International Version | Greater China Version
Last Updated: 10 December 2020
This is who we are and some general legal stuff about being bound by the terms below.
The following terms and conditions (the “Agreement”) govern all use of the “TopHatch” application for our Concepts Pro Edition (“App”) and the website located at concepts.app or tophatch.com (“Website” and, collectively, the “Service”). The Service is provided to you by TopHatch, Inc. (“TopHatch”, “us”, “we, or “our”). The Service is subject to your (“you” or “your”) acceptance without modification of all of the terms and conditions contained herein. By using the Services in any way, you agree to these terms. This Agreement includes any policies we post on in the App or on the Website. Special features provided by TopHatch may be subject to different or additional terms or conditions. To the extent they conflict with this Agreement, such different or additional terms and conditions will control.
TopHatch reserves the right to modify or replace any of the terms or conditions of this Agreement at any time. TopHatch will notify users of such changes by email, account notification, or a notice posted on the App or Website. Your continued use of the Service following the posting of any changes to this Agreement constitutes acceptance of those changes.
You hereby certify to TopHatch that you are of legal age in the jurisdiction in which you reside to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and gotten your parent or guardian to agree to these Terms on your behalf). You also certify that you are otherwise legally permitted to use the Service. If you’re agreeing to this Agreement on behalf of an organization or entity, you represent and warrant that you are authorized to agree to this Agreement on that organization or entity’s behalf and bind them to this Agreement (in which case, the references to “you” and “your” in this Agreement refer to both the individual using the Services and to any such organization or entity).
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS SET FORTH BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND.
This is what TopHatch is. (Hint: It’s awesome!)
The Service is a smart sketchbook that provides you with a professional toolset for drawing, sketching and design. We may also offer other related services, some of which may be provided to you with the help of our third party partners (Third Party Providers).
If you sign up for a user account, make sure to give us accurate information and not to share your account or password with anyone else!
In order to use some of the features provided by the Service, you may be required to sign up for an account and select a password and username (your “TopHatch User ID”). You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your TopHatch User ID a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
You will not share your account or password with anyone, and you must protect the security of your account and your password. You’re responsible for any activity associated with your account.
The Service is controlled or operated (or both) from the United States, and is not intended to subject TopHatch to any non-U.S. jurisdiction or law. The Service may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Service is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Service’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
This is stuff you shouldn’t do!
You shall not, nor permit anyone else to, directly or indirectly: (i) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or underlying algorithms of all or any part of the Service (except that this restriction shall not apply to the limited extent restrictions on reverse engineering are prohibited by applicable local law); (ii) modify or create derivatives of any part of the Service; (iii) rent, lease, or use the Service for any commercial purpose; (iv) remove or obscure any proprietary notices on the Service; (v) use the Service for any unlawful purpose; (vi) access any TopHatch product or service not explicitly permitted by these terms; (vii) send unwanted messages or emails (i.e., “spam”) through the Service; (viii) send any harassing, defamatory or illegal content through the Service (or any content that otherwise infringes or violates the rights of any third party); (ix) use domain names or web URLs in your username without our prior written consent; (x) interfere or disrupt the Service in any way; or (xi) access the Service via any automated means including without limitation scripts, bots, spiders, crawlers, or scrapers. As between the parties, TopHatch shall own all title, ownership rights, and intellectual property rights in and to the Service, and any copies or portions thereof. If your use of the Services is prohibited by applicable laws or otherwise in violation of this Agreement, then you aren’t authorized to use the Services. We can’t and won’t be responsible for you using the Services in a way that breaks the law.
You can use content provided by others only for purposes of using the Service.
You agree that the Service contains information and other content specifically provided by TopHatch or its partners (“TopHatch Content”). You understand that such TopHatch Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. Except as expressly authorized by TopHatch in writing, you shall not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from such TopHatch Content. Reproducing, copying or distributing any such TopHatch Content, including any materials or design elements on the Service, for any other purpose is strictly prohibited without the express prior written permission of TopHatch.
From time to time, TopHatch may make certain object packs and other materials and design elements available to you, either on a free or paid basis (“Licensed Content”). TopHatch grants to you a nonexclusive license to copy, modify, display, and distribute the Licensed Content, but only as modified and integrated into your own original projects and designs. Under no circumstances shall you sell, re-sell, distribute, or otherwise make available any such Licensed Content on a standalone basis or without significant modifications or enhancements.
