TOPCOAT® TERMS AND CONDITIONS OF USE
YOUR USE OF THE SITE CONSTITUTES YOUR AGREEMENT TO FOLLOW AND BE BOUND BY THE AGREEMENT. WE RESERVE THE RIGHT TO UPDATE OR MODIFY THIS AGREEMENT AT ANY TIME WITHOUT PRIOR NOTICE. FOR THIS REASON, WE ENCOURAGE YOU TO REVIEW THE AGREEMENT WHENEVER YOU USE THE SITE. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT USE THE SITE.
We reserve the right, at any time in our sole discretion, to modify, suspend or discontinue the Site or any service, content, feature, or product offered through the Site, with or without notice and/or offer opportunities to some or all users of the Site, for any reason. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Site, or any service, content, feature or product offered through the Site.
Unless otherwise noted, the Site, and all features and materials on the Site, including text, images, illustrations, designs, icons, photographs, video clips, product names, and other content, and the copyrights, trademarks, trade dress and/or other intellectual property in such materials (collectively, the “Content”), are owned, controlled or licensed by TopCoat®.
The Site and the Content are intended solely for personal, non-commercial use. You may download or copy the Content and other downloadable materials displayed on the Site for your personal use only. No right, title or interest in any downloaded Content is transferred to you as a result of any such downloading or copying. You may not reproduce (except as noted above), publish, transmit, distribute, display, modify, create derivative works from, sell or exploit in any way any of the Content or the Site.
Unless otherwise specified, the Site and the Content are intended to promote our products and services available in the United States. The Site is controlled and operated by TopCoat Products, LLC from its offices located at 979 Worthington Avenue, Green Cove, FL 32043.
In order to access certain portions of the Site, you may be required to register with TopCoat®. In doing so, you agree to provide and maintain true, accurate, and complete information about yourself. If you are under 13 years of age, you may not use or register to use the Site. If you are under the age of majority in the applicable jurisdiction, you may only use or register to use the Site with the consent of your parent or guardian.
You are solely responsible for all use of the Site under your account information and for maintaining the confidentiality of your account information. You agree not to hold TopCoat® liable for any damages of any kind resulting from your disclosure of your account information to any third party, including, but not limited to, entities that aggregate account information or website content, or persons who are or claim to be acting as your agent, proxy or advisor. If you inform TopCoat® or TopCoat® has reason to believe that the security of your account may be or has been compromised, we have the right to suspend or terminate your use of the Site or require that your account information be changed.
You agree to: (i) promptly notify TopCoat® of any actual or suspected unauthorized use of the Site, and (ii) ensure that you exit from your account at the end of each session.
Occasionally there may be information on the Site that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, promotions, offers, and availability. We reserve the right to correct any errors, inaccuracies or omissions and to change or update information or cancel orders if any information on the Site is inaccurate at any time without prior notice (including after you have submitted your order).
TopCoat® is pleased to hear from our customers and welcomes your comments regarding our products and services. However, if you send data, questions, comments, suggestions or other materials, whether online, by email, by postal mail, or otherwise (collectively, “User Content”), you agree that TopCoat® may, at any time, without restriction, edit, copy, publish, distribute, translate, and otherwise use in any medium any User Content that you forward to TopCoat®. TopCoat® is and shall be under no obligation:
(a) to maintain any User Content in confidence;
(b) to pay compensation for any User Content; or
(c) to respond to any User Content.
TopCoat® has the right but not the obligation to monitor and edit or remove any User Content. You agree that your User Content will not violate any right of any third party, including copyright, trademark, privacy or other personal or proprietary right. You further agree that your User Content will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the TopCoat® or third parties as to the origin of any User Content. You are solely responsible for any User Content you make and its accuracy. TopCoat® takes no responsibility and assumes no liability for any User Content posted by you or any third party.
TopCoat and/or its affiliates may deliver notice to you by means of e-mail, a general notice on the site, or by other reliable method to the address you have provided to TopCoat. In addition, if you provide your residential or cellular telephone number to TopCoat without any limitation, you acknowledge, agree and consent that TopCoat or its affiliates and vendors may contact you regarding products and services by automated means, which may include the use of an automatic telephone dialing system and/or autodialer. Your consent is not a condition of purchase.
All purchases through the Site or other transactions for the sale of goods formed through the Site or resulting from visits made by you are governed by our Terms of Sale / Refund Policy, which are hereby incorporated into this Agreement.
The Site is intended to be used only for lawful purposes. You are prohibited from posting on or transmitting through the Site any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, indecent, scandