Last Updated: 7 December 2017
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” mobile application for our Concepts Pro Edition (“App”) and the website located at www.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 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, except for in this sentence, refer to that organization or entity).
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.
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 your 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.
This should be pretty self-explanatory! If you buy something from us, we’ll charge your card accordingly.
The Services are currently free; however, certain products and services available through the App or Website may have associated fees. If you purchase any such products or services, you hereby authorize TopHatch and its Third Party Provider (for payments) to charge your credit card for such payment(s).
Additionally, if you choose to enroll in our subscription program, you will be charged a monthly or annual subscription fee depending on the option you select upon enrollment (“Subscription Fee”). The Subscription Fee will be charged to you in advance, either through the in-app purchase functionality (if available) or to the credit card you provided upon enrollment, and you hereby authorize TopHatch and its Third Party Provider (for payments) to charge your payment method for such payment(s). Subscription Fees are non-refundable. Unless you opt out of auto-renewal, any subscription Services you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. If you terminate a subscription Service, you may use your subscription until the end of your then-current term; your subscription will not be renewed after your then-current term expires.
You will ensure that your payment details (such as your credit card number) are accurate and up-to-date at all times.
We disclaim all legal warranties with respect to the Service.
THE SERVICE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES 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. 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 DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
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, STRICT LIABILITY, 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, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, EVEN IF FORESEEABLE, (II) 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 PRODUCTS OR SERVICES YOU PURCHASE OR OTHERWISE RECEIVE THROUGH THE SERVICE.
THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
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 breach of this Agreement, or (ii) 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 App is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
You will only use the App in connection with an Apple device that you own or control;
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, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the App;
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;
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.
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, we 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 firstname.lastname@example.org. 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.
Note that we use arbitration except in these limited cases.
Abritration. Any disputes that are not settled informally shall be settled by binding arbitration in accordance with the rules and procedures of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”). The arbitrator shall be selected by joint agreement between you and TopHatch. In the event the parties cannot agree on an arbitrator within thirty (30) days of the initiating party providing the other party with written notice that it plans to seek arbitration, the parties shall each select an arbitrator affiliated with JAMS, which arbitrators shall jointly select a third such arbitrator to resolve the dispute. The written decision of the arbitrator shall be final and binding on the parties and enforceable in any court. The arbitration proceeding shall take place in San Francisco, California using the English language. 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.
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.
These are the rest of our terms. Stuff dealing with how this Agreement should be read, what laws apply, 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 results from any cause beyond TopHatch’s reasonable control. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. 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 shall be governed by and construed in accordance with the laws of the state of California, as if made within California between two residents thereof. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement.
You can contact us at our mailing address or via email
Mailing Address: TopHatch, Inc. 141 Valley Road, San Carlos. CA 94070. USA