If you provide anything to TopHatch, you grant us these licenses to make sure we can actually do what you expect us to do (and what we need to do) with what you provided.
Anything you post, upload, share, store, or otherwise provide through the Services is your “User Submission.” Some User Submissions are viewable by other users. In order to display your User Submissions on the Services, and to allow other users to enjoy them (where applicable), you grant us the following rights in those User Submissions. For all User Submissions, you hereby grant TopHatch a license to translate, modify (for technical purposes, for example making sure your content is viewable on a tablet as well as a computer), reproduce, display, and otherwise act with respect to such User Submissions, in each case to enable us to operate and provide the Services to you. This is a license only – your ownership in User Submissions is not affected.
If you share a User Submission publicly on the Services and/or in a manner that more than just you can view (a “Public User Submission”), then you grant TopHatch the licenses above, as well as a license to display, perform, and distribute your Public User Submission for the purpose of making that Public User Submission accessible to all the applicable TopHatch users and providing the Services necessary to do so.
TopHatch has no control over and is not responsible for any use or misuse (including any distribution) by any third party of your User Submissions. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONALLY IDENTIFIABLE OR OTHER INFORMATION PUBLICLY AVAILABLE THROUGH THE SERVICES, YOU DO SO AT YOUR OWN RISK.
You promise that any information you provide in connection with the Services is and will remain accurate and complete, and that you will maintain and update such information as needed.
This should be pretty self-explanatory! If you buy something from us, we’ll charge your card accordingly.
TopHatch may make available the ability to purchase products or services or otherwise purchase access to certain subscriptions through the Service (each a “Transaction”). If you wish to make a Transaction, you may be asked to supply certain relevant information, such as your credit card number and its expiration date, and your billing address. You represent and warrant that you have the right to use any credit card that you submit in connection with a Transaction. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating Transactions. Verification of information may be required prior to the acknowledgment or completion of any Transaction. TopHatch may need to verify your payment information before completing your purchase. You will ensure that your payment details (such as your credit card number) are accurate and up-to-date at all times.
Also, by purchasing products and/or services via the Services, you promise to use such products and services lawfully.
If you purchase a subscription to a product or service, or if you start a free trial for such a subscription, your subscription will renew automatically at the regular subscription price and at the frequency stated when you made the purchase or began the free trial, unless you are otherwise notified in writing. Unless you set a subscription to stop automatically renewing prior to its renewal date, or cancel a free trial before it ends, each in the manner specified by us, you authorize us (without further notice to you, unless otherwise required by applicable laws) to charge the payment method you have provided to us in the amount of the then-current subscription fees and any applicable taxes, on a monthly basis or at any other frequency specified by us and agreed to by you. If TopHatch cannot charge your payment method for any reason, such as an expired payment method information or insufficient funds, you remain responsible for any uncollected amounts, and TopHatch may initiate additional attempts to charge the payment method as you may update your payment method information. TopHatch may terminate a subscription at any time, or change the terms of subscriptions. If TopHatch terminates a subscription, you will receive a prorated refund if applicable.
TopHatch reserves the right, including without prior notice, to limit the available quantity of or discontinue any product or service; to impose conditions on your use of any coupon, discount or similar promotion; to bar any user from making any purchase of our products or services; and to refuse to provide you with any product or service. Refunds and exchanges will be subject to our applicable refund and exchange policies. You agree to pay all charges incurred by you or on your behalf through the Service, at the prices in effect when such charges are incurred, including all shipping and handling charges. In addition, you are responsible for any taxes that apply to your purchases. While it is our practice to confirm orders by e-mail, the receipt of an e-mail order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service.
As long as you comply with this Agreement and have our permission to use the Website, you may view one (1) copy of any portion of the Website under this Agreement, on any single device, solely for your use.
The App is licensed (not sold) to end users. As long as you comply with this Agreement and have our permission to use the App, TopHatch permits you, on a limited, non-exclusive, revocable, non-transferable, non-sublicensable basis, to install and use the App on a device that you own or control, solely for your use, and in the case of commercial users, subject to any other terms between you and TopHatch regarding authorized users. If you violate any of the terms or conditions of this Agreement, you must immediately stop using the App and remove (that is, uninstall and delete) the App from your device.
