival, or audit purposes. However, we have no obligation to retain or provide you with copies of Your Content, nor do we guarantee any confidentiality with respect to Your Content. Any information or Content you submit to us is at your own risk of loss.
TOP CITY BITES Content and Ownership:
We own the TOP CITY BITES Content, including but not limited to visual interfaces, interactive features, graphics, design, compilation, including, but not limited to, our compilation of User Content and other Site Content, computer code, products, software, aggregate user review ratings, and all other elements and components of the Site excluding Your Content, User Content and Third Party Content. We also own the copyrights, trademarks, service marks, trade names, and other intellectual and proprietary rights throughout the world (“IP Rights”) associated with the TOP CITY BITES Content and the Site, which are protected by copyright, trade dress, patent, trademark laws and all other applicable intellectual and proprietary rights and laws. As such, you may not modify, reproduce, distribute, create derivative works or adaptations of, publicly display or in any way exploit any of the TOP CITY BITES Content in whole or in part except as expressly authorized by us. Permission is granted to display, copy, distribute, download and print portions of the Site solely for the purposes of using this Site for the authorized uses described in these Terms. You agree to comply with all copyright laws worldwide in your use of this Site and prevent unauthorized copying of the Site. You are granted a limited, non-sublicensable license to access and use the Site and electronically copy (except where prohibited without a license) and print to hard copy portions of the Site (except Third Party Content) for your informational, non-commercial and personal use only. The license is subject to these Terms and does not include:
Any resale or commercial use of the Site or Site Content therein;
The distribution, public performance or public display of any Site Content;
Modifying or otherwise making any derivative uses of our Site and the Site Content (or any portion thereof);
Use of any data mining, robots or data gathering or extraction methods;
Downloading (other than the page caching) of any portion of our Site, the Site Content or any information contained therein, except as expressly permitted on our site; or
Any use of our Site or the Site Content other than for its intended purpose.
Any use of our Site or the Site Content other than as specifically authorized in these Terms, without our prior written permission, is strictly prohibited and will terminate the license granted in these Terms. Such unauthorized use may also violate applicable laws including, but not limited to, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms will be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time. Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the Site and the TOP CITY BITES Content are retained by us.
Site Content (including any that may have been created by users employed or contracted by TOP CITY BITES does not necessarily reflect the opinion of TOP CITY BITES and TOP CITY BITES does not guarantee the accuracy, reliability, timeliness, or availability of Site Content. We reserve the right to remove, screen, edit, or reinstate Site Content from time to time at our sole discretion for any reason or no reason, and without notice.
This Site is intended to allow users to create, publish, view and interact with status updates, reviews and other Site Content and to create an open dialogue among users. Any other use of this Site is prohibited. We are under no obligation to enforce the Terms on your behalf against another user. While we encourage you to let us know if you believe another user has violated the Terms, we reserve the right to investigate and take appropriate action at our sole discretion.
We do our best to keep the Site safe, but we cannot guarantee it. We need your help to keep the Site safe. To keep the Site safe, you agree not to, and will not assist, encourage, or enable others to use the Site to:
Post false, misleading, or defamatory Content;
Give or receive undisclosed compensation for the removal or creation of a review;
Violate any third party’s rights, including any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, other laws protecting any materials or data of others in the absence of a valid license or other right to do so, or any other intellectual property or proprietary right;
Threaten, stalk, bully, intimidate, harm, or harass others, or promote bigotry or discrimination or incite violence or to encourage anything that is unlawful, misleading, or malicious;
Promote a business or other commercial venture or event, or otherwise use the Site for commercial purposes, except in connection with a restaurant account or as expressly permitted by TOP CITY BITES in writing;
Engage in unlawful multi-level marketing, such as a pyramid scheme on the Site;
Send bulk emails, surveys, chain letters, or other mass messaging, whether commercial in nature or not; post unauthorized commercial communications (such as spam) on the Site; engage in keyword spamming, or otherwise attempt to manipulate the Site’s search results or any third party website;
Solicit personal information from minors, or submit or transmit pornography or obscene Content;
Develop or operate a third-party application of any type. containing alcohol-related, dating or other mature content (including advertisements) without appropriate age-based restrictions; or
Violate any applicable law.
