1.2. If you are accessing or using the Premium Membership Services on behalf of a business or third party, you represent and warrant that you have the authority to do so and to bind that business or third party to these Premium Membership Terms and Conditions, and your agreement to these Premium Membership Terms and Conditions will be treated as their respective agreement. In this event, TDA may hold you responsible for violations of this agreement by that business or third party, and “you,” “your” and “party” will also refer and apply to that business or third party.
2. Premium Membership Services
2.1. The Premium Membership Services are designed to help you make business connections and otherwise promote your business. You are responsible for (i) all postings and content submitted by or on your behalf through the Premium Membership Services or otherwise to TDA, including but not limited to service requests, case studies, client reviews, articles, creatives, trademarks, images, URLs and pixels that comprise the postings or content therefor (collectively, your “Postings”); and (ii) all content and property to which Postings may direct viewers, as well as redirects (“Destinations”).
There are a number of different Premium Membership packages on Top Digital Agency. In general, you can register for (i) a client account (“Client Account”) in order to search agencies or leave a request for services or (ii) an agency account (“Agency Account”) in order to showcase the work that you do and pitch for business. There are multiple levels of account within Client Accounts and Agency Accounts. For purposes of these Premium Membership Terms and the User Agreement, Client Accounts and Agency Accounts are each Premium Memberships.
2.2. When you purchase a Premium Membership, you are allocated TDA Coins according the package that you have purchased. TDA Coins enable you to use different features of our Premium Membership Services according to your preferences.
2.3. You are responsible for any activity conducted through your account, including any purchases made or charges incurred. You agree that TDA may share information about your purchases and use of the Premium Membership Services. You may not resell or transfer access to the Premium Membership Services to any other party.
2.4. All TDA Coins purchased through Premium Membership packages will expire 365 days after purchase. It is your responsibility to use TDA Coins as you see fit and within the 365 day period. We will not reimburse you for any TDA Coins that are not used within 365 days of purchase. For more information about TDA Coins and our Premium Membership packages, see Membership & Pricing.
2.5. Without limiting the prohibitions in the User Agreement or any other applicable agreement, you agree that you will not, and you will not enable or authorize any third party, by virtue of the Postings, Destinations, or use of the Premium Membership Services, to:
2.5.1. Create Postings that intentionally misrepresent the work or expertise that you require or that you have carried out.
2.5.2. Engage in illegal or fraudulent conduct.
2.5.3. Except as expressly authorized by TDA in writing, use any automated means or form of scraping or data extraction to access, modify, download, query or otherwise collect information from TDA.
2.5.4. Except as expressly authorized by TDA in writing, copy, modify or create derivative works of the Premium Membership Services or any related technology.
2.5.5. Create Postings that contain malware, spyware or any other malicious code or otherwise interfere with the operation of the Premium Membership Services or any device or system or breach or circumvent any security measure of TDA or a third party.
2.6. TDA may, in its sole discretion, modify, or terminate any part or all of the Premium Membership Services or suspend your ability to use the Premium Membership Services. TDA may reject or remove any Posting at any time for any reason, regardless of whether or not such Posting was previously accepted or served.
2.7. You acknowledge, agree, and understand that TDA is not a party to the relationship or any dealings between you or any other user of TDA. Without limitation, you are solely responsible for (a) ensuring the accuracy and legality of any content on TDA, (b) determining the suitability of other users for any contract or business relationship (such as any interviews, vetting, background checks, or similar actions), (c) negotiating, agreeing to, and executing any terms or conditions of such relationship, (d) performing services, or (e) paying for any business or organization that you contract as a result of contact or searches on TDA.
2.8. You further acknowledge, agree, and understand that you are solely responsible for assessing whether to enter into a contract with another Member and for verifying any information about another Member. TDA does not make any representations about or guarantee the truth or accuracy of any Member’s content, service requests or use of TDA; does not verify any feedback or information provided by Members; and does not vet or otherwise perform background checks on Members. You acknowledge, agree, and understand that TDA does not, in any way, supervise, direct, control, or evaluate Members or their work and is not responsible for any project, terms or work done by any Member.
2.9. TDA makes no representations about and does not guarantee, and you agree not to hold TDA responsible for, the quality, safety, or legality of any Member; the qualifications, background, or identities of Member; the ability of Members to deliver or pay for services; content, statements or posts made by Members; or the ability or willingness of a Member to actually complete a transaction.
2.10. You also acknowledge, agree, and understand that Members are solely responsible for determining, and have the sole right to determine, which projects to accept; the time, place, manner, and means of providing any services; the type of services they provide; and the price they charge for their services or how that pricing is determined or set. You further acknowledge, agree, and understand that: (i) you are not an employee of TDA, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance); (ii) TDA will not have any liability or obligations for any acts or omissions by you or other Members; (iii) TDA does not, in any way, supervise, direct, or control any Member; does not impose quality standards or a deadline for completion of any services; and does not dictate the performance, methods or process Members use to perform services.
2.11. Nothing in this Agreement is intended to prohibit or discourage (nor should be construed as prohibiting or discouraging) any Member from engaging in any other business activities or providing any services through any other channels they choose. Members are free at all times to engage in such other business activities and services and are encouraged to do so.
