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Top Modelo Inc. Terms of Use Agreement

Top Modelo Inc. ("TM" or "we") operates www.TopModelo.com (the "Site"), which is a content hosting and sharing service that allows Users (as defined in the following paragraph) to store images and videos and share them across the internet and create unique personal profiles online. The services offered by TM include the Site, content (including, without limitation, images, video and accompanying audio) hosting and sharing on the Site and third party sites, applications and services, content editors, links to partner providers, printing and other photographic merchandise, TM APIs, and any other features, content, mobile services, TM branded URLs or applications offered from time to time by TM in connection with TM’s business (collectively, the "TM Services"). The TM Services are hosted in the United States.

This Terms of Use Agreement ("Agreement") sets forth the legally binding terms for your use of the TM Services. Use of the Site is also governed by the TM Privacy Policy, which is incorporated into this Agreement by this reference. By using the TM Services, you agree to be bound by this Agreement, whether you are a "Visitor" (which means that you simply browse or use the Site, including through a mobile device, or otherwise use the TM Services without being registered) or you are a "Member" (which means that you have registered with TM). The term "User" refers to a Visitor or a Member. You are only authorized to access this Site or to use the TM Services, including materials and services contained in the Site (regardless of whether your access or use is intended) if you agree to abide by all applicable laws and the terms of this Agreement. Please read this Agreement carefully and save it. If you do not agree to be bound by this Agreement and to follow all applicable laws, you should leave the Site and discontinue use of the TM Services immediately. If you wish to make use of the TM Services, read this Agreement and reaffirm your acceptance during the registration process.

This Agreement includes TM's policy for acceptable use of the TM Services and Content (as defined in Section 6.1 below) posted on or through the TM Services and your rights, obligations and restrictions regarding your use of the TM Services and Content posted on or through the TM Services. In order to participate in certain TM Services, you may be notified that you are required to download software or content and/or agree to additional terms and conditions from TM. Unless otherwise provided by the additional terms and conditions applicable to the TM Services in which you choose to participate, those additional terms are hereby incorporated into this Agreement. You may receive a copy of this Agreement by emailing us at: support@topmodelo.com, Subject: Terms of Use Agreement.

TM may modify or amend this Agreement without notice at any time and such modification will be effective upon posting by TM on the Site. Your continued use of the TM Services after TM posts a revised Agreement signifies your acceptance of the revised Agreement. It is therefore important that you review this Agreement regularly to ensure you are updated as to any changes.

Please choose carefully the information you post on or through the TM Services and that you make available directly or indirectly to other Users. Your TM profile and any Content that you upload to TM may not include any form of Prohibited Content, as outlined in Section 8 below. Despite this prohibition, information, materials, products or services provided by other TM Users (for instance, in their profile or images/videos) may, in whole or in part, be unauthorized, impermissible or otherwise violate this Agreement, and TM assumes no responsibility or liability for this material. If you become aware of misuse of the TM Services by any person, please email abuse@topmodelo.com and include in your email a URL to the material in question.

TM reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including, without limitation, descriptions, comments, images or videos) by you, or to deny, restrict, suspend, or terminate your access to all or any part of the TM Services at any time, for any or no reason, with or without prior notice or explanation, and without liability. TM expressly reserves the right to remove any or all of your images, videos, account and profile and/or to deny, restrict, suspend, or terminate your access to all or any part of the TM Services if TM determines, in its sole discretion, that you have violated this Agreement or pose a threat to TM and/or its Users.

1. Eligibility. Use of the TM Services and/or registration to be a Member for the TM Services ("Membership") is void where prohibited. By using the TM Services, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 14 years of age or older; and (d) your use of the TM Services does not violate any applicable law or regulation.

2. Term. This Agreement, and any posted revision to this Agreement, shall remain in full force and effect while you use the TM Services. You may terminate your Membership at any time, for any reason, by following the instructions on the account options page. TM may terminate your Membership at any time, without warning for any or no reason, with or without prior notice or explanation, and without liability. Even after Membership and/or your use of the TM Services is terminated, this Agreement will remain in effect in its entirety.

3. Fees. Members are limited to one free account per Person. “Person” means any individual, corporation, limited liability company, partnership, firm, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Body or other entity, and includes any other Person or Persons that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person. You may also upgrade to a "PRO" account or to a commercial level account and receive TM Services in exchange for paying certain fees, in which case you are entitled to one free account (in addition to one PRO or commercial level account) per Person. Free and PRO TM accounts are solely for your own personal use and benefit. With a commercial level account, you may utilize the TM Services for certain commercial purposes. In all cases, you are limited to the file size, bandwidth, and storage limitations related to your account level. Notwithstanding the above, you acknowledge that TM reserves the right to charge for any portion of the TM Services and to change its fees (if any) from time to time in its discretion. If TM terminates your Membership because you have breached this Agreement, you shall not be entitled to a refund of any unused portion of fees or payments (if any), and you will lose all access to any Content that you posted on or through the TM Services.

