THANK YOU FOR USING TopYa!
TopYa! is a service and tool that players, coaches and parents use to help players develop skills and passion for sports, physical activities and other skills, to express and develop their creativity in these activities, to inspire others and be inspired by others through sharing their skill videos and accomplishments, and to encourage skill challenges with friends, teammates, members of their organizations, and other players throughout the world.
I. Using TopYa!
A. Registering an Account. You may use our Service only if you are legally able to form a binding contract with TopYa!, and only in compliance with these Terms and all applicable laws. When you create your account or authorize an account on behalf of your child, you must provide us with accurate and complete information. Failure to provide accurate information may limit the functions and features available and the termination of your account. You may not:
1. Select or use a username of another person with the intention of impersonating that person;
2. Use a username of anyone else without authorization;
3. Use a username in violation of the intellectual property or other legal rights of any person; or
4. Use a username that TopYa! considers, in its sole subjective discretion, inappropriate.
B. Children Under 13. Use or access by anyone under the age of thirteen (13) is permitted but the social features require acknowledgement by your Sponsor—such as parent(s), legal guardian(s) or an adult coach who has received written permission from your parent(s) or legal guardian to use the Service. We reserve the right to implement any type of verification, including your request to enter a credit card or other information to verify your identity, prior to permitting the creation of an account for a child under thirteen (13) years of age in compliance with the Children’s Online Privacy Protection Act (COPPA). Failure to do so will result in the immediate termination of your account.
C. Our License to You. Subject to these Terms, the Policies and your registration of an account, we grant you a limited, non-exclusive, non-transferable, and revocable license to use our Service for personal educational purposes on your own behalf. If you want to use our Service for purposes beyond your own use, you must agree to our separate Marketing Agreement or Content Provider Agreement. Portions of our Service include software that may be downloaded to your computer, phone, tablet, or other device. You agree that we may automatically upgrade those portions of the Service, and these Terms will apply to such upgrades. You do not have the permission to distribute content from the Service through any medium unless TopYa! makes available the means for such distribution through functions offered by the Service.
II. Your Content
A. Sharing Your User Content and Information. The Service allows you to post content, including videos, photos, graphics, sounds, audiovisuals, comments, and other materials. Anything that you post or otherwise make available on our Service, or that your child (if applicable) makes available on the Service, or that is posted on our social media sites is referred to as "User Content.” You retain all rights in, and are solely responsible for, the User Content you create and share through our Service. You further agree that the User Content you submit to the Service will not contain third party copyright protected material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant TopYa! all of the license rights granted herein. Please see our Digital Millennium Copyright Act notice contained within the Policies.
B. License to your User Content. Because one of the purpose of TopYa! is to share and promote the teaching and development of skills and accomplishments, you grant TopYa! (and its successors and affiliates) a worldwide, irrevocable, permanent, nonexclusive, royalty-free, transferable, sub-licensable, worldwide license to use, store, display, reproduce, modify, create derivative works, perform, and distribute your User Content in connection with the Service and TopYa!’s (and its successors' and affiliates') business, including without limitation, for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels in perpetuity. We reserve the right to remove User Content for any reason including User Content that we believe violates these Terms or our policies. You specifically hereby grant each user of the Service a non-exclusive license to access your User Content through the Service and to use, reproduce, distribute, display and perform such Content as permitted through the functions of the Service. The above licenses are perpetual and irrevocable. You agree that all User Content shall comply with the Policies.
C. How Long do we Keep your Content. Following termination or deactivation of your account or removal of any User Content, we may retain your User Content for a commercially reasonable period of time for backup, archival, or audit purposes and for any other purposes granted to us under these Terms. Furthermore, other users that you have allowed to receive your User Content when posting (such as a coach or fellow player) may retain and continue to use, store, display, and perform, any of your User Content that other users have stored in their respective accounts. Additionally, derivative works created with your User Content may continue to be used for TopYa!’s business following the termination or deactivation of your account.
D. Feedback you Provide. We value hearing from our users, and are always interested in learning about ways we can make TopYa! more awesome. If you choose to submit comments, ideas or feedback, you agree that we are free to use them without any restriction or compensation to you.
III. Copyright Policy. TopYa! complies with the Digital Millennium Copyright Act. In the event that you feel a work of yours has been reposted or reused in violation of copyright law, please see our DMCA Notice contained in the Policies.