Some features of the Service may make available access to information, products, services and other materials made available by third parties (“Third Party Materials”) or User Submissions, or allow for the routing or transmission of such Third Party Materials and User Submissions, including via links. By using such features, you are asking us to access, route and transmit to you the applicable Third Party Materials and User Submissions.
TopHatch is not responsible for any Third Party Materials or User Submissions, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third Party Materials and User Submissions, or any related intellectual property rights. Certain Third Party Materials or User Submissions may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by TopHatch with respect to any Third Party Materials or User Submissions. TopHatch is not obligated to monitor Third Party Materials and User Submissions, and TopHatch may block or disable access to any Third Party Materials and User Submissions (in whole or part) through the Service at any time. In addition, the availability of any Third Party Materials and User Submissions through the Service does not imply that TopHatch endorses or are affiliated with any provider of such Third Party Materials or User Submissions, nor does such availability create any legal relationship between you and any such provider.
Your use of Third Party Materials and User Submissions is at your own risk and is subject to any additional terms, conditions and policies applicable to such Third Party Materials and User Submissions (such as terms of service or privacy statements or policies of the providers of such Third Party Materials and User Submissions).
TopHatch disclaims all warranties and conditions with respect to the Service.
THE SERVICE IS PROVIDED ON AN “AS IS,” “WHERE IS” AND “WHERE AVAILABLE” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. TOPHATCH AND ITS LICENSORS MAKE NO WARRANTY THAT (I) THE SERVICE IS FREE OF VIRUSES, BUGS, DEFECTS OR OTHER HARMFUL COMPONENTS, OR (II) THE RESULTS OF USING THE SERVICE WILL MEET YOUR EXPECTATIONS. TOPHATCH MAKES NO WARRANTIES WITH RESPECT TO ANY CONTENT TRANSMITTED THROUGH THE SERVICE BY ANY USERS. TOPHATCH DISCLAIMS ALL WARRANTIES WITH RESPECT TO THIRD PARTY MATERIALS. IN ADDITION, PRODUCTS AND SERVICES PURCHASED OR OFFERED (WHETHER OR NOT FOLLOWING SUCH RECOMMENDATIONS AND SUGGESTIONS) THROUGH THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND FROM TOPHATCH OR OTHERS.
THE FOREGOING EXCLUSIONS AND LIMITATIONS ARE NOT INTENDED TO APPLY TO: (A) DEATH OR BODILY INJURY TO THE EXTENT DIRECTLY CAUSED BY TOPHATCH’S NEGLIGENCE; OR (B) FRAUD OR WILLFUL MISCONDUCT. THE SERVICE IS NOT INTENDED TO PROVIDE ANY EMERGENCY, MISSION CRITICAL OR SAFETY RELATED FUNCTIONALITY AND YOU SHALL NOT USE THE SERVICE IN THAT MANNER. TOPHATCH DOES NOT GUARANTEE ANY RESULTS, OR THE ACCURACY OF ANY RESULTS, THAT YOU MAY OBTAIN FROM THE SERVICE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, OR LIMITATIONS ON HOW LONG SUCH WARRANTIES OR CONDITIONS LAST, SO THE EXCLUSIONS OR LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU. ACCORDINGLY, SOLELY TO THE EXTENT THAT SUCH LAW APPLIES TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE CERTAIN ADDITIONAL RIGHTS.
Our legal liability is limited in a number of ways.
IN NO EVENT SHALL TOPHATCH, OR ITS THIRD PARTY PROVIDERS OR LICENSORS, OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY WITH RESPECT TO THE SERVICES, OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, FOR ANY: (I) ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, EVEN IF FORESEEABLE, (II) DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SITE OR FROM ANY PRODUCTS OR THIRD PARTY MATERIALS, INCLUDING FROM ANY BUGS, VIRUSES, TROJAN HORSES, DEFECTS OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), (III) THE LOSS OF ANY DATA OR OTHER TECHNICAL ISSUES, OR DAMAGES TO YOUR PHONE, MOBILE DEVICE OR OTHER HARDWARE OR SOFTWARE THAT IS CAUSED BY THE SERVICE OR ANY OF TOPHATCH’S SYSTEMS, APPLICATIONS, CODE, PROCESSES OR METHODS, (IV) ANY DAMAGES CAUSED BY THIRD PARTIES, INCLUDING, WITHOUT LIMITATION, LANDLINE AND MOBILE CARRIERS, (V) ANY DAMAGES CAUSED BY MATTERS BEYOND TOPHATCH’S REASONABLE CONTROL (SUCH AS ACTS OF GOD OR TELECOMMUNICATION FAILURES), (VI) OR (VII) ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE AMOUNTS YOU HAVE PAID TO TOPHATCH IN THE THREE (3) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION ACCRUED (OR, IF NO AMOUNTS HAVE BEEN PAID, SUCH CAP WILL BE US$50.00).
