TOP HAT TERMS-OF-SERVICE
Last updated: January 17, 2017
The websites (https://tophat.com and https://app.tophat.com) (“Web site”) are operated by Top Hat (“we“, “us“, “our” or “THM“) on its own behalf and on the behalf of all its affiliates. Top Hat means Tophatmonocle (US) Corp., a United States of America corporation, for customers that reside in the United States of America and Tophatmonocle Corp., a Canadian corporation, for customers that do not reside in the United States of America.
By using the THM Services You indicate that You accept this Agreement and you agree to be bound by it. If You do not agree to the Agreement please do not use the THM Services. “You” or “Your” is defined as an individual user of the THM Services such as a student or instructor. Where applicable, “You” or “Your” is also defined as an individual using the THM Services through a subscription provided by an institution (such as such as a school, university or college) where the student is enrolled or the instructor is employed or contracted if such use is accessing and using the THM Services on behalf of or through such entity.
Users using the THM Services through a subscription held by a school, university or college (or other such entity) (for example, students, professors or other staff) agree that they do so with the appropriate permissions and authority from the applicable institution.
1. RESTRICTIONS AND REQUIREMENT FOR USING THE THM SERVICES AND THM SERVICES.
1.1 Institutional Users. Users using the THM Services through a subscription held by a school, university or college (or other such entity) (for example, students, professors or other staff) agree that they do so with the appropriate permissions and authority from the applicable institution.
1.2 Competitors. You may not access or use the THM Services if you are our direct competitor, except with our prior written consent. In addition, You may not access the Website or our mobile applications for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.
1.3 Minors. You represent that You are at least eighteen (18) years of age and You have the legal authority to enter into this Agreement. If You are at least thirteen (13) years of age and less than eighteen (18) years of age, then Your parent or legal guardian must read and accept this Agreement, consent to Your use of the THM Services, and agree to You providing any personal information in connection with the THM Services on Your behalf. This Service is not meant for users under the age of thirteen (13).
2. YOUR PASSWORD AND ACCOUNT
2.1 Registered Users. In order to gain access to the THM Services through the app or the Website, you are required to register for an account that is accessed by a username and password (“Account”) in order to use any features of the THM Services. In registering for Your Account, You agree (i) that the information You provide to us in connection with your registration will be current, complete and accurate, (ii) not to choose a user name that violates any law or the intellectual property rights of others, or is offensive; provided that THM reserves the right to reject the use of any user name for any reason or no reason, (iii) not to transfer, sell, convey or assign the right to use Your Account to any third party without the prior written consent of us and (iv) not to permit any third party to use Your user name and password to access your Account or the THM Services. You further agree that you are responsible for the conduct of any party that uses Your Account, whether or not authorized by You, and for any breach of the security of the THM Services related to the use of your user name and/or password.
2.2 Grant of Rights. Upon registration and subject to the payment of any applicable fees, THM grants You the limited, revocable, non-transferable, non-exclusive right to access and use the THM Services (including any downloaded applications that permit interaction with the THM Services and any content to which you subscribe as further described in Section 2.3 below) for the term provided on the Order Form or Web Enrollment and subject to any additional terms contained therein.
2.3 Web Enrollment and Order Forms. The right to access to use the THM Services may be done through a subscription for service on the Web site or with the App (“Web Enrollment“) or by an agreement or order form with an institution (“Order Form“) that incorporates by reference this Agreement.
3. LICENSED CONTENT
3.1 If you are a registered subscriber of the THM Services, you will have the ability to subscribe to specific content provided by our contributing community of professors, instructors and other academic writers on a variety of topics (“Licensed Content”). You may subscribe to specific Licensed Content by purchasing access to the same through the THM Services using the payment portal and checkout process provided. Please note that Licensed Content is not reviewed, assessed or any sources verified and accordingly, your use and reliance on such Licensed Content should be based on your own judgment. If you have reason to believe that any Licensed Content infringes any copyright, please refer to our Copyright Policy in Section 4 below for further information on how to inform us about it. You acknowledge and agree that THM cannot guarantee the availability or continuing availability of any Licensed Content and if any Licensed Content is removed from the THM Services due to infringement or alleged infringement, if you are a paying subscriber to such Licensed Content, you will be entitled to either: (i) a refund of the fees paid by you for such Licensed Content; or (ii) substitute content agreed with THM. Such substitution or refund (or offer of the same) will be in full and final settlement of any claim you might have against THM and its licensors and, to the maximum extent enforceable by law, you will not bring any proceedings or claims against THM for additional compensation or otherwise.