You also agree not to, and will not assist, encourage, or enable others to:
Violate the Terms;
Modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Site or Site Content (other than Your Content), except as expressly authorized by TOP CITY BITES;
Collect, record, process, or mine other users’ content or information or otherwise access the Site using harvesting bots, robots, spiders, site search/retrieval application, or other automated device, process or means to access, retrieve, scrape, or index any portion of the Site or any Site Content;
Reverse engineer any portion of the Site;
Remove or modify any copyright, trademark or other proprietary rights notice that appears on any portion of the Site or on any materials printed or copied from the Site;
Access, retrieve or index any portion of the Site for purposes of constructing or populating a searchable database of business reviews;
Reformat or frame any portion of the Site;
Take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on TOP CITY BITES’ technology infrastructure, otherwise make excessive traffic demands of the Site, or disables, overburdens, or impairs the proper working or appearance of the Site, such as a denial of service attack or interference with page rendering or other aspects of the Site’s functionality;
Attempt to gain unauthorized access to the Site, user accounts, computer systems or networks connected to the Site through hacking, password mining or any other means; solicit login information or access an account belonging to someone else;
Engage in the unauthorized use or disclosure of private, personally identifiable information of others;
Use the Site or any Site Content to transmit any computer viruses, worms, defects, Trojan horses, malicious code or other items of a destructive nature (collectively, “Viruses”);
Use any device, software or routine that interferes with the proper working of the Site, or otherwise attempt to interfere with the proper working of the Site;
Use the Site to violate the security of any computer network, crack passwords or security encryption codes; disrupt or interfere with the security of, or otherwise cause harm to, the Site or Site Content; or
Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Site, features that prevent or restrict the use or copying of Site Content, or features that enforce limitations on the use of the Site.
The restrictions above only apply to the extent permissible under applicable law. Nevertheless, you agree not to act contrary to them (even if permissible under applicable law) without providing 30 days’ prior written notice to us, together with any information that we may reasonably require to give us an opportunity to provide alternative remedies or otherwise accommodate you at our sole discretion.
The Site contains User Content and Third Party Content which is not verified or endorsed by TOP CITY BITES. If you believe that your copyright is being infringed on the Site, please send us a written notice with the following information:
Identification of the copyrighted work that you claim has been infringed.
Identification of the allegedly infringing content, and information reasonably sufficient to permit TOP CITY BITES to locate it on the Site (e.g., the URL for the web page on which the content appears);
A statement by you that you have a good faith belief that the use of the content identified in your notice in the manner complained of is not authorized by the copyright owner, its agent, or the law;
A statement by you that you attest, under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the owner’s behalf; and
Your physical or electronic signature, together with your contact information (address, telephone number and, if available, email address).
If you believe that your content should not have been removed for alleged copyright infringement, you may send us a written counter-notice with the following information:
Identification of the copyrighted work that was removed, and the location on the Site where it would have been found prior to its removal;
A statement, under penalty of perjury, that you have a good faith belief that the content was removed as a result of a mistake or misidentification.
A statement that you consent either to the jurisdiction of (a) the Federal District Court for the judicial district in which your address is located if you live in the United States, or (b) any judicial district in which TOP CITY BITES is located if you live outside the United States. Please also include a statement that you will accept service of process from the person who sent the original infringement notice to TOP CITY BITES, or an agent of such person;
Your physical or electronic signature, together with your contact information (address, telephone number and, if available, email address).
We will respond to all such notices and comply with applicable law. We reserve the right to remove content alleged to be infringing without prior notice and at our sole discretion. We also reserve the right to terminate a user’s account if the user is determined to be a repeat infringer.