IN NO EVENT SHALL TOPHATCH, OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS HAVE ANY LIABILITY IN CONNECTION WITH ANY THIRD PARTY MATERIALS (INCLUDING PRODUCTS OR SERVICES) YOU PURCHASE OR OTHERWISE RECEIVE THROUGH THE SERVICE.
THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW, AND NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS A PARTY’S LIABILITY TO THE OTHER PARTY FOR: (A) DEATH OR BODILY INJURY TO THE EXTENT DIRECTLY CAUSED BY A PARTY’S NEGLIGENCE; OR (B) FRAUD OR WILLFUL MISCONDUCT.
You need to protect us in case your use of TopHatch causes harm.
You shall indemnify and hold harmless TopHatch, its affiliates, its partners, and each of its, and its affiliates, and its partners, employees, contractors, directors, suppliers and representatives from all liabilities, losses, damages, claims, and expenses, including reasonable attorneys' fees, that arise from or in connection with (i) your use of, or activities in connection with, the Services (including all User Submissions), (ii) your breach of this Agreement, or (iii) your negligence, willful misconduct, or violation of any laws or regulations or third party rights. TopHatch reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully assist and cooperate with TopHatch in asserting any available defenses.
You can terminate at any time and so can we.
Though we’re sad to see you go, you are free to stop using the Services at any time. You can cancel your TopHatch account by using the account cancellation features available in the App. In addition, TopHatch may terminate or suspend your access to the Service at any time, with or without cause. Upon termination, you will no longer access (or attempt to access) the Service.
If you terminate this Agreement, or TopHatch terminates for your breach of this Agreement, you will not be refunded any of the amounts you have paid TopHatch. Such amounts will be forfeited upon termination.
In the event of any termination of this Agreement, you are responsible for payment of all Service charges up through the date of termination.
All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, all warranty disclaimers, limitations of liability and disputes resolutions provisions.
If you are using TopHatch on an Apple device (like an iPhone) – these terms apply.
In the event you are using the App in connection with a device provided by Apple, Inc. (“Apple”), the following shall apply:
Both you and TopHatch acknowledge that this Agreement is concluded between you and TopHatch only, and not with Apple, and that Apple is not responsible for the App or any content available thru the App;
The license granted to you for the App is a non-transferable license to use the App on any Apple-branded Products that you own or control and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that the App may be accessed and used by other accounts associated with you via Family Sharing or volume purchasing;
You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App;
In the event of any failure of the App to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, to the maximum extent permitted by applicable law, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the App; any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of TopHatch;
You acknowledge and agree that TopHatch, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the App or your possession and/or use of the App;
You acknowledge and agree that, in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, TopHatch, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
Both you and TopHatch acknowledge and agree that, in your use of the App, you will comply with any applicable third party terms of agreement, which may affect or be affected by such use; and
Both you and TopHatch acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and that upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as the third party beneficiary hereof.
The App may be provided with or otherwise contain open source software components. Your use of the App may be subject to additional license terms and conditions applicable to these open source software components (“Open Source Licenses”). You acknowledge and agree to comply with these Open Source Licenses. With respect to each open source component, if there are any conflicts between any terms of this Agreement and any terms of the respective Open Source License, the conflicting terms of this Agreement will not apply. Please click here to view the open source projects TopHatch uses in the App and their respective terms.
If a dispute ever arises between us and you (which hopefully will never ever be the case!), here is how it will be dealt with.
Let's Try To Work It Out. Ideally, if you have any concerns or complaint against TopHatch, TopHatch would like to resolve the issue without resorting to formal court or arbitration proceedings. Therefore, before filing a claim against TopHatch, you agree to try to resolve the dispute informally by contacting concepts.app. TopHatch will attempt to resolve the dispute informally (and will contact you via email if you’ve provided us the means to do so). If a dispute is not resolved within 15 days of submission, you may bring a formal proceeding.