4. Password. When you sign up to become a Member, you will also be asked to choose a password. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the account, username, or password of another Member at any time or to disclose your password to any third party. You agree to notify TM immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use of your account.

5. Use by Users. The TM Services are for the personal use of Users and may be used for promotional purposes as well, but direct commercial endeavors may only be used under your commercial level account (if you have one) or if such endeavors are specifically endorsed or authorized by TM. TM reserves the right to remove unauthorized commercial content in its sole discretion. Illegal and/or unauthorized use of the TM Services, including collecting usernames, user id numbers, and/or email addresses of Users by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the Site, or employing third-party promotional sites or software to promote profiles for money, is prohibited. Commercial advertisements, affiliate links, and other forms of unauthorized solicitation may be removed from images, videos and/or Member profiles without notice or explanation and may result in termination of Membership privileges. The TM Services make it possible to post content hosted on TM to third party web sites. However, pages on other web sites that display content hosted on TM must provide a link from each photo or video back to its page on TM. TM reserves the right to take appropriate legal action for any illegal or unauthorized use of the TM Services.

6. Proprietary Rights in Content on TM.

o 6.1 TM does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, "Content") that you post on or through the TM Services. By displaying or publishing ("posting") any Content on or through the TM Services, you hereby grant to TM and other users a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content marked "private" will not be distributed outside the TM Services. TM and/or other Users may copy, print or display publicly available Content outside of the TM Services, including without limitation, via the Site or third party websites or applications (for example, services allowing Users to order prints of Content or t-shirts and similar items containing Content). After you remove your Content from the TM Website we will cease distribution as soon as practicable, and at such time when distribution ceases, the license to such Content will terminate. If after we have distributed your Content outside the TM Website you change the Content’s privacy setting to "private," we will cease any further distribution of such "private" Content outside the TM Website as soon as practicable. Some of the TM Services are supported by advertising revenue and may display advertisements and promotions, and you hereby agree that TM may place such advertising and promotions on the TM Services or on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.

o 6.2 You represent and warrant that: (i) you own the Content posted by you on or through the TM Services or otherwise have the right to grant the license set forth in this section, (ii) the posting and use of your Content on or through the TM Services does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any person, and (iii) the posting of your Content on the Site does not result in a breach of contract between you and a third party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of Content you post on or through the TM Services.

o 6.3 The TM Services contain Content of TM ("TM Content"). TM Content is protected by copyright, trademark, patent, trade secret and other laws, and TM owns and retains all rights in the TM Content and the TM Services. TM hereby grants you a limited, revocable, non-sub-licensable license to reproduce and display the TM Content (excluding any software code) solely for your personal use in connection with viewing the Site and using the TM Services.

o 6.4 The TM Services contain Content of Users and other TM licensors. Except as provided within this Agreement, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Content appearing on or through the TM Services.

o 6.5 TM performs technical functions necessary to offer the TM Services, including but not limited to trans-coding and/or reformatting Content to allow its use throughout the TM Services.

o 6.6 Although the Site and other TM Services are normally available, there will be occasions when the Site or other TM Services will be interrupted for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and equipment that are beyond the control of TM. Also, although TM will normally only delete Content that violates this Agreement, TM reserves the right to delete any Content for any reason, without prior notice. Deleted content may be stored by TM in order to comply with certain legal obligations and is not retrievable without a valid court order. Consequently, TM encourages you to maintain your own backup of your Content. In other words, TM is not a backup service. TM will not be liable to you for any modification, suspension, or discontinuation of the TM Services, or the loss of any Content.

7. Content Posted.

o 7.1 TM may reject, refuse to post or delete any Content for any or no reason, including Content that in the sole judgment of TM violates this Agreement or which may be offensive, illegal or violate the rights of any person or entity, or harm or threaten the safety of any person or entity. TM assumes no responsibility for monitoring the TM Services for inappropriate Content or conduct. However, on both free and PRO accounts, and regardless of whether the Content is public or private, TM may choose to monitor such Content at any time, in its sole discretion. If at any time TM chooses to monitor the TM Services, TM nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.

o 7.2 You are solely responsible for the Content that you post on or through any of the TM Services, and any material or information that you transmit to other Users and for your interactions with other Users.