You can send us your copyright notices to [email protected]
If the Site contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
Utilizing the services, software, materials, or data provided by any third parties shall subject you to their provider’s terms of service in addition to these Terms. You should consult with your internet, phone, or data provider as to these terms and any relevant pricing data. You hereby certify that you are in compliance with all third-party terms of service and that you are solely responsible for any costs. You agree that TOP CITY BITES is not responsible for the content, accuracy, safety, quality, legality, timeliness, or completeness of any services, software, materials, or data provided by third parties, including Third Party Content on the Site. You agree not to hold TOP CITY BITES responsible for any fees, costs, or damages caused in part or wholly by third parties.
We may run advertisements and promotions from third parties on our Site or may otherwise provide information about or links to third-party products or services on our Site. Your business dealings or correspondence with or participation in promotions of such third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third party. We are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or promotions or as the result of the presence of such non TOP CITY BITES advertisers or third party information on our site.
“Guest Bloggers” refers to all users that have previously agreed to provide content for TOP CITY BITES subject to a Guest Blogger Agreement and all users that agree to provide content for TOP CITY BITES subject to the terms of this Section 10.
Guest Bloggers shall provide written blog postings (the “Submission”) to TOP CITY BITES covering the Guest Blogger’s area of expertise. The Guest Blogger grants TOP CITY BITES a perpetual, exclusive, fully paid, royalty-free, irrevocable, sublicenseable, worldwide license and right to display, use, perform, reproduce, modify, distribute and create derivative works of the Submission in any media, software, or technology of any kind now existing or developed in the future. The Guest Blogger also grants TOP CITY BITES a perpetual, non-exclusive, fully paid, royalty-free, irrevocable, sublicenseable, worldwide license and right to use the Guest Blogger’s name (whether a legal name, pen name, nick-name, or pseudonym) and likeness in connection with the Submission, and represents and warrants to TOP CITY BITES that the Guest Blogger has the right to grant such license.
TOP CITY BITES shall compensate the Guest Blogger by listing the Guest Blogger in the bio section of the TOP CITY BITES Instagram account, and by recognizing the Guest Blogger on the TOP CITY BITES website with a link to the Guest Blogger’s post. In addition, TOP CITY BITES will permit the Guest Blogger to link to his/her personal Instagram account within the post created by the Guest Blogger for TOP CITY BITES MEDIA LLC.
Not an Employee:
The Guest Blogger is an independent contractor and is not an employee or agent of TOP CITY BITES. The Guest Blogger will be entitled to no benefits or compensation from TOP CITY BITES except as set forth in Section 10(C) of the Terms and will in no event be entitled to any fringe benefits payable to employees of TOP CITY BITES.
TOP CITY BITES understands that the Guest Blogger may perform similar services for other parties and is not serving TOP CITY BITES exclusively. The Guest Blogger shall not disclose to TOP CITY BITES or through any Submission any inventions, trade secrets, or other information of third parties that Guest Blogger does not have the right to disclose and that TOP CITY BITES is not free to use without liability. Also, if the Guest Blogger has a material relationship with any brand, product, person, or entity mentioned or referenced in the Submission, that relationship will be disclosed within the Submission. Additionally, the Guest Blogger will become familiar with and will adhere to the FTC’s rules on Endorsements and Testimonials and any relevant industry guidelines.
We may, but undertake no obligation to, exercise editorial control over material published on the Site, including editing the Submission for content, length, format, etc. as is deemed appropriate by us for usage on the Site.
The Guest Blogger agrees that during the term of these Terms and thereafter, Guest Blogger shall not, except as required by law or legal process, disclose without the prior written consent of TOP CITY BITES, any Confidential Information. “Confidential Information” means all confidential information and/or trade secrets relating to the business of TOP CITY BITES or its affiliates, including without limitation, information concerning the management, business, operations, technology, products or business plans of TOP CITY BITES or its affiliates. Confidential Information does not include information that Guest Blogger can demonstrate (i) has become part of the public domain except by fault of Guest Blogger, (ii) Guest Blogger already possessed prior to its disclosure to Guest Blogger by TOP CITY BITES, or (iii) Guest Blogger learned from a third party source having no duty of confidentiality to TOP CITY BITES.