Arbitration. Any disputes that are not settled informally shall be settled by binding arbitration.
Except for disputes that qualify for small claims court or if you opt out of arbitration as provided immediately below, all disputes arising out of or related to this Agreement, your use of (including any access to) the Service and all related matters, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, will be resolved through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury and you agree that TopHatch and you are each waiving the right to trial by a jury. You agree that any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted and you are agreeing to give up the ability to participate in a class arbitration or class action. If you do not want to be bound by this arbitration provision, you may opt out. In order to opt out of this arbitration provision, you must notify us in writing that you do not want to resolve disputes with us by arbitration, and such notice should be delivered by mail to TopHatch, Inc., 1180 San Carlos Ave #1011, San Carlos, CA 94070 USA., within thirty (30) days of the earlier of (a) the date you first use or access the Service; and (b) the date you click or tap any button or box marked “accept,” “agree” or “ok” (or a similar term) in connection with this Agreement.
If your principal place of business is in the United States or Canada, the arbitration will be administered by JAMS under its Comprehensive Arbitration Rules and Procedures (the “Comprehensive Rules”) (currently available at http://www.jamsadr.com/rules-comprehensive-arbitration/, as amended by this Agreement. If your residence or principal place of business, as applicable, is in any country in APAC, then the arbitration will be administered by the Singapore International Arbitration Centre (SIAC) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre. If your residence or principal place of business, as applicable, is outside of the United States, Canada or any country in APAC, then the arbitration will be administered by the International Chamber of Commerce (ICC) in accordance with ICC Rules of Arbitration. The arbitration rules specified in this subsection are referred to as the “Rules.” For the purposes of this Agreement, “APAC” means the geographic region that includes the following countries: Australia, Bangladesh, Brunei, Burma, Cambodia, China (including Hong Kong Special Administrative Region and Macau Special Administrative Region), Christmas Islands, Fiji, India, Indonesia, Japan, Kiribati, Laos, Malaysia, Marshall Islands, Federated States of Micronesia, Mongolia, Nauru, New Zealand, Palau, Papua New Guinea, Philippines, Samoa, Singapore, Solomon Islands, South Korea, Sri Lanka, Taiwan, Thailand, Timor-Leste, Tonga, Tuvalu, Vanuatu and Vietnam.
The arbitrator shall be selected according to the Rules. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by TopHatch that an in-person hearing is appropriate. If your principal place of business is in the United States or Canada, any in-person appearances will be held in San Francisco, California, provided that if you are a consumer (as defined by the Rules), You have a right to an in-person hearing in your hometown area. If the parties are unable to agree on a location, such determination should be made pursuant to the Rules or by the arbitrator. If your residence or principal place of business is in a country in APAC, the place of arbitration will be Singapore. If your residence or principal place of business is outside of the United States, Canada or any country in APAC, the place of arbitration will be London, United Kingdom. The arbitration shall be conducted in English. Notwithstanding the foregoing, if your principal place of business is in the Netherlands, you may opt to resolve any Dispute before Dutch courts, provided that you notify TopHatch of this election within thirty (30) days of TopHatch notifying you of TopHatch’s intention to commence arbitration.
The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. The arbitrator’s award will provide a written statement of the disposition of each claim, the award given and the essential findings and conclusions on which the award is based. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if applicable law allows, they can seek relief against TopHatch for you. If You are a consumer (as defined by the Rules), remedies that would otherwise be available to you under applicable federal, state or local laws will remain available under this arbitration clause, unless you retain the right to pursue such remedies in court. As part of the arbitration, both you and TopHatch will have the opportunity for discovery of non-privileged information that is relevant to the claim.
If you are a consumer (as defined by the Rules) and you initiate arbitration against TopHatch, the only fee required to be paid is $250 (the approximate cost of court filing fees) and all other costs will be borne by TopHatch, including any remaining JAMS Case Management Fee and professional fees for the arbitrator’s services. If TopHatch initiates arbitration against you and you are a consumer (as defined by the Rules), TopHatch will pay for all costs associated with the arbitration. The parties are responsible for paying their own attorneys’ fees. For arbitrations outside of California, the arbitrator shall have the authority to award attorney's fees and costs to the prevailing party if such an award is allowed under applicable Law. For arbitrations within California, the arbitrator shall not have the authority to award attorney's fees and costs to a claimant who does not prevail against TopHatch.