3.2 You may access Licensed Content, only as permitted under this Agreement. THM and its licensors reserve all rights not expressly granted in and to the Licensed Content.
3.3 You agree that you will not engage in the use, copying, or distribution of any of the Licensed Content other than expressly permitted herein, including any use, copying, or distribution of any Licensed Content obtained through the THM Services for any commercial purposes.
3.4 You agree not to try to circumvent, disable or otherwise interfere with security-related features or restrictions built into the systems used to provide the THM Services or specific Licensed Content to prevent copying, printing or other uses of any Licensed Content.
3.5 You understand that through use of the THM Services you may be exposed to Licensed Content from a variety of sources, and that THM is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Licensed content. You further understand and acknowledge that you may be exposed to Licensed Content that you consider inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against us with respect thereto, and agree to indemnify and hold us and our affiliates harmless to the fullest extent allowed by law regarding all matters related to your use of the THM Services.
4. COPYRIGHT POLICY
4.1 We do not permit copyright infringing activities and infringement of intellectual property rights on and will remove any content on the THM Services if properly notified that such content infringes on another’s intellectual property rights.
4.2 If you are a copyright owner or an agent thereof and believe that any content made available through THM Services infringes upon your copyright, you may submit a notification by providing our Copyright Agent with the following information in writing:
– an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright’s interest;
– a description of the copyrighted work that you claim has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work;
– identification of the URL or other specific location on the Web site where the material that you claim is infringing is located;
– your address, telephone number, and email address
– a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
– a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
You can contact our Copyright Agent via email at firstname.lastname@example.org or by mail at Copyright Agent – Tophatmonocle Corp 2 Carlton Street, Suite 1317, Toronto ON, Canada, M5B 1J3.
5.1 Suspension or Termination. You acknowledge and agree that we may, at our sole discretion, suspend or terminate Your access to all or part of the THM Services with or without notice and for any reason, including, without limitation, breach of these Terms of Service or the Acceptable Use Policy. Upon suspension or termination, Your right to use the THM Services will immediately cease, and we reserve the right to remove or delete any information that you may have on file with us, including any Account information or User Content.
5.2 Effect of Termination. In the event of any termination or expiration:
(i) All licenses and rights we granted to You hereunder shall immediately terminate;
(ii) The accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced.
6. FEES PAYMENT AND REFUND POLICY
6.1 Term of Purchased User Subscriptions. In consideration of the right to access and use the THM Services, you agree to pay the applicable fees specified in an Order Form or Web Enrollment (the “Fees”). User subscriptions purchased by You, or for others, commence on the start date specified in the applicable Order Form or Web Enrollment and continue for the subscription term specified therein. Fees are billed in advance and are non-refundable except as set out herein. A valid credit card or PayPal account is required for paying the Fees. You will be billed as provided in an Order Form or Web Enrollment for the applicable Fee. All Fees are exclusive of all sales, excise or use taxes, or any levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.
6.2 User Subscriptions for Administrative Users. Unless otherwise specified in the applicable Order Form or Web Enrollment, (i) the right to access and use the THM Services is purchased as user subscriptions and may be accessed by no more than the specified number of users, (ii) additional user subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions there under, prorated for the remainder of the subscription term in effect at the time the additional user subscriptions are added, and (iii) the added user subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated users only and cannot be shared or used by more than one user but may be reassigned to new users replacing former users who no longer require ongoing use of the THM Services.
6.3 Refunds. THM will provide refunds for THM Services purchased directly by You for a period of 2 weeks subsequent to initial activation. Upon granting of a refund, Your access to the THM Services refunded will be immediately terminated and all records (including grades) associated with these THM Services will be permanently deleted. Refund requests are to be sent to email@example.com.
To be eligible for refunds of Licensed Content, Users must also deregister for the course the Licensed Content is associated with. At time of refund, all records (including grades) associated with the Licensed Content and the associated course will be permanently deleted.
8.1 Availability. While we endeavor to ensure that the THM Services are normally available 24 hours a day, we will not be liable if for any reason the THM Services (or any part of it) is unavailable at any time or for any period.