8. Content/Activity Prohibited. You must use the TM Services in a manner consistent with any and all applicable laws and regulations. The following are examples of the kind of Content that is illegal or prohibited to post on or through the TM Services. TM reserves the right to investigate and take appropriate legal action against anyone who, in TM's sole discretion, violates this provision, including without limitation, removing the offending Content from the TM Services and terminating the Membership of such violators. Prohibited Content includes, but is not limited to, Content that, in the sole discretion of TM:

o 8.1 is patently offensive or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;

o 8.2 harasses or advocates harassment of another person;

o 8.3 exploits people in a sexual or violent manner;

o 8.4 contains nudity, excessive violence, or offensive subject matter or contains a link to an adult website;

o 8.5 solicits personal information from anyone under 18;

o 8.6 publicly posts information that poses or creates a privacy or security risk to any person;

o 8.7 constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;

o 8.8 constitutes or promotes an illegal or unauthorized copy of another person’s copyrighted work;

o 8.9 involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming";

o 8.10 contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);

o 8.11 furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;

o 8.12 solicits passwords or personal identifying information for unauthorized commercial or unlawful purposes from other Users;

o 8.13 involves commercial activities and/or sales outside of a commercial level account or without prior written consent from TM such as contests, sweepstakes, barter, advertising, or pyramid schemes;

o 8.14 includes a photograph or video of another person that you have posted without that person's consent; or

o 8.15 violates the privacy rights, publicity rights, defamation rights, copyrights, trademark rights, contract rights or any other rights of any person.

o 8.16 TM is an industry-specific networking site intended for models, photographers, producers, etc. to network, communicate and offer assignment based projects. It should not be used for the purposes of employing "Travel Companions", "Personal Assistants", "Executive Assistants", or other full (or part) time companionship or "non-industry" assistant-based work, nor should it be used to attempt to contact models or any site member for employment in ancillary occupations such as bartenders, waitresses, or other skill-specialized industries where modeling or artist work in the entertainment industry is the not primary means of employment. Skill-based employment offers should be posted to those sites whose primary intent is the hiring of skill-based employment (e.g. Yahoo Jobs, Monster.com, etc).

Portfolios offering these types of assignments may be suspended or disabled without warning or refund.

o 8.17 The Promotion and Recruitment of Escorts, Escort Services, Concierge Services, Executive Companions, Personal Companions, or any service which involves personal gratification services or companionship (etc.) are contrary to the purposes of TM, and will not be tolerated in any fashion. Soliciting for, recruiting, or offering the services of escorts on this site is strictly prohibited. Portfolios that are used for the solicitation or promotion of escort services in ANY way will be immediately disabled with no refund (if applicable). This includes (but is not limited to): Use of the referral system, hyperlinks to external sites promoting escorts, URLs (web addresses) promoting escorts and any other activity that the staff of TM deems as solicitations, promotions, or offers.

Additionally, individuals who post any information (such as hosted email addresses, phone numbers, websites, etc.) which leads to the discovery of escort ads or activity will immediately be removed without notice, warning or refund (if applicable).

o 8.18 TM has a stated policy regarding the posting of sexually explicit images to its web pages. Sexually explicit images are not permitted on this site. Sexually explicit images include but are not limited to images of sexual intercourse, obvious states of sexual arousal (erections), or overt sexual positions (such as noticeably visable or spread genitalia). Failure to adhere to this restriction will result in the removal of the images, and the disablement of that member portfolio. Consistent misclassification (rating) or categorization of images may result in the forced setting of ratings and in gross violations may result in the removal of your portfolio.

o 8.19 TM does not support bandwidth theft, the linking of images from TM to other sites, or the misuse of links from Other sites to OneModelPlace.com™ Ltd. (OMP). Anyone found linking images from TM to other sites, copying content from OneModelPlace.com™ Ltd. (OMP), or inappropriately linking to TM (to increase their views - through use of hidden frames, or using programs to artificially raise page views etc.) will result in permanent REMOVAL from TM without notification and may necessitate the notification of the appropriate State and/or Federal authorities.

o 8.20 You should be aware that if you voluntarily disclose personal information (e.g., user name, email address) on a bulletin board or in a chat room, that information can be collected and used by others and may result in unsolicited messages from other parties, and shall therefore be the sole responsibility and liability of the poster.

The following are examples of the kind of activity that is illegal or prohibited on the Site and through the use of the TM Services. TM reserves the right to investigate and take appropriate legal action against anyone who, in TM's sole discretion, violates this provision, including without limitation, reporting you to law enforcement authorities. Prohibited activity includes, but is not limited to:

o 8.21 criminal or tortuous activity, including child pornography or erotica, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, spimming, "pyramid schemes," Ponzi schemes, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets;

o 8.22 advertising to, or solicitation of, any User to buy or sell any products or services through the unauthorized or impermissible use of the TM Services. You may not transmit any chain letters or junk email to other Users.