Notwithstanding the foregoing, either party may bring claims for equitable or injunctive relief before a court (see the “General” section below) at any time.
No Class Actions. You may only resolve disputes with TopHatch on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed. This paragraph will not apply to the extent prohibited by applicable law.
We’re not shouting, but this is really important for you to know!
YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND TOPHATCH ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Going to Court. Subject to the arbitration provision above, you agree that the exclusive jurisdiction and venue for all disputes arising in connection with this Agreement shall be in the state and Federal courts located in San Francisco, California. You hereby submit to such jurisdiction and venue. This provision does not limit the rights that you may have under your local consumer protection law to file a complaint before local courts of competent jurisdiction.
We love to get our users’ feedback regarding the Service.
TopHatch encourages our users to submit comments, suggestions, error reports, or support inquiries to TopHatch. You shall and hereby do grant TopHatch an irrevocable, perpetual, non-exclusive, sublicensable, transferrable, fully paid-up, royalty free, worldwide rights and license to use, reproduce, distribute, develop and otherwise exercise and fully exploit, for any purposes, all right, title and interest in and to such feedback.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Services infringe your copyright, you (or your agent) may send us a written notice by mail, e-mail or fax, requesting that TopHatch remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements of the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to TopHatch's DMCA Agent as follows: By mail to TopHatch, Inc., 1180 San Carlos Ave #1011, San Carlos, CA 94070 USA.; or by e-mail to email@example.com. TopHatch's DMCA Agent’s phone number is (888) 559-5553.
TopHatch suggests that you speak with your legal advisor before filing a DMCA notice or counter-notice.
You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
TopHatch by this provision notifies you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers. Please note that Company does not endorse any of the products or services listed on such site.
If you have a question or complaint regarding the Service, please send an e-mail to firstname.lastname@example.org. You may also contact us by writing to TopHatch, Inc., 1180 San Carlos Ave #1011, San Carlos, CA 94070 USA., or by calling us at (888) 559-5553. Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
These are the rest of our terms. Stuff dealing with how this Agreement should be read, what laws apply, how notices are to be delivered etc.
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. TopHatch shall not be liable for any failure to perform its obligations hereunder where such failure arises in whole or in part from fire, flood, earthquake, epidemic, pandemic or any other cause beyond its reasonable control.
If the application of any provision of this Agreement or portion thereof to any particular facts or circumstances shall be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then the parties shall negotiate in good faith a valid, legal and enforceable substitute provision that most closely reflects the original intent of the parties with respect to the parties’ economic and business interests, and all other provisions of this Agreement shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the you and TopHatch as nearly as may be possible. Such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of such provision in any other jurisdiction.
This Agreement is not assignable, transferable or sublicensable by you except with TopHatch’s prior written consent. TopHatch may transfer, assign or delegate this Agreement and its rights and obligations without consent.
This Agreement (including the arbitration provisions set forth in Section 13.8) shall be governed by and interpreted in accordance with the Laws of the State of California and the federal Laws of the United States, without prejudice to the provisions of the laws of the country where you have your principal place of business that cannot be derogated from contractually, and without reference to conflict of laws’ principles, as such laws are applied to agreements entered into and to be performed entirely within the United States between residents of the United States. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods and/or its implementation and/or successor legislation and/or regulations, the application of which is expressly excluded.
No agency, partnership, joint venture, or employment is created as a result of this Agreement. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular will have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations of “including” will be construed as if followed by the phrase “without limitation.” Notices to you (including notices of changes to this Agreement) may be made via posting to the Service or by e-mail to the most recent email address that you have provided to us (including in each case via links), by regular mail to the most recent mailing address that you have provided to us or by any other reasonable means. Without limitation, a printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Both parties agree that this Agreement (including any documents, policies or other terms and conditions referenced in this Agreement) is the complete and exclusive statement of the mutual understanding of the parties pertaining to the subject matter of this Agreement and supersedes and cancels all previous written and oral agreements, communications and other understandings pertaining to the subject matter of this Agreement. Except as expressly set forth in this Agreement, no modifications to this Agreement are binding on TopHatch unless in a signed writing between you and TopHatch.
You can contact us at our mailing address or via email:
Mailing Address: TopHatch, Inc., 1180 San Carlos Ave #1011, San Carlos, CA 94070 USA.
Telephone: (888) 559-5553