Introduction
These Terms of Use (the “Terms”) are a legally binding written contract between you and/or your company (collectively, “you(r)”) and Bespoke, Inc., which does business as Topology Eyewear (“Company,” “we,” “us,” or “Topology”) governing your use of our services, including our virtual try-on services, software, technology, websites, and apps (collectively, the “Service(s)”). When you use the Services, you are agreeing to these Terms and our policies, and you may not use the Services if you do not consent. If you have any questions, please contact us at hello@TopologyEyewear.com.
Privacy
These Terms incorporate by reference our Privacy Policy, which details our privacy practices. Please review it for more information about how we collect, use, and treat your information. Some parts of the Services may have other terms or policies, which will apply and be available to you if you use those parts of the Services.
Disputes and Arbitration
These Terms contain an “Arbitration Agreement” where you waive your right to a jury trial and to bring a class action.
What is arbitration?
Legal disputes are usually resolved in a court of law in front of a judge and, sometimes, a jury. Court cases are a matter of public record. Arbitration is a less formal and more private way of resolving disputes. Instead of going to court, the parties give their arguments and evidence to an arbitrator, and the arbitrator decides who “wins” the case by applying the law in the same way that a judge would. Instead of a courtroom, arbitrations are generally held in a private office, such as a conference room, or by videoconference.
What is our Arbitration Agreement?
Under these Terms, ANY DISPUTE OR CLAIM BETWEEN YOU AND US RELATING TO YOUR USE OF THE SERVICES, THESE TERMS, THE PRIVACY POLICY, OR ANY OF OUR RELATED PRACTICES MUST BE RESOLVED EXCLUSIVELY THROUGH BINDING ARBITRATION. This means that we all agree that we will only resolve our legal disputes through arbitration and not in a court of law. Without this Arbitration Agreement, you would have had the right to sue in court with a jury trial. This Arbitration Agreement applies to United States (“US”) residents and other users to the fullest extent permitted by applicable laws. If you reside outside the US, you may have the right to initiate a dispute in your location of residence under the laws where you reside.
How will the arbitration work?
The arbitration must be filed and conducted through JAMS (www.jamsadr.com), which is a provider of arbitration services in the US and internationally. JAMS’ Streamlined Rules will apply. All claims, remedies, and defenses that you or we have under applicable law (whether federal, state, or local) will remain available. Each of us will participate in choosing a neutral arbitrator using the process in the Streamlined Rules. Unless you waive this requirement, the final arbitration hearing (which is like a trial) will take place in person at the JAMS facility closest to your home. The arbitrator’s award will consist of a written statement explaining the arbitrator’s decision on each claim. The award will also include a concise written statement of the findings of fact and conclusions of law on which the award is based. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so.
What law will the arbitrator follow?
The laws of the State of California will govern these Terms. The arbitrator will apply California law to the claims. This Arbitration Agreement will be governed by the Federal Arbitration Act.
Who pays for the arbitration?
In most cases, the only fee you will have to pay to JAMS is $250; we will pay all other arbitration costs. However, if the arbitrator decides that you filed your claim in bad faith and without any legal basis, the arbitrator can require you to pay more of the fees for the arbitration, other than attorneys’ fees. Regardless of who wins, you will be responsible for paying your attorneys’ fees, and we will be responsible for paying ours. The only exception is if the claim is brought under a law, which the arbitrator may apply, that specifically allows a party to recover its attorneys’ fees.
When will a court will get involved?
There are things an arbitrator cannot do, like order a party to act or stop doing something—this is known as “equitable relief”—or rule upon certain small claims actions. Either one of us can go to court and seek this relief, including by filing a motion to compel the other party to honor the Arbitration Agreement. However, you and we agree that the only courts where we will seek equitable relief—or file any legal proceeding outside of arbitration—are the state and federal courts in San Francisco, California. This exception does not waive our Arbitration Agreement.
Can I file a class action?
No. You and we agree that we will only file claims against each other individually and not as a plaintiff or class member in a representative proceeding. THIS MEANS CLASS ACTIONS ARE NOT ALLOWED.