Survival and Termination:
The terms set forth in this Section 10 may be terminated by TOP CITY BITES immediately upon written notice to the Guest Blogger in the event of a material breach by the Guest Blogger in the performance of his/her obligations under the terms of this Section 10 and the other Terms. Either party may terminate these terms at any time by providing the other party with written notice of termination. The terms and obligations of (B), (F), (G), and (I) of this Section 10 will survive termination of this Section 10 and the other Terms.
Representations and Warranties; Indemnification:
By posting or providing a Submission, the Guest Blogger represents and warrants that: (i) Guest Blogger owns all right title and interest in the Submission or otherwise has the right to grant the license set forth in these terms, and (ii) the Submission, and TOP CITY BITES’ use of the Submission, does not violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person. The Guest Blogger agrees that the Submission and TOP CITY BITES’ use of the Submission will not violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person. The Guest Blogger agrees not to include matter that is scandalous, libelous, obscene, or otherwise unlawful or tortious in the Submission. The Guest Blogger agrees to indemnify and hold Company, and its subsidiaries, affiliates, officers, agents, and employees, harmless from any costs, damages, expenses, and liability caused by TOP CITY BITES’ use of the Submission pursuant to the terms of this Section 10 or the other Terms or by the Guest Blogger’s violation of the terms of this Section 10 or the other Terms. TOP CITY BITES reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the Guest Blogger, in which event the Guest Blogger will fully cooperate with TOP CITY BITES in asserting any available defenses.
In addition to the other provisions of these Terms, the following provisions apply to users and non-users who interact with the Site outside the United States:
We make no claims that the Site or any Site Content is accessible or appropriate outside of the United States.
You consent to having your personal data transferred to and processed in the United States.
Access to the Site may not be legal by certain persons or in certain countries. If you access the Site from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
If you are located in a country embargoed by the United States, or are on the U.S. Treasury Department’s list of Specially Designated Nationals you will not engage in commercial activities on the Site (such as advertising or payments). You will not use the Site if you are prohibited from receiving products, services, or software originating from the United States.
Paid Services Accounts
Methods of Payment:
To use any special account for which TOP CITY BITES requires payment (“Paid Services Account”), you must provide us with a valid credit card or other forms of cash payment (e.g., PayPal account) to pay for such Paid Services Account. In addition, you agree that we have permission to retain and/or share with financial institutions and payment processing firms (including any institutions or firms we retain in the future) your submitted payment information in order to process your purchase. Depending on where you transact with us, the type of payment method used and where your payment method was issued, your transaction with us may be subject to foreign exchange fees or differences in prices, including because of exchange rates. We do not support all payment methods, currencies, or locations for payment. If the payment method you use with us, such as a credit card, reaches its expiration date and you do not edit your payment method information or cancel your Paid Services Account, you authorize TOP CITY BITES to continue billing your credit card and/or PayPal account and you remain responsible for any uncollected amounts. All applicable taxes are calculated based on the billing information you provide us at the time of purchase.
If you sign up online for a Paid Services Account with a free initial trial period (the “Free Trial”), you must provide TOP CITY BITES with a valid credit card or PayPal account. If you do not cancel your account or downgrade your TOP CITY BITES account within the first 30 days after it was initially created, your credit card or PayPal account will automatically be billed starting on the first day after the Free Trial is over. If you cancel or downgrade your TOP CITY BITES account prior to the beginning of the 31st day, no charges will be put through your credit card or PayPal account.