IV. Security. We care about the security of our users and ask that you keep your username and password in a safe place. We are compliant with General Data Protection Regulation (GDPR). While we work to protect the security of your User Content and account, we cannot guarantee that unauthorized third parties will not be able to defeat our security measures. Please notify us immediately of any compromise or unauthorized use of your account. You are responsible for any activity that occurs through your account or any accounts of your children that you have authorized and you agree you will not sell, transfer, license or assign your account, username, or any account rights.
VI. Contests, Sweepstakes, and Other Activities. From time to time, TopYa! or its suppliers, advertisers, customers or partners may conduct promotions on or through the Service, including without limitation auctions, contests, sweepstakes and electronic postcards ("Promotions"). Each such Promotion may have additional terms, conditions and rules which will be posted or otherwise made available to you and, for purposes of each Promotion, will be deemed incorporated into and form a part of these Terms of Service (the "Rules"). If any conflict arises between these Terms of Service and the Rules, the Rules shall govern for purposes of your participation or involvement in the Promotion to which the Rules relate.
VII. Termination. We may terminate or suspend this license and your access at any time, with or without cause or notice to you. Upon termination, you continue to be bound by these Terms. Notwithstanding the foregoing, in the event that you have a paid subscription, we will suspend your account for cause following written notice and an opportunity to cure such breach. If such breach remains uncured after ten days following transmission of such notice, we will terminate your account without refund. In the event you are able to cure such breach to our satisfaction, at our sole subjective discretion, we will reinstate your account.
VIII. Indemnity. If you use our Service for commercial purposes in violation of these Terms, as determined in our sole subjective discretion, you agree to indemnify and hold harmless TopYa! and its officers, directors, employees, affiliates and agents, from and against any claims, suits, proceedings, disputes, demands, liabilities, damages, losses, costs and expenses, including, without limitation, reasonable legal and accounting fees (including costs of defense of claims, suits or proceedings brought by third parties), in any way related to (a) your access to or use of our Service, (b) your User Content, or (c) your breach (or a breach by your child, if applicable) of any of these Terms.
IX. Disclaimers. By accessing the Service, you understand that physical activities, in any form, carry the risk of injury. You understand that it is your responsibility to know your physical and mental capabilities for activities you chose to do. You are responsible to ensure that, by participating in and using the Service, you will not exceed your limits or skill levels while using the Service. You shall select the appropriate level of activity for your skills and abilities, as well as for any mental or physical conditions or limitations you may have. From time to time, the Service may suggest physical adjustments or the use of equipment, but you shall be solely responsible to determine if any such suggested adjustment or equipment is appropriate for your level of ability or physical or mental condition.
You understand that any content accessible through the Service is provided for informational, educational, or entertainment purposes only. Such content is not intended to be a substitute for individual training. Certain of the activities demonstrated in the Service and certain specialized skills may require the guidance of an individual coach. You accept the risks involved if you try to use these techniques without supervision. You acknowledge that certain activities shown in the Service are inherently dangerous, and that you will use these videos at your own risk. You are responsible for researching the appropriate safety gear to wear.
Certain demonstrations, stunts and tricks contained in the Service are performed by professionals, so for your safety and the protection of those around you, do not attempt, or attempt to recreate or re-enact, any activity performed in the Service that you have not been properly trained to complete. Serious injury and death can result from engaging in such activities.
Certain activities demonstrated through the Service may be stressful on the body. Accordingly, you are urged and advised and shall take steps to seek the advice of a physician before beginning any physical activity regimen, routine, or program or using any suggested equipment shown in the Service. You are never required to perform any suggestions and comments within the Service relating to physical activity, poses, moves or the use of equipment. If you do so, then you are conducting such activities voluntarily and at your election. You shall not construe anything contained in the Service as any form of any medical advice.
You expressly waive and release any claim that you may have at any time for any injury of any kind related to your use of or participation in the Service against TopYa!, or any person or entity involved or in any way associated with TopYa!, including, without limitation, its directors, officers, principals, coaches, independent contractors, employees, agents, contractors, affiliates, and representatives.
X. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TopYa! SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (A) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICE; (B) ANY CONDUCT OR CONTENT OF ANY THIRD-PARTY ON THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; OR (C) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT. IN NO EVENT SHALL TOPYA!'S AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE PRODUCTS EXCEED ONE HUNDRED U.S. DOLLARS (U.S. $100.00).
XI. Arbitration. For any dispute you have with TopYa!, you agree to first contact us and attempt to resolve the dispute with us informally. If we have not been able to resolve the dispute with you informally, we each agree to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to these Terms by binding arbitration by the American Arbitration Association ("AAA") under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys' fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to the Service. EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION ABOVE, YOU AGREE THAT DISPUTES BETWEEN YOU AND TOPYA! WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. ALL SUCH ARBITRATION PROCEEDINGS SHALL OCCUR EXCLUSIVELY IN DENVER, COLORADO.