Eligibility
We only permit individuals who are at least 18 years old and can form legally binding contracts with us to use the Services. However, if you are under 18 years old and would like to use the Services, you can, but only if a parent or legal guardian who is at least 18 years old supervises you. In such cases, the adult would be the user and is responsible for any and all activity. However, if you are younger than 13 years old, or younger than 16 years old if outside of the US, you may not use the Services. Also, you can only use the Services to the extent applicable laws do not bar you from doing so. Your use of the Services means you represent and warrant that you meet all eligibility requirements outlined in these Terms. We may still refuse to let certain people access or use the Services, subject to applicable laws.
If you are using the Services on behalf of a company, you represent and warrant that you are authorized to act on behalf of that company, including by agreeing to binding contracts. We offer the Services only for personal, noncommercial use, unless you have received explicit authorized permission in writing from Bespoke, Inc. dba Topology Eyewear. You further warrant that you are not located in a country that is subject to a US government embargo and are not listed on any US government list of prohibited or restricted parties.
Third-Party Eye Care Providers
We help eyecare and eyewear professionals and retailers and related providers (collectively, “Eye Care Provider(s)”) sell their eyewear-related products through our photo-realistic virtual try-on services and eyewear fitting services. We act as a service provider and business associate for these third-party Eye Care Providers. We are not a party to any transaction between you and an Eye Care Provider. Where you contract with an Eye Care Provider, we do not accept payment, fulfill your product orders, or process requests for refunds or exchanges. If you paid an Eye Care Provider, including one that you found through the Services, you should raise all payment, shipping, and refund inquiries with the Eye Care Provider. Your dealings with an Eye Care Provider are covered by any separate contract and privacy policy between you and the Eye Care Provider.
Specifically, Topology provides a technology platform and services for independent third-party Eye Care Providers. Topology does not provide optometric or medical services via these Services, including any medical advice, diagnosis, or treatment. Eye Care Providers are solely responsible for provision of any medical services, including relating to prescriptions for eyewear.
“Third parties,” including Eye Care Providers and our vendors, are any person or business other than you or us. Third parties are solely responsible for their own content and practices. We do not review all third-party content and do not guarantee that it is accurate, complete, or useful. The Services may contain links to third-party websites or apps or references to Eye Care Providers. Some of these third parties may have a business relationship with us while others do not. Regardless, we are not responsible for any third-party content or practices. Except where we’ve expressly indicated an affiliate relationship or other endorsement, we do not represent or endorse any third-party, including any of their information, goods, or services.
Intellectual Property and Content
Our Intellectual Property
Our name, logo, images, text, website domains, trademarks, service marks, the “look and feel” of the Services, copyrights, and all content and other materials appearing on or available through the Services (collectively, the “Topology IP”), including without limitation, all designs, illustrations, icons, photographs, video clips, and written materials, as well as the compilation of the website, Services, and other materials (but not including your User Content or third-party content outlined below), are intellectual property exclusively owned by Topology and/or our licensors and suppliers and are protected by US and international laws. Nothing in these Terms grants you any right, title, license, or interest in the Topology IP, other than the limited license below. You shall not at any time, nor shall you assist others to, challenge Topology’s right, title, or interest in, or the validity of, the Topology IP. You may not display, reproduce, or otherwise use the Topology IP without first receiving written consent from us. You may not remove or otherwise modify any legal or trademark notices from any content through the Services. Scraping the Services or using other automated or manual means to take Topology IP without our prior consent is expressly prohibited. Any unauthorized use of Topology IP is strictly prohibited and may violate copyright, trademark, and/or other intellectual property laws, and/or the laws of privacy, publicity, and/or communications regulations and statutes.
If you would like to request authorization to partner with us to use the materials or technology involving the Services, please contact us at newbusiness@TopologyEyewear.com.
Limited License to Use the Services
So long as you comply with these Terms (including incorporated policies), Topology grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to access and use the Services for your personal, non-commercial use. This license does not allow you reproduce, modify, duplicate, copy, sell, resell, distribute, transmit, or otherwise exploit (for any commercial purpose or otherwise) any part of the Services, including the content of others, unless you first obtain our written permission. We reserve all rights not expressly granted in these Terms. If you breach any of these Terms, your license will automatically terminate.