Subscription Services; Auto-renewal and Cancellation:
If you are paying for a Paid Services Account on a subscription basis, you can choose to pay on a monthly or yearly basis, and your subscription will renew automatically. Subscriptions are billed in advance on a monthly or yearly basis (as per the option chosen when you purchased such services) and are non-refundable for the subscription period they are purchased for. You agree that TOP CITY BITES may process your credit card or PayPal account on each monthly, annual, or other renewal term (based on the applicable billing cycle), on the calendar day corresponding to the first day you subscribed to a paid subscription. If your paid subscription began on a day not contained in a subsequent month (e.g., your service began on January 30 and there is no February 30), TOP CITY BITES will process your payment on the last day of such month. You may elect to cancel your Paid Services Account at any time. If you subscribed to a monthly plan, your Paid Services Account will be terminated, but no credit will be issued for any prepaid fees for your TOP CITY BITES account. If your subscription is on a monthly basis, TOP CITY BITES will issue TOP CITY BITES credits equivalent to the prorated prepaid fees of such paid services on the date of the cancellation. Such credits are non-refundable, but can be used against the purchase of any future TOP CITY BITES services. If you subscribed to a yearly plan, any cancellation will only be effective at the end of the then-current annual billing period and no credits or refunds will be issued to you for prepaid fees.
If any amounts due under this Section 12 are not received by TOP CITY BITES by the due date, then at TOP CITY BITES’ discretion, such charges may accrue late interest at the rate of 12% per year or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. In addition, upon 10 days’ written notice, TOP CITY BITES may suspend your Paid Services Account if TOP CITY BITES does not receive the amounts invoiced hereunder at the expiration of such period.
Taxes and Withholdings:
You are responsible for paying all taxes associated with your Paid Services Account. If TOP CITY BITES has the legal obligation to pay or collect taxes for which you are responsible under this Section, the appropriate amount shall be invoiced to and paid by you, unless you provide TOP CITY BITES with a valid tax exemption certificate authorized by the appropriate taxing authority. Any and all payments by or on account of the compensation payable under this Section shall be made free and clear of and without deduction or withholding for any taxes. If you are required to deduct or withhold any Taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, TOP CITY BITES receives an amount equal to the sum it would have received had no such deduction or withholding been made.
Acknowledgement and Appointment
Venue acknowledges that TOP CITY BITES operates a private subscription membership based mobile app and website that provides certain benefits to its members, including but not limited to access to exclusive content, limited edition merchandise, special events, and promotions at venue establishments. Venue desires to obtain TOP CITY BITES’ services and thereby market and promote itself to TOP CITY BITES members. Venue hereby appoints TOP CITY BITES as its Independent Digital Marketer.
The initial term of this appointment shall be three (3) months, renewed automatically at additional three (3) month increments. The parties may mutually agree to terminate this agreement at any time prior to the end of the initial term. After the initial term, either party may terminate this agreement with fifteen (15) days written notice to the other party. The agreement shall be on a limited exclusivity basis, where TOP CITY BITES is the Venue’s sole Independent Digital Marketer that operates a subscription membership drink app. Notwithstanding the foregoing, the limited exclusivity shall not prevent the Venue from using existing services such as Yelp, FourSquare, OpenTable, etc., or engage in in-house promotional activities to provide service(s) to its customers.
TOP CITY BITES Obligations
TOP CITY BITES agrees to use commercially reasonable efforts to promote and market the Venue Offer to its members, including but not limited to a) inclusion in its mobile app; b) inclusion in its web site; c) one (1) minimum promotional post on a Instagram account owned by TOP CITY BITES during the initial term of the agreement, and additional posts(s) at TOP CITY BITES promotional team’s discretion, d) share Venue specific user demographic and behavior data on a monthly basis, and Venue’s offer redemption data on a daily basis upon request, or provide real-time access to Venue data via TOP CITY BITES Venue extranet when available; e) provide additional advanced marketing and promotional services on a case-by-case basis.