o 8.23 circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person in circumventing or modifying any security technology or software that is part of the TM Services

o 8.24 Forging any TCP/IP packet header or any part of the header information in any posting, or in any way use the Site or TM Services to send altered, deceptive, or false source-identifying information;

o 8.25 activity that involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise permit the unauthorized use of or access to a computer or a computer network;

o 8.26 interfering with the access of any User, host or network to the Site;

o 8.27 covering or obscuring the banner advertisements on your personal profile page, or any TM page via HTML/CSS or any other means;

o 8.28 including any HTML, CSS or other coding on your personal profile page, including, without limitation, any hidden or otherwise surreptitiously contained code in the Content which is unrelated to the immediate aesthetic nature of the Content;

o 8.29 any automated use of the system, such as, but not limited to, using scripts to send images or videos;

o 8.30 interfering with, disrupting, or creating an undue burden on the TM Services or the networks or services connected to the TM Services;

o 8.31 impersonating or attempting to impersonate another User, person or entity;

o 8.32 using the account, username, or password of another Member at any time or disclosing your password to any third party or permitting any third party to access your account;

o 8.33 selling or otherwise transferring your profile;

o 8.34 using any information obtained from the TM Services in order to harass, abuse, or harm another person or entity, or attempting to do the same;

o 8.35 displaying an unauthorized commercial advertisement on your profile, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity through the unauthorized or impermissible use of the TM Services on behalf of that person or

o 8.36 deleting, or in any manner altering, the copyright, trademark, or other proprietary rights notices appearing on any Content except your own Content;

o 8.37 using any meta tags or other hidden text or metadata utilizing a TM name, trademark, URL or product name without TM's express written consent;

o 8.38 attempting to probe, scan or test the vulnerability of any TM Service or breach any security or authentication measures;

o 8.39 collecting or store personal data about other users without their express permission;

o 8.40 impersonating or misrepresenting your affiliation with any person or entity, through pretexting or any other form of social engineering, or otherwise committing fraud; or

o 8.41 using the TM Services in a manner inconsistent with any and all applicable laws and regulations.

9. Member Disputes. You are solely responsible for your interactions with other Members. TM reserves the right, but has no obligation, to resolve or arbitrate disputes between you and other Members.

10. Disclaimers. TM is not responsible for and makes no warranties, express or implied, as to the Content or the accuracy and reliability of the Content posted on or through the TM Services, whether caused by Users of the TM Services or by any of the equipment or programming associated with or utilized in the TM Services and such Content does not necessarily reflect the opinions or policies of TM. Profiles and third-party applications created and posted by Users on the Site may contain links to other websites. TM is not responsible for the content, accuracy or opinions expressed on such websites, and such websites are in no way investigated, monitored or checked for accuracy or completeness by TM. Inclusion of any linked website on the TM Services does not imply approval or endorsement of the linked website by TM. When you access these third-party sites, you do so at your own risk. TM takes no responsibility for third-party advertisements or third-party applications or services that are posted on or through the TM Services, nor does it take any responsibility for the goods or services provided by its advertisers or third party websites or applications. TM is not responsible for the conduct, whether online or offline, of any User of the TM Services. TM assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User communication. TM is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the TM Services or combination thereof, including any injury or damage to Users or to any person's computer related to or resulting from participation or downloading materials in connection with the TM Services. Under no circumstances shall TM be responsible for any loss or damage, including personal injury or death, resulting from use of the TM Services, from any Content posted on or through the TM Services, or from the conduct of any Users of the TM Services, whether online or offline. The TM Services are provided "AS-IS" and as available and TM expressly disclaims any warranty of fitness for a particular purpose or non-infringement. TM cannot guarantee and does not promise any specific results from use of the TM Services.

11. Limitation on Liability. IN NO EVENT SHALL TM BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE TM SERVICES, EVEN IF TM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TM'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO TM FOR THE TM SERVICES DURING THE TERM OF MEMBERSHIP.

12. U.S. Export Controls. Software available in connection with the TM Services (the "Software") is further subject to United States export controls. No Software may be downloaded from the TM Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.

13. Disputes. The Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflict of law provisions. You and TM agree to submit to the exclusive jurisdiction of the courts located within the State of New York to resolve any dispute arising out of the Agreement or the TM Services. EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. FURTHER, EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH OF THE PARTIES ACKNOWLEDGES THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTY ENTERING INTO THIS AGREEMENT.

14. Indemnity. You agree to indemnify and hold TM, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the TM Services in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth in this Agreement and/or if any Content that you post on or through the TM Services causes TM to be liable to another.

15. Protecting Copyrights and Other Intellectual Property. TM respects the intellectual property of others, and requires that our users do the same. You may not upload, embed, post, email, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. TM has the right to terminate the Membership of infringers. If you believe your work has been copied and posted on or through the TM Services in a way that constitutes copyright infringement, please follow the procedures set forth in the TM Copyright and IP Policy.

16. Other. This Agreement is accepted upon your use of the Site or any of the TM Services and is further affirmed by you becoming a Member. This Agreement constitutes the entire agreement between you and TM regarding the use of the TM Services. The failure of TM to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.

Please contact us at: support@topmodelo.com with any questions regarding this Agreement.
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