8.2 Suspension. Access to the THM Services may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for reasons beyond our control.
9. YOUR CONDUCT
9.1 Acceptable Use Policy. When using the THM Services, you must comply with the provisions of our Acceptable Use Policy. Failure to comply with the Acceptable Use Policy could result in your account being suspended or terminated. For greater certainty, in accessing the THM Services you agree not to use the THM Services for any commercial use, without our prior written authorization.
9.2 Data Storage. Any data or content you make available through the THM Services must comply with the provisions of our Acceptable Use Policy and is subject to any data storage limit we notify to you of from time to time. We reserve the right to charge for data storage which exceeds our data storage limit.
9.3 Restrictions. You agree that will not directly or indirectly: (i) modify or create any derivative work of the THM Services, documentation or service; (ii) sublicense, sell, lend, rent, lease, give, transfer, assign or otherwise dispose of all or any portion of the THM Services; (iii) reverse engineer, disassemble or decompile the technology used to provide the THM Services or attempt to discover or recreate the source code to the systems used to provide the THM Services including our Website and mobile applications; or (iv) remove, obscure, or alter any notice of copyright, trademark, trade secret, or other proprietary right related to our technology and the THM Services.
10. LINKING TO OUR SITE
10.1 Linking to our Web site. You may link to our Web site’s home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.
10.2 No Framing. Our Web site must not be framed on any other website, nor may you create a link to any part of our Web site other than the home page. The website from which You are linking must not display or link to any unlawful, harassing, defamatory, abusive, threatening, harmful, obscene, profane, sexually oriented, racially offensive or otherwise objectionable material. We reserve the right to withdraw linking permission without notice.
11. LINKING FROM OUR SITE
11.1 Linking from Our Site. Where our Web site contains links to other sites and resources provided by third parties, these links are provided for Your information only. We have no control over the contents of those sites or resources or the privacy policies or practices of such third party providers, and accept no responsibility for them or for any loss or damage that may arise from Your use of them. By using the Web site you expressly agree that we will have no liability in respect of your use of such third party links.
12. RELIANCE ON INFORMATION
12.1 Reliance on Information. We cannot offer any guarantee that any information that is posted on our Web site or System is complete, accurate or up to date including any Licensed Content which is provided by third party authors with no review or contribution by THM. We therefore disclaim all liability and responsibility arising from any reliance placed on such materials or information by any visitor to Our Web site, or by any user of the THM Services.
13. USER CONTENT
13.1 No Other Interest. As between THM and you, You retain ownership of any content that you upload, post, transmit or display on or through the THM Services including any intellectual property rights which subsist in that content (“User Content”). You agree that you are responsible for protecting and enforcing those rights and that we have no obligation to do so on Your behalf.
13.2 User Content License. By uploading, posting or displaying User Content you grant us, our partners, and affiliates a non-exclusive, perpetual, royalty-free right to use, reproduce, modify, publish, distribute, perform, display and transmit the User Content for the sole purpose of providing services to You. In addition, we shall be permitted to use anonymized User Content both during and after the term of this Agreement to optimize our service and for any other lawful purpose. In no event will such data include any personally identifiable information.
13.3 User Content Compliance. Any User Content posted or shared by You on our System must comply with Our Acceptable Use Policy.
13.4 Necessary Rights. It is a condition of the Agreement that you have all the necessary rights and consents to grant the licenses set out at in section 13.2 and to upload User Content to our System. In particular, you must ensure that you have obtained any necessary consents, including parental consents, relating to the use of images of minors and/or vulnerable adults.
13.5 User Content. It is a condition of the Agreement that Your User Content does not contain any material which is the confidential information of any third party or which is defamatory, obscene or otherwise unlawful.
13.6 Removal of User Content. We have the right at our sole discretion to remove any User Content that, we feel in our judgment does not comply with the Agreement or violates any third party copyrights or trademarks. We are not responsible for any delay or failure in removing such User Content. If You post User Content that we choose to remove, You hereby consent to such removal, and consent to waive any claim against us. We do not monitor all content uploaded, posted or published on our System. If You believe that any content uploaded, posted or published on our System is defamatory and/or breaches the Agreement or infringes your intellectual property rights please contact us at firstname.lastname@example.org. We may require You to provide additional information to help us assess your concern and correctly identify information to be removed.
