Topaz Terms of Service
Effective: February 21, 2019
Thanks for using Topaz! These terms of service (“Terms”) cover your use and access to the services, client software and websites ("Services") of Opcode, Inc., doing business and referred to as “Topaz”.
Your Acceptance of Terms
Your Data & Your Permissions
When you use our Services, you provide us with things like your files, data, and so on (“Your Data”). These Terms don’t give us any rights to Your Data except for the limited rights that enable us to offer the Services.
Our systems may access, store, scan, or otherwise handle Your Data. You give us permission to do those things, and this permission extends to our affiliates and trusted third parties we work with.
You’re responsible for your conduct. You agree not to misuse the Services or help anyone else to do so. You are required to comply with all applicable statutes, orders, regulations, rules, and other laws. In addition, we expect users of the Services to respect the rights and dignity of others. Your use of the Services is conditioned on your compliance with the rules of conduct set forth in this section.
You may not take any action to interfere with the Services or any other user’s use of the Services. You may not decompile, reverse engineer or disassemble products or processes accessible through the Services, nor insert any code or product or manipulate the Services in any way that affects any user’s experience.
You agree that you will neither use the Services in a manner, nor share any content, that: (a) is false or misleading; (b) is defamatory, derogatory, degrading or harassing of another or constitutes a personal attack; (c) invades another's privacy or includes, copies or transmits another's confidential, sensitive or personal information; (d) promotes bigotry, racism, hatred or harm against any group or individual; (e) is obscene or not in good taste; (f) violates or infringes or promotes the violation or infringement of another's rights, including intellectual property rights; (g) you do not have the right and authority to share and grant the necessary rights and licenses for; (h) violates or promotes the violation of any applicable laws or regulations; (i) contains a solicitation of funds, goods or services, or promotes or advertises goods or services; or (j) contains any viruses, Trojan horses, or other components designed to limit or harm the functionality of a computer.
We may review your conduct and content for compliance with these Terms. With that said, we have no obligation to do so. We aren’t responsible for the content people post and share via the Services.
Help us keep you informed and Your Data protected. Safeguard your password to the Services, and keep your account information current. Don’t share your account credentials or give others access to your account.
You may use our Services only as permitted by applicable law, including export control laws and regulations. To use our Services, you must be of required minimum age in your jurisdiction. Please check your local law for the age of digital consent. If you don’t meet these age requirements, you may not use the Services. Finally, if you are using the Services on behalf of a legal entity, you may not use the Services unless the entity is duly organized and validly existing in your jurisdiction, and that you are duly authorized to act on its behalf.
Some of our Services allow you to download client software (“Software”) which may update automatically. So long as you comply with these Terms, we give you a limited, nonexclusive, nontransferable, revocable license to use the Software, solely to access the Services. To the extent any component of the Software may be offered under an open source license, we’ll make that license available to you and the provisions of that license may expressly override some of these Terms. Unless the following restrictions are prohibited by law, you agree not to reverse engineer or decompile the Services, attempt to do so, or assist anyone in doing so.
We sometimes release products and features that we are still testing and evaluating. Those Services have been marked beta, preview, early access, or evaluation (or with words or phrases with similar meanings) and may not be as reliable as Topaz’s other services, so please keep that in mind.
The Services are protected by copyright, trademark, and other US and foreign laws. These Terms don’t grant you any right, title, or interest in the Services, others’ content in the Services, Topaz trademarks, logos and other brand features. We welcome feedback, but note that we may use comments or suggestions without any obligation to you.
We respect the intellectual property of others and ask that you do too. We respond to notices of alleged copyright infringement if they comply with the law, and such notices should be reported using our Copyright Policy. We reserve the right to delete or disable content alleged to be infringing and terminate accounts of repeat infringers. Our designated agent for notice of alleged copyright infringement on the Services is:
Billing. You can increase your service level and add paid features to your account (turning your account into a "Paid Account"). We’ll automatically bill you from the date you convert to a Paid Account and on each periodic renewal until cancellation. If you’re on an annual plan, we’ll send you a notice email reminding you that your plan is about to renew within a reasonable period of time prior to the renewal date. You’re responsible for all applicable taxes, and we’ll charge tax when required to do so. Some countries have mandatory local laws regarding your cancellation rights, and this paragraph doesn’t override these laws.
No Refunds. You may cancel your Paid Account at any time. Refunds are only issued if required by law.
Downgrades. Your Paid Account will remain in effect until it's cancelled or terminated under these Terms. If you don’t pay for your Paid Account on time, we reserve the right to suspend it or reduce your service level.
Changes. We may change the fees in effect but will give you advance notice of these changes via a message to the email address associated with your account.
You’re free to stop using our Services at any time. We reserve the right to suspend or terminate your access to the Services with notice to you if:
(a) you’re in breach of these Terms,
(b) you’re using the Services in a manner that would cause a real risk of harm or loss to us or other users, or
(c) you don’t have a Paid Account and haven't accessed our Services for 12 consecutive months.
We’ll provide you with reasonable advance notice via the email address associated with your account to remedy the activity that prompted us to contact you and give you the opportunity to export Your Data from our Services. If after such notice you fail to take the steps we ask of you, we’ll terminate or suspend your access to the Services.
We won’t provide notice before termination where:
(a) you’re in material breach of these Terms,
(b) doing so would cause us legal liability or compromise our ability to provide the Services to our other users, or
(c) we're prohibited from doing so by law.
Discontinuation of Services
We may decide to discontinue the Services in response to unforeseen circumstances beyond Topaz’s control or to comply with a legal requirement. If we do so, we’ll give you reasonable prior notice so that you can export Your Data from our systems. If we discontinue Services in this way before the end of any fixed or minimum term you have paid us for, we’ll refund the portion of the fees you have pre-paid but haven't received Services for.