User Content and License to Topology
Occasionally, you may opt to post information about us or the Services. When you publicly distribute or post any reviews, testimonials, or endorsements to or about Topology or the Services (either through the Services or third-party websites or social media pages), this is collectively your “User Content.” Sharing of User Content gives us a right and license to use, copy, reproduce, process, adapt, modify, publish, transmit, display, and distribute your User Content in any and all media formats or distribution channels. You agree that this license includes the right for Topology to use your User Content to provide, promote, and improve the Services. You agree that this license is irrevocable to the extent already used, non-exclusive, perpetual, worldwide, transferable, sublicensable, fully paid, royalty-free, and will survive termination. Please note that we may use User Content without compensation of any kind to you, including if we use User Content for advertising or promotional purposes. You also agree that if your User Content contains any ideas, concepts, know-how, or techniques, we can use the User Content and anything it contains for any purpose including, but not limited to, developing, manufacturing, and marketing products.
When you submit User Content, you represent and warrant that you hold all necessary right, title, and license to the User Content; that your submission of such materials to Topology does not and will not violate or infringe the rights of any third-parties, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights; and all User Content you provide is accurate, complete, up-to-date, and not misleading. You will keep all ownership or license rights in your User Content. You are also responsible for all of your User Content.
You must not post User Content or otherwise transmit materials about us that contain software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit, or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password, or other information of ours or of any third party; impersonate any person or entity; or include any identification or sensitive information without permission.
No Representations for Third-Party Content or User Content
You may see a lot of different content on the Services. Some of this content will come from other users or sources outside of Topology. All content, including User Content and third-party content, is the responsibility of the party that creates it. We may review content on the Services, but we do not have an obligation to do so. We reserve the right to remove, block, or modify any content on the Services, including User Content, without notice or obligation.
We take no responsibility related to third-party content or User Content. Topology does not control or endorse any User Content or third-party content, and we make no claims or representations regarding any content we do not create. We may provide links to third-party sites or resources, but these links do not mean we endorse or have any associations with the third parties. If any damage or loss results from your use of, reliance on, or any other connection between you and any content that any third party makes available, you acknowledge and agree that we are not responsible or liable, directly or indirectly. When you access third-party resources on the internet, you do so at your own risk.
Digital Millennium Copyright Act
We follow the notice and takedown procedures in the Digital Millennium Copyright Act ("DMCA"). If you believe content on the Services violates your copyright, please immediately notify us by emailing a DMCA "Infringement Notice" to hello@TopologyEyewear.com. Your Infringement Notice should include all the information described below:
· Identification of your copyrighted work.
· A description of the content you believe infringes your copyright (the “Infringing Content”). Your description should include enough information about the nature and location of the Infringing Content to allow us to locate it on the Services.
· Your name, address, telephone number, and email address.
· The name, address, telephone number, email address, or other information (for example, username) of the user who posted the Infringing Content.
· A written statement by you that:
o you believe in good faith that the use of the material that you claim to infringe your copyright is not authorized by the copyright owner or by law; and
o you declare, under penalty of perjury, that all the information contained in your Infringement Notice is accurate, and that you are either the copyright owner or a person authorized to act on their behalf.
· Your signature, whether electronic or physical, as the copyright owner or a person authorized to act on behalf of the copyright owner.
Your Infringement Notice should have the subject line “DMCA Infringement Notice.” We will respond to all compliant Infringement Notices by taking any action required under the DMCA. Please note that the DMCA requires that your Infringement Notice be submitted in good faith. You are required to evaluate whether the use of your content on the Services is a “fair use,” as fair uses are allowed under the law. If you are not sure if the Infringing Content infringes your copyright, you should consult with an attorney. If you submit an Infringement Notice in bad faith, the user who posted the Infringing Content could have legal claims against you. Infringement Notices are not anonymous. If we act in response to your Infringement Notice—such as by removing the Infringing Content—we will pass on your Infringement Notice to that user with an opportunity to respond. You may submit a DMCA counter notice to the same email above.