Venue agrees to use commercially reasonable efforts to provide and honor standard TOP CITY BITES member services, including but not limited to a) allow inclusion in the TOP CITY BITES mobile app; b) allow inclusion in the TOP CITY BITES web site; c) provide photos of menu items, venue and logo as requested and allow inclusion in any TOP CITY BITES promotional material to its members; d) allow a limited number of qualified members to redeem a Venue Offer on or before the Offer Expiration Date; e) elect to participate on a case-by-case basis in special TOP CITY BITES promotions to allow additional promotional membership services; f) properly train and educate its wait staff, or allow TOP CITY BITES team to train and educate its wait staff on the usage of the TOP CITY BITES app and website. Notwithstanding the foregoing, the Venue shall have sole discretion and responsibility to enforce its standard entry and service policies for its clients, as well as the enforcement of the purchase of additional food and drinks by TOP CITY BITES members in States where required by law. Being part of the TOP CITY BITES membership or possessing the TOP CITY BITES app does not automatically guarantee entry or service by the Venue by TOP CITY BITES members. Venue may in its sole discretion enforce guidelines for acceptable behaviors, as long as such guidelines are applied to TOP CITY BITES members and non-TOP CITY BITES members alike.
By agreeing to become a participating venue, you give TOP CITY BITES permission to use Venue name, logo, likeness, images, or other publically available information (the “Venue IP”) in connection with TOP CITY BITES product(s) and promotion(s). Notwithstanding the foregoing, any content or material furnished by the Venue including the Venue IP shall be deemed approved for use and shall be solely owned by Venue.
Independent Contractor and Vendor
The parties acknowledge and confirm that there is no relationship of principal to agent, employer to employee or franchisor to franchisee established between the parties. Venue further acknowledges that TOP CITY BITES has its own independently established business which is separate and apart from the Venue’s business. TOP CITY BITES at all times shall be considered an independent contractor with respect to its relationship with Venue. Each party acknowledges that neither this Agreement nor the provision of services set out herein entitle or shall be construed to entitle TOP CITY BITES or Venue to any benefit, privilege or other amenities of employment with the other party.
Any information that Venue obtains concerning TOP CITY BITES, as well as any and all materials, ideas, plans, techniques and accounts, products, business, customers, methods of operation as well as any and all data, summaries, reports or information, whether written or oral, furnished by any party constitute “Confidential Information.” Each party covenants and agrees that none of them will disclose to any third party, or use for that party’s own purposes, any Confidential Information, except:
at the other party’s written direction;
if the information becomes public through no fault of the other party;
as required by law, a subpoena or order or a court or any other governmental agency, and then only to the minimum extent necessary to comply with such law, subpoena or order; or
as may be necessary to perform the requirements of this Agreement.
including, with respect to TOP CITY BITES and Venue, disclosing such Confidential Information to the TOP CITY BITES’ legal and financial advisors as well as the TOP CITY BITES’ manager, to the extent that such individuals need to have knowledge of the Confidential Information, are informed by TOP CITY BITES of the confidential nature of the Confidential Information and, such individuals agree to keep such Confidential Information confidential and not disclose it to any other third parties.
Disclaimer of Warranties:
PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF TOP CITY BITES TO YOU. EACH OF THE SUBSECTIONS BELOW ONLY APPLIES UP TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. NOTHING HEREIN IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE WHICH MAY NOT BE LAWFULLY LIMITED. IF YOU ARE UNSURE ABOUT THIS OR ANY OTHER SECTION OF THESE TERMS, PLEASE CONSULT WITH A LEGAL PROFESSIONAL PRIOR TO ACCESSING OR USING THE SITE. BY ACCESSING OR USING THE SITE, YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO THESE TERMS, INCLUDING THIS SECTION. YOU ARE GIVING UP SUBSTANTIAL LEGAL RIGHTS BY AGREEING TO THESE TERMS.