Services “AS IS”
We strive to provide great Services, but there are certain things that we can't guarantee. TO THE FULLEST EXTENT PERMITTED BY LAW, TOPAZ AND ITS AFFILIATES, SUPPLIERS AND DISTRIBUTORS MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE SERVICES. THE SERVICES ARE PROVIDED "AS IS." WE ALSO DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Some places don’t allow the disclaimers in this paragraph, so they may not apply to you.
Limitation of Liability
WE DON’T EXCLUDE OR LIMIT OUR LIABILITY TO YOU WHERE IT WOULD BE ILLEGAL TO DO SO—THIS INCLUDES ANY LIABILITY FOR TOPAZ’S OR ITS AFFILIATES’ FRAUD OR FRAUDULENT MISREPRESENTATION IN PROVIDING THE SERVICES. IN COUNTRIES WHERE THE FOLLOWING TYPES OF EXCLUSIONS AREN’T ALLOWED, WE'RE RESPONSIBLE TO YOU ONLY FOR LOSSES AND DAMAGES THAT ARE A REASONABLY FORESEEABLE RESULT OF OUR FAILURE TO USE REASONABLE CARE AND SKILL OR OUR BREACH OF OUR CONTRACT WITH YOU. THIS PARAGRAPH DOESN’T AFFECT CONSUMER RIGHTS THAT CAN'T BE WAIVED OR LIMITED BY ANY CONTRACT OR AGREEMENT.
IN COUNTRIES WHERE EXCLUSIONS OR LIMITATIONS OF LIABILITY ARE ALLOWED, TOPAZ, ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS WON’T BE LIABLE FOR:
i. ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR
ii. ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS, REGARDLESS OF LEGAL THEORY.
THESE EXCLUSIONS OR LIMITATIONS WILL APPLY REGARDLESS OF WHETHER OR NOT TOPAZ OR ANY OF ITS AFFILIATES HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES.
IF YOU USE THE SERVICES FOR ANY COMMERCIAL, BUSINESS, OR RE-SALE PURPOSE, TOPAZ, ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS WILL HAVE NO LIABILITY TO YOU FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OPPORTUNITY. TOPAZ AND ITS AFFILIATES AREN’T RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES.
OTHER THAN FOR THE TYPES OF LIABILITY WE CANNOT LIMIT BY LAW (AS DESCRIBED IN THIS SECTION), WE LIMIT OUR LIABILITY TO YOU TO THE GREATER OF $20 USD OR 100% OF ANY AMOUNT YOU'VE PAID UNDER YOUR CURRENT SERVICE PLAN WITH TOPAZ.
We want to address your concerns without needing a formal legal case. Before filing a claim against Topaz, you agree to try to resolve the dispute informally by contacting firstname.lastname@example.org. We’ll try to resolve the dispute informally by contacting you via email. If a dispute is not resolved within 15 days of submission, you or Topaz may bring a formal proceeding.
You and Topaz agree that any judicial proceeding to resolve claims relating to these Terms or the Services will be brought in the federal or state courts of Dade County, Florida, subject to the mandatory arbitration provisions below. Both you and Topaz consent to venue and personal jurisdiction in such courts.
IF YOU’RE A U.S. RESIDENT, YOU ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION PROVISIONS:
We Both Agree To Arbitrate. You and Topaz agree to resolve any claims relating to these Terms or the Services through final and binding arbitration by a single arbitrator, except as set forth under Exceptions to Agreement to Arbitrate below. This includes disputes arising out of or relating to interpretation or application of this “Mandatory Arbitration Provisions” section, including its enforceability, revocability, or validity.
Opt-out of Agreement to Arbitrate. You can decline this agreement to arbitrate by sending a notice of your decision to opt-out to email@example.com within 30 days of first registering your account. However, if you agreed to a previous version of these Terms that allowed you to opt out of arbitration, your previous choice to opt out or not opt out remains binding.
Arbitration Procedures. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, Miami (FL), or any other location we agree to. The AAA rules will govern payment of all arbitration fees.
Exceptions to Agreement to Arbitrate. Either you or Topaz may assert claims, if they qualify, in small claims court in Miami (FL) or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the state and federal courts in Dade County, Florida to resolve your claim.
NO CLASS ACTIONS. You may only resolve disputes with us 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. If this specific paragraph is held unenforceable, then the entirety of this “Mandatory Arbitration Provisions” section will be deemed void.
These Terms will be governed by Florida law except for its conflicts of laws principles. However, some countries (including those in the European Union) have laws that require agreements to be governed by the local laws of the consumer's country. This paragraph doesn’t override those laws.
These Terms constitute the entire agreement between you and Topaz with respect to the subject matter of these Terms, and supersede and replace any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of these Terms. These Terms create no third party beneficiary rights.
Waiver, Severability & Assignment
Topaz’s failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable, the remaining provisions of the Terms will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights under these Terms, and any such attempt will be void. Topaz may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services.
We may revise these Terms from time to time to better reflect:
(a) changes to the law,
(b) new regulatory requirements, or
(c) improvements or enhancements made to our Services.
If an update affects your use of the Services or your legal rights as a user of our Services, we’ll notify you prior to the update's effective date by sending an email to the email address associated with your account or via an in-product notification. These updated terms will be effective no less than 30 days from when we notify you.
If you don’t agree to the updates we make, please cancel your account before they become effective. Where applicable, we’ll offer you a prorated refund based on the amounts you have prepaid for Services and your account cancellation date. By continuing to use or access the Services after the updates come into effect, you agree to be bound by the revised Terms.