Updated as of August 8, 2023
1. Definitions: Any capitalized terms not otherwise defined in this Agreement shall have the meanings attributed to them in the User Agreement.
1.1 “FERPA” means the Family Educational Rights & Privacy Act, 20 U.S.C. § 1232(g), as amended from time to time.
1.2 “Personal Information” means information that (a) directly or indirectly identifies, relates to, describes, is reasonably capable of being associated with, could reasonably be used to infer information about, or could reasonably be linked, directly or indirectly, with an individual person; or (b) is an Education Record as defined in FERPA. This includes both direct identifiers (such as a person’s name or Student ID number) or indirect identifiers (such as a person’s date of birth). Subject to Applicable Law, Personal Information does not include (a) business contact information such as your business email address if you are an Institution User or (b) aggregate information or de-identified information that does not identify any individuals and cannot be traced back or linked to an identifiable individual.
1.3 “Third-Party Service Provider(s)” means service providers, including Product Partners, who perform services on Top Hat’s behalf in order to provide the Products to you, including but not limited to payment processing, hosting services for the Website (defined below) and Products, Product features, data storage, order fulfillment, and product marketing.
1.4 “Top Hat” means: (a) Tophatmonocle (US) Corp., a Delaware corporation, for Users located in the United States of America (doing business as Aktiv); (b) Top Hat (AUS) Pty Ltd., an Australian corporation, for Users located in Australia or New Zealand; and (c) Tophatmonocle Corp., a Canadian corporation, for Users located outside of the United States of America, Australia, or New Zealand.
2. User Acknowledgements and Obligations: You acknowledge and agree that by creating a User Account and accessing the Products you voluntarily consent to the collection, use, retention, and disclosure of Personal Information in accordance with this Policy. You agree not to disclose any Personal Information to other Users when using the Products, including without limitation in any User Content you post or share in the Products. You acknowledge and agree that Top Hat requires certain Personal Information in order to provide you the Products and you consent to Top Hat using your Personal Information to: (a) create and manage your User Account; (b) determine your eligibility to access and use the Products; (c) process your purchase of the Products; (d) provide you access to and use of the Products, including without limitation sharing Personal Information with Product Partners; (e) provide you with technical support in connection with the Products; (f) improve the Products; (g) retain certain Personal Information as necessary to prevent fraud or future abuse, or for legitimate business purposes, such as auditing, account recovery, or if required by applicable federal, state and provincial laws or by contract with an Institution; all retained Personal Information will remain subject to the terms of this Policy; (h) communicate with you regarding the Products via email and, if you have agreed to receive them, push notifications and SMS messages; (i) communicate with you regarding new products, surveys, and research on future product ideas or improvements; (j) provide you with marketing and promotional materials that may be of interest (if you have opted-in to receive such materials); and (k) communicate with you regarding security, privacy, and administrative issues relating to your use of the Top Hat Products.
3. Top Hat Obligations: Top Hat is committed to protecting the Personal Information of Users. Top Hat shall (a) collect, use, and disclose your Personal Information in accordance with this Policy, and (b) not sell or rent any Personal Information to any third party. For California Users, additional information on Do Not Sell and Do Not Share can be found here.
Disclosure of Personal Information. You agree that Top Hat may disclose your Personal Information in the circumstances set out below:
4.1 To your Institution and selected Institution Users at your Institution as required for the provision of the Top Hat Products or for administrative purposes, including without limitation compiling a list of Student Users or Institution Users who use the Products;
4.2 If you are a Student User, Top Hat may disclose “Directory Information,” as defined under FERPA to your Institution and Third-Party Service Providers as required for the provision of the Products;