THE SITE IS MADE AVAILABLE TO YOU ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS, WITH THE EXPRESS UNDERSTANDING THAT TOP CITY BITES MAY NOT MONITOR, CONTROL, OR VET SITE CONTENT. AS SUCH, YOUR USE OF THE SITE IS AT YOUR OWN DISCRETION AND RISK. TOP CITY BITES AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, THIRD-PARTY CONTENT PROVIDERS, AND LICENSORS (COLLECTIVELY, “PROVIDERS”) MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, APPROPRIATENESS, ACCURACY, OR RELIABILITY OF THE SITE, ITS SAFETY OR SECURITY, OR THE SITE CONTENT. ACCORDINGLY, TOP CITY BITES AND ITS PROVIDERS ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE SITE’S INOPERABILITY, UNAVAILABILITY OR SECURITY VULNERABILITIES OR FROM YOUR RELIANCE ON THE QUALITY, ACCURACY, OR RELIABILITY OF SITE CONTENT, INCLUDING BUSINESS LISTINGS, RATINGS, REVIEWS (INCLUDING THEIR CONTENT, ORDER, AND DISPLAY), OR METRICS FOUND ON, USED ON, OR MADE AVAILABLE THROUGH THE SITE. WE DO NOT WARRANT WHETHER UNAUTHORIZED THIRD PARTIES MAY DEFEAT OUR SECURITY MEASURES OR USE YOUR PERSONAL INFORMATION FOR IMPROPER PURPOSES. NO STATEMENTS MADE TO THE CONTRARY BY ANY PARTY OR AGENT OF TOP CITY BITES SHALL CREATE A WARRANTY. YOU ASSUME THE ENTIRE COST OF ALL SERVICING, REPAIR, OR CORRECTION OF THE SITE, YOUR HARDWARE, AND OTHER SOFTWARE
TOP CITY BITES MAKES NO CLAIMS OR PROMISES WITH RESPECT TO ANY THIRD PARTY, SUCH AS THE BUSINESSES OR ADVERTISERS LISTED ON THE SITE OR THE SITE’S USERS. ACCORDINGLY, THE TOP CITY BITES ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE FROM THEIR ACTIONS OR OMISSIONS, INCLUDING, FOR EXAMPLE, IF ANOTHER USER OR BUSINESS MISUSES YOUR CONTENT, IDENTITY OR PERSONAL INFORMATION, OR IF YOU HAVE A NEGATIVE EXPERIENCE WITH ONE OF THE BUSINESSES OR ADVERTISERS LISTED OR FEATURED ON THE SITE. YOUR PURCHASE AND USE OF PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES THROUGH THE SITE IS AT YOUR OWN DISCRETION AND RISK.
TOP CITY BITES EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES AS TO THE PRODUCTS OR SERVICES OFFERED BY BUSINESSES LISTED ON THE SITE, AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED TO YOU BY A REPRESENTATIVE OF TOP CITY BITES SHALL CREATE A REPRESENTATION OR WARRANTY. TOP CITY BITES DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SITE, INTERFERENCE WITH YOUR HARDWARE, INTERFERENCE WITH YOU BUSINESS OR LIFE, OR ERROR-FREE OPERATION. WE DO NOT WARRANT WHETHER UNAUTHORIZED THIRD PARTIES MAY DEFEAT OUR SECURITY MEASURES OR USE YOUR PERSONAL INFORMATION FOR IMPROPER PURPOSES. NO STATEMENTS MADE TO THE CONTRARY BY ANY PARTY OR AGENT OF TOP CITY BITES SHALL CREATE A WARRANTY. YOU ASSUME THE ENTIRE COST OF ALL SERVICING, REPAIR, OR CORRECTION OF THE SITE, YOUR HARDWARE, AND OTHER SOFTWARE.
YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SITE, RELATED SERVICES, OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE SITE.