3.1. You may be offered more than one billing option when you purchase Premium Membership Services. You agree to pay on the basis and at the rate selected when your purchase of Premium Membership Services was submitted through your account (“Rate”). TDA will charge your payment method at the applicable Rate on a yearly basis unless you cancel your Premium Membership. Please Contact Us to cancel your Premium Membership. If your initial Rate contained a discount on normal pricing, this discount will not continue to apply in future billing cycles. All amounts paid are non-refundable.
3.2. TDA is not responsible for click fraud, technological issues or other potentially invalid activity by third parties that may affect your Premium Membership. If you suspect some unauthorized activity has occurred in relation to your account, please Contact Us.
3.3. Unless you change or remove your payment method, TDA may store and update (e.g., upon expiration) your payment method for use with subsequent campaigns, orders and purchases submitted through your account.
4. Intellectual Property Rights and Privacy
4.1. You grant to TDA a non-exclusive, worldwide, royalty-free, sublicensable and transferable license to use, copy, modify, distribute and publish your Postings in connection with the performance of the Premium Membership Services (including for marketing and promotional purposes). You represent and warrant that you own or have all necessary rights (including intellectual property rights) to your Postings (including to grant the license above).
4.2. If you choose to provide suggestions or feedback to TDA about Premium Membership Services, you agree that TDA can (but does not have to) use and share such feedback for any purpose without compensation to you. TDA’s reserves all of its intellectual property rights in the Premium Membership Services as further described in the User Agreement.
5. Disclaimer of Warranties
5.1. To the extent allowed under law, in addition to disclaiming all implied warranties and other warranties as provided in the User Agreement, TDA and its affiliates disclaim all warranties regarding the Premium Membership Services, including but not limited to any warranty (a) about the accuracy of any Postings or content on the TDA site (including but not limited to Agency profiles, case studies, client references, and other content); (b) concerning the results of your Postings and other uses of the Premium Membership Services; (c) that the Premium Membership Services will be uninterrupted or error-free; or (d) that the Premium Membership will generate business or connections for you or (e) that any connections or relationships developed as a result of your use of TDA will generate business, be profitable or successful.
6.1. Notwithstanding any review or approval of any Posting by TDA, you agree to indemnify TDA and its affiliates (as defined in the User Agreement), and hold TDA and its affiliates harmless from any damages, losses and costs (including, but not limited to, reasonable attorneys’ fees) related to third party claims or proceedings, arising out of or related to your Postings, Destinations, use of the Premium Membership Services, any business created through use of the Premium Membership Services, and breach of these Premium Membership Terms and Conditions.
7. Limitation of Liability
7.1. To the fullest extent permitted by law, neither party, including its respective affiliates, will be liable to the other in connection with these Premium Membership Terms and Conditions for lost profits or lost business opportunities, loss of data, or any indirect, incidental, consequential, special or punitive damages.
7.2. Neither party, including its respective affiliates, will be liable to the other in connection with these Premium Membership Terms and Conditions for an amount that exceeds the total annual fee paid to TDA during the year period before the event giving rise to the liability.
7.3. These limitations of liability do not apply to a party’s (i) payment; confidentiality or indemnification obligations; (ii) liability for fraud, gross negligence or intentional misconduct; (iii) liability for death or personal injury; or (iv) violation of the other party’s intellectual property rights.
8.1. If you cancel your Premium Membership and return to a free account, you may retain your profile and certain other data. However, you will lose all TDA Coins that you may have accrued as well as access to premium features.
8.2. To cancel your Premium Membership, please Contact Us.
8.3. More information about cancelling your Premium Membership:
8.3.1. To avoid getting charged for the next billing period, you need to cancel at least ten days before your next billing date.
8.3.2. Cancellation will end billing and remove your future access to TDA Coins and premium features at the end of your current billing cycle.
8.3.3. It may be possible in some instances to move to a lower Premium Membership level. To adjust your Premium Membership level, please Contact Us.
9.1. The provisions of the User Agreement relating to feature-specific terms, termination, interpretation, notice and assignability apply to these Premium Membership Terms and Conditions and the Premium Membership Services. Neither party relies on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether a party to these Premium Membership Terms and Conditions or not) relating to the subject matter of these Premium Membership Terms and Conditions, other than as stated in these Premium Membership Terms and Conditions. These Premium Membership Terms and Conditions do not create a partnership, agency relationship, employer relationship or joint venture between the parties.
9.2. TDA may change the terms of these Premium Membership Terms and Conditions by notice to you (for example, by a notice displayed in the Premium Membership Services, email or other contact method), and both parties agree that changes cannot be retroactive. If you do not agree to these changes, you must stop using the Premium Membership Services. The following provisions of these Premium Membership Terms and Conditions survive its termination: Sections 2 through 4, as well as Sections 6 through 9.
9.3. The TDA entity entering into these Premium Membership Terms and Conditions with you is Top Digital Agency Inc., a corporation registered in the State of Delaware with registered address: 1209 Orange Street, in the City of Wilmington, County of New Castle, 19801. These Premium Membership Terms and Conditions are governed by the laws of the State of California. Each party irrevocable submits that any action or proceeding (including those arising from non-contractual disputes or claims) related to these Premium Membership Terms and Conditions will be brought in a federal court in the Northern District of California. The prevailing party in any litigation may seek to recover its legal fees and costs.