You may opt out of this agreement to arbitrate. If you do so, neither you nor TopYa! can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing within 30 days of the date that you first became subject to this arbitration provision. You must use this address to opt out: TopYa! Sports P.O. Box 200758 Denver, CO 80220. You must include your name and residence address, the email address you use for your account, and a clear statement that you want to opt out of this arbitration agreement.
If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This arbitration agreement will survive the termination of your relationship with TopYa!.
XII. DMCA Terms. In accordance with the Digital Millennium Copyright Act (“DMCA”), TopYa! will respond expeditiously to claims of copyright infringement committed using the TopYa! website or application (the "Products" or “Service”) that are reported to our Designated Copyright Agent, identified in the sample notice below.
If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringement of your copyrights that are taking place on or through the Service by completing the following DMCA Notice of Alleged Infringement (“Notice”) and delivering it to our Designated Copyright Agent. Please see 17 USC 512(c)(3) for further details. Upon receipt of the Notice as described below, we will take all appropriate action, including, if appropriate, removal of the challenged material from the Service. The Notice must include the following: (1) identify the copyrighted work that you claim has been infringed; (2) identify (i) the material that you claim is infringing information reasonably sufficient to permit us to identify the material, and (ii) the reference or link, to the material or activity that you claim to be infringing; (3) provide your mailing address, telephone number, and, if available, email address; (4) include both of the following statements in the body of the Notice: "I hereby state that I have a good faith belief that the disputed use of the copyrighted material or reference or link to such material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)." and "I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed." And (5) provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed to:
TopYa! Sports, Att. Designated Copyright Agent, P.O. Box 200758 Denver, CO 80220 with a copy via email to firstname.lastname@example.org.
If any User Content posted by you has been removed under a DMCA Notice and you believe such materials were not infringing or that you had the authorization from the copyright owner or its agent or pursuant to the law to post and use the materials, you may send a counter-notice to the Designated Copyright Agent at the address above, which counter-notice shall contain the following information: (i) identification of the User Content that has been removed and the location at which the material appeared before it was removed, (ii) the following statement “I have a good faith believe that the User Content was removed or disabled as a result of mistake or misidentification of the User Content”, (iii) your name, address, telephone number and email address, your signature and the following statement “I consent to the Jurisdiction of the federal court in Denver, Colorado and I will accept service of process from the person who provided the original Notice that alleged infringement.” A copy of the counter-notice may be sent to the original complaining parting providing such complaining party 10 business days in which to respond or otherwise TopYa! shall have the right to replace the removed User Content.
XIII. Governing Law and Jurisdiction. These Terms shall be governed by the laws of the State of Colorado, without respect to its conflict of laws principles. We each agree to submit to the sole and exclusive personal jurisdiction of a state court located in Denver County, Colorado or the United States District Court for Colorado, for any actions not subject to Section XI (Arbitration), in which case such Arbitration proceedings shall also be conducted in Denver, Colorado. Our Service is controlled and operated from the United States, and we make no representations that they are appropriate or available for use in other jurisdictions.
XIV. General Terms.
A. Notification Procedures and changes to these Terms. We reserve the right to determine the form and means of providing notifications to you, and you agree to receive legal notices electronically if we so choose. We may revise these Terms from time to time and the most current version will always be posted on our website. Please review the Terms of Service periodically. If a revision, in our sole discretion, is material, we will notify you by sending a notice to the email that you used when registering your account or through a notification in the Service. By continuing to access or use the Service after revisions become effective, you agree to be bound by the revised Terms. If you do not agree to the new terms, please stop using the Service.
B. Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by TopYa! without restriction. Any attempted transfer or assignment by you in violation hereof shall be null and void.
C. Entire Agreement/Severability. These Terms, together with the Policies and any amendments and any additional agreements you may enter into with us in connection with the Service, shall constitute the entire agreement between you and TopYa! concerning the Service. If any provision of these Terms is deemed invalid, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect.
D. No Waiver. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
E. Questions or Concerns? Please contact us at the following email: terms@TopYa.com, Tel: 303.222.0038 or mail us at the following address: TopYa! Sports, P.O. Box 200758 Denver, CO 80220 and we will endeavor to respond to any questions or concerns promptly.
This Terms and Conditions of Service was last updated on October 16, 2017.