4.3 With Third-Party Service Providers to provide services to Top Hat.
4.4 To third parties in connection with a corporate reorganization, merger or amalgamation, or the sale of all or substantially all of its assets, provided that, where appropriate, any party to whom the information is disclosed is bound by agreements or obligations, and required to use or disclose your Personal Information in a manner consistent with the use and disclosure provisions of this Policy; or
4.5 Top Hat may be required or permitted by law to disclose Personal Information without your consent in the event Top Hat has reasonable belief that there may be harm to you or to another person, in emergency situations, or when required by law, government, valid legal process, or other legal authority;
For Australian users, by accepting the User Agreement and continuing to use the Products, you expressly consent to Top Hat disclosing your Personal Information to persons and entities in other countries (“Overseas Recipient”) for the purposes of this Policy. Please be aware that, in giving such consent: (a) the requirement under the Australian Privacy Principle (APP) 8.1 to take reasonable steps to ensure that the Overseas Recipient does not breach the APPs (other than APP 1) set out in the Privacy Act 1999 (Cth) (“Privacy Act”) does not apply to Top Hat; and (b) if the Overseas Recipient handles the Personal Information in breach of the Privacy Act, Top Hat will not be accountable under the Privacy Act, and you will not be able to seek redress under the Privacy Act for such breach. However, this does not change Top Hat’s commitment to safeguard your Personal Information and Top Hat will take all reasonable measures and precautions to protect your Personal Information when it is being handled by Third-Party Service Providers and Overseas Recipients.
5. Accessing and Correcting Your Personal Information: You are entitled to access and correct your Personal Information at any time. Top Hat will, at your request, provide you with copies of your Personal Information Top Hat has in its possession, including for the purpose of correcting or updating your Personal Information, unless there is an exception to such disclosure that applies under Applicable Law. Please send such request to Top Hat as described in Section 14 hereof. Before Top Hat provides you with access to your Personal Information, Top Hat will require proof of identity. For most requests, your Personal Information will be provided free of charge; provided, however, Top Hat may charge a reasonable fee if such request requires a substantial effort on Top Hat’s part. If Top Hat refuses to provide you with access to your Personal Information, Top Hat will provide you with reasons for the refusal and inform you of any exceptions relied upon under Applicable Law (unless it would be unreasonable to do so).
6. How to Opt-Out / Withdraw Consent: You can withdraw your consent for the use of your Personal Information at any time by requesting the deletion of your User Account. Top Hat shall delete your Personal Information, subject to technological constraints and Applicable Law. If you do not wish to continue receive marketing communications you’ve opted into, you will need to do one of the following:
6.1 Follow the “unsubscribe” instructions included within each e-mail communication;
6.2 Select or deselect (depending on the service) the appropriate option in your User Account settings; or
6.3 Email firstname.lastname@example.org with subject line: Email Unsubscribe
7. Safeguards Top Hat has in Place: Top Hat stores and processes Personal Information on servers in Canada and the United States. Accordingly, your Personal Information may be available to government bodies or their agencies in those jurisdictions under a lawful order. Top Hat employs reasonable administrative, physical, and technical measures to ensure that your Personal Information is secure. In addition, Top Hat’s dedicated team of information technology professionals works to maintain data accuracy and prevent unauthorized access to sensitive information. Unfortunately, no security system can be guaranteed to be 100% secure. Accordingly, Top Hat cannot guarantee the security of your Personal Information. The Internet is not a secure medium and you acknowledge and agree that the privacy of your e-mail communication and Personal Information can never be guaranteed as any e-mail communication may be lost, intercepted or altered. Third-Party Service Providers are bound by agreement or obligations with Top Hat to implement and maintain reasonable security procedures and practices in order to use and disclose your Personal Information in a manner consistent with the use and disclosure provisions of this Policy, unless you consent otherwise. Third-Party Service Providers are located in Canada, the United States, the Philippines and Europe and, as a result, your Personal Information may be stored, processed or transferred into or out of these countries. Top Hat takes all reasonable measures and precautions to protect your Personal Information when it is being handled by Third-Party Service Providers. If you wish to obtain more information on Top Hat’s use of Third-Party Service Providers and policies and practices regarding Third-Party Service Providers, please send such request to Top Hat as described in Section 14 hereof.