Warranty Disclaimers
THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TOPOLOGY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SERVICES OR ANY CONTENT ON THE SERVICES, WHETHER PROVIDED OR OWNED BY TOPOLOGY OR BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN ADDITION, TOPOLOGY DOES NOT REPRESENT OR WARRANT THAT THE CONTENT ACCESSIBLE VIA THE SERVICES IS ACCURATE, COMPLETE, AVAILABLE, CURRENT, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. Your interactions with organizations and/or individuals found on or through the Services, including Eye Care Provider(s), and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such organizations and/or individuals.
Limitations of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TOPOLOGY OR ANYONE REPRESENTING TOPOLOGY BE LIABLE TO YOU UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR (A) ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER RESULTING FROM: (I) YOUR ACCESS TO, USE OF, OR RELIANCE ON ANY CONTENT PROVIDED THROUGH THE SERVICES OR ANY ERRORS OR OMISSIONS IN ANY CONTENT; (II) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES OR TOPOLOGY’S SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; OR (IV) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY (REGARDLESS OF THE SOURCE OF ORIGINATION) OR (B) ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE GREATER OF YOUR PAYMENTS IN CONNECTION WITH THE SERVICES OR $100.00. THESE LIMITATIONS APPLY REGARDLESS OF FORESEEABILITY OR LEGAL THEORY, WHETHER BASED ON TORT, STRICT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TOPOLOGY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Prohibited Conduct
To maintain the Services for all users, we have certain prohibitions. You may not do any of the following in connection with the Services: provide any false, misleading, or inaccurate information; impersonate anyone or mispresent your affiliation; harvest or collect personal data of other users; access content not intended for you; take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our or our third party providers’ infrastructure; interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; bypass, circumvent, or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services, including without limitation other accounts, computer systems, or networks connected to the Services; run any form of auto-responder or “spam” on the Services; scrape, modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used in providing the Services; or otherwise take any action in violation of these Terms or our other policies.
Changes to Terms
We may need to make changes to these Terms and our incorporated policies from time to time, including to keep up with changes in the law. If we make a change material to your use of the Services, we will notify you in advance so you can decide whether you want to continue using the Services after the change takes effect. Your continued use of the Services after the change constitutes your consent to the updated Terms and polices.
Miscellaneous Provisions
We take our commitment to customers seriously, and we prioritize customer service. However, sometimes things may come up that are outside of our control. We will not be liable for any failure to perform any of our obligations stated in these Terms if the failure results from a cause beyond our reasonable control, including mechanical, electronic, or communications failure or degradation, pandemics or epidemics, or unforeseeable acts beyond our control.
We reserve the right to terminate your license to use the Services or block or prevent your access to the Services without providing you with notice if you violate or are suspected of violating these Terms or any applicable laws. In the event of termination, your obligations under these Terms will survive.
You agree to indemnify, defend, and hold harmless Topology, its officers, directors, employees, agents, subsidiaries, affiliates, licensors, and suppliers, from and against any claim, actions, demands, liabilities, and settlements, including reasonable legal and accounting fees, resulting from, or alleged to result from, your violation of these Terms or any applicable laws.
You cannot assign, transfer or sublicense these Terms without first obtaining our consent. On the other hand, we may assign, transfer, or delegate any of our rights and obligations without consent, including if there is a sale or transfer of our business.
These Terms do not create any agency, partnership, joint venture, or employment relationship, and neither party has any authority to bind the other in any respect.
The section and paragraph headings in these Terms are for convenience only.
You consent to receive notices, disclosures, and other communications electronically. You agree that these electronic notices satisfy any requirements that communications be in writing.
These Terms constitute the entire agreement between you and Topology and supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written with respect to these Services. Any rights not expressly granted herein are reserved. If you are a business partner, affiliate, or Eye Care Provider, we may enter into a separate contract.
If it turns out that any part of these Terms is invalid, void, or for any reason unenforceable, that term will be deemed severable and limited or eliminated to the minimum extent necessary. The limitation or elimination of the term will not affect any other terms.
A waiver by either you or Topology of any term or condition of these Terms, or any breach, in any one instance, will not waive that term or condition or any later breach.
The provisions of these Terms which, by their nature, should survive termination shall survive such termination, including the sections entitled Disputes and Arbitration, Intellectual Property and Content, Disclaimers and Limitations, Prohibited Conduct, and Miscellaneous Provisions.