Limitation of Liability:
TOP CITY BITES SHALL NOT BE LIABLE FOR ANY PERSONAL INJURY OR INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR DAMAGE TO HARDWARE OR SOFTWARE, REGARDLESS OF THE THEORY OF LIABILITY. IN NO EVENT SHALL THE TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED TWENTY UNITED STATES DOLLARS.
Indemnification, Defense, and Hold Harmless:
YOU AGREE to INDEMNIFY, DEFEND, and HOLD HARMLESS TOP CITY BITES and its agents, members, officers, directors, employees, partners (including, without limitation, its wireless carrier partners), subsidiaries, and other affiliated companies, and their employees, contractors, agents, officers and directors from and against any and all claims, suits, demands, causes of action, proceedings, orders, decrees, and judgments for bodily injury, wrongful death, loss of services, property damage, and/or any other reason, and from and against any and all costs and expenses, including attorney’s fees, which may arise out of your use of the Site.
Claims Must Be Filed Within One Year:
To the extent permitted by law, any claim or dispute relating to the Terms or the Site must be filed within one year. The one-year period begins on the date when the claim or dispute first could be filed. Any claim or dispute that is not filed within that time is permanently barred. This section applies to users and their successors and assigns. It also applies to us and our successors and assigns.
Dispute Resolution and Arbitration:
In the interest of resolving disputes between you and TOP CITY BITES in the most expedient and cost effective manner, you and TOP CITY BITES agree that any and all disputes arising in connection with these Terms shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND TOP CITY BITES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Notwithstanding subsection 18(A), we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief or other provisional relief in aid of arbitration from a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
Any arbitration between you and TOP CITY BITES will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting TOP CITY BITES.
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). TOP CITY BITES’ address for Notice is: TOP CITY BITES, Inc., 2621 Meade Court, Ann Arbor, Michigan 48105. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or TOP CITY BITES may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or TOP CITY BITES shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, TOP CITY BITES shall pay you (i) the amount awarded by the arbitrator, if any, (ii) the last written settlement amount offered by TOP CITY BITES in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.00, whichever is greater.
In the event that you commence arbitration in accordance with these Terms, TOP CITY BITES will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Miami, Florida, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse TOP CITY BITES for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No Class Actions:
YOU AND TOP CITY BITES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and TOP CITY BITES agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
In the event that TOP CITY BITES makes any future change to this arbitration provision (other than a change to TOP CITY BITES’ address for Notice), you may reject any such change by sending us written notice within 30 days of the change to TOP CITY BITES’ address for Notice, in which case your account with TOP CITY BITES shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
If Subsection 18(F) is found to be unenforceable or if the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 18 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 17 shall govern any action arising out of or related to these Terms.
We reserve the right to modify, update, or discontinue the Site or any component thereof at our sole discretion, at any time, for any or no reason, and without notice or liability.
By providing TOP CITY BITES with your e-mail address, you agree to allow us to send you e-mails and use your e-mail address to send any notices required by law in lieu of communication by postal mail. We may also use your e-mail address or mobile phone number to send you messages, and you are solely responsible for costs associated with those communications.
Should any part of these Terms be rendered or declared invalid by a court of competent jurisdiction, such invalidation of such a part or portion will be construed as narrowly as possible and does not invalidate the remaining portions of these Terms, which shall remain in full force and effect.
Any failure on our part to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
The Terms, and any rights or obligations hereunder, are not assignable, transferable or sublicensable by you except with our prior written consent, but may be assigned or transferred by us without restriction. Any attempted assignment by you shall violate these Terms and be void.
Electronic Communications and Electronic Signatures:
You agree to be bound by any affirmation, assent, or agreement you transmit through this Site, including but not limited to any consent you give to receive communications from TOP CITY BITES solely through electronic transmission. You agree that when you click on “I agree,” “I consent,” or other similarly worded “button” or entry field with your computer, mobile device, tablet, or other device your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature.
Questions & Contact Information
If you should have any questions about these Terms, the Site, or TOP CITY BITES, you may contact us at [email protected]