13.7 User Content Indemnity. You agree to indemnify and hold THM, and its affiliates, officers, agents, partners, and employees, harmless from any claim or demand, including reasonable attorney’s fees, made by any third party due to or arising out of User Content you submit, post to, email, or otherwise transmit through THM Services, your use of the THM Services or your breach of the Agreement.
14. INTELLECTUAL PROPERTY RIGHTS
14.1 Our Intellectual Property. We are the owner or a licensee of all intellectual property rights in the technology used to provide the THM Services and our licensors and their licensors are owners of all Licensed Content on THM Services. All rights are reserved. Nothing in these terms and conditions gives You a right to use any of our trade names, trademarks, service marks, logos, domain names, and other distinctive brand features. You may not copy, modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit any of our intellectual property, in whole or in part, except as is expressly permitted herein.
14.2 Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use, copy, modify and incorporate into the THM Services any suggestions, enhancement requests, recommendations or other feedback provided by You, relating to the operation of the THM Services more generally.
15. DISCLAIMERS AND LIMITATIONS OF LIABILITY
YOUR USE OF THE WEBISTE, OUR MOBILE APPLICATIONS AND ACCESS TO THE THM SERVICES IS AT YOUR OWN RISK. NEITHER THM, NOR ITS LICENSORS(WHICH INCLUDES AUTHORS AND PUBLISHERS) AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS WARRANT THAT THE USE OF THE THM SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE THM SERVICES AND LICENSED CONTENT OR AS TO THE ACCURACY, RELIABILITY OR SUITABILITY OF ANY CONTENT ON THE THM SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THM OR THROUGH OR FROM USE OF THE THM SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE. THE THM SERVICES AND LICENSED CONTENT IS PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR AUDIENCE, AND NON-INFRINGEMENT. IN NO EVENT WILL THM, ITS LICENSORS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (EVEN IF THM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF YOUR USE OF OR INABILITY TO ACCESS AND USE THE WEB SITE, LICENSED CONTENT OR THE THM SERVICES, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS, LOSS OF GOODWILL, LOST BUSINESS, LOST DATA, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DAMAGES OR LOSSES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO THM’S RECORDS, PROGRAMS, SERVICES OR SYSTEMS. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS THM’S AND ITS LICENSORS’ LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING OR ANYTHING ELSE HEREIN CONTAINED, IN NO EVENT WILL THM OR ITS LICENSORS BE LIABLE TO YOU FOR ANY DAMAGES, COSTS, CLAIMS OR OTHER LIABILITIES RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, IN EXCESS OF THE TOTAL FEES PAID BY YOU FOR THE RIGHT TO ACCESS AND USE THE THM SERVICES AND LICENSED CONTENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR ACT GIVING RISE TO THE CAUSE OF ACTION. This Section 15 will apply to the maximum extent permitted under applicable law.
All notices given by you to us must be given to THM at email@example.com. We may give notice to you at either the e-mail or postal address you provide to us on your Order Form or Web Enrollment. Notice will be deemed received and properly served immediately when posted on the THM Services, 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail,that such e-mail was sent to the specified e-mail address of the addressee.
You may not transfer, assign, or charge any of your rights or obligations arising under the Agreement, without our prior written consent.
If any of these terms is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.
19. COMPLIANCE WITH LAWS
Each party will comply with all applicable laws, rules, regulations, orders and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction in connection with its activities under the Agreement.
No waiver by us, in exercising any right shall operate as a waiver of any other right or of that same right at a future time; nor shall any delay in exercise of any power or right be interpreted s a waiver.
21. ENTIRE AGREEMENT
These terms and conditions and any document expressly referred to in them represent the entire agreement between us and supersede any prior agreement, understanding or arrangement between us, whether oral or in writing.
22. GOVERNING LAW
If You reside in Canada and use the THM Services in Canada, this Agreement is to be construed under the laws of the Province of Ontario. Otherwise, this Agreement is to be construed under the laws of the State of New York, excluding any body of law governing conflicts of law. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this Agreement. In the event of a dispute arising out of or in connection with the terms of this Agreement between you and us, then you agree to attempt to settle the dispute by engaging in good faith negotiations with us in a process of mediation before commencing arbitration or litigation. TO THE MAXIMUM EXTENT PERMITTED BY LOCAL LAW, YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE THM SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.