8. Family Education Rights & Privacy Act (FERPA): In the United States, FERPA restricts the disclosure of personally identifiable information from a Student User’s education records, unless an exception applies. For US Users, Top Hat’s data protection and privacy policies and practices allow Institutions to comply with FERPA, and other applicable federal and state privacy laws. Top Hat maintains the privacy of Personal Information, and only uses this information to deliver and improve Top Hat Products provided to Institutions and Student Users. You may also have specific rights related to accessing and/or updating your Personal Information when FERPA applies. Student Users may also edit Personal Information provided to Top Hat by accessing their account information and updating their settings. Full instructions can be found here: Updating Student User Account Information. In the event that any collected Student User Personal Information is inaccurate, Users have the ability to contact Top Hat Support via email or phone to request corrections. Prior to amending Personal Information, Top Hat will validate the user’s identity, and notify the Institution of the request if required by prior agreement. For further information about FERPA compliance, or to access, modify, or remove any such data, please contact Top Hat as described in Section 14 hereof.
10. Third-Party Websites and Links: The Products are connected to other websites or linked resources provided by third parties (“Third-Party Websites”). You acknowledge and agree that Top Hat makes no representation, warranty, covenant, or claim regarding, and Top Hat expressly disclaims and denies any responsibility or liability for, directly or indirectly, the privacy practices on any Third-Party Websites accessible by link from the Website or Products. You agree that the inclusion of any such link does not suggest, represent, warrant, covenant or imply that Top Hat monitors, endorses or exerts any control over such Third-Party Website. You agree that Top Hat provides these links to you only as a convenience, and the inclusion of any link does not suggest, represent, warrant, covenant or imply affiliation, endorsement or adoption by Top Hat of any such Third-Party Website. When you leave the Top Hat Website or Products, you acknowledge and agree that Top Hat’s terms and policies do not govern your access to, and use of, other Third-Party websites. you acknowledge Top Hat’s recommendation to review the applicable privacy and data gathering practices of any Third-Party website to which you navigate from the Website or Products.
12. California Residents: If you are a California resident, the California Consumer Privacy Act (“CCPA”) applies to the collection and use of your Personal Information. Please review Top Hat’s full California Consumer Privacy Act Privacy Statement for more information on your rights and Top Hat’s obligations under the CCPA.
13. United Kingdom and European Union Residents: If you are a resident of the United Kingdom or the European Union, the applicable data protection legislation permits you to request Top Hat (a) tells you what Personal Information it holds about you; (b) tell you how it is processed; and(c) provide you with a copy of that information. You are entitled to access, rectify, change, update, delete, revoke, or improve upon your Personal Information at any time. You can exercise this right free of charge. Top Hat may ask you to provide further information to confirm your identity before considering your request. In addition, for purposes of providing the Top Hat Products, you acknowledge that Top Hat may transfer your personal data to servers located in Canada or other countries outside of the UK and the European Economic Area which provide for a different level of data protection. By using, and continuing to use the Top Hat Products you agree to that transfer.
14. Contact Information: If you have any questions about this Policy, concerns about how Top Hat manages your Personal Information, or if you would like to make a complaint about how Top Hat manages your Personal Information, please contact Top Hat by mail or email at: (a) Tophatmonocle Corp., 151 Bloor Street West, Suite 200, Toronto, Ontario, Canada, M5S 1S4, and (b) email@example.com.
15. Interpretation of this Policy: This Policy does not create or confer upon any individual any rights, or impose upon Top Hat any obligations, in addition to any rights or obligations imposed by applicable federal and provincial privacy laws if you reside in Canada, or the Privacy Act in Australia. Should there be any inconsistency between this Policy and applicable federal and provincial privacy laws, including FERPA or the Privacy Act in Australia, this Policy will be interpreted to comply with the applicable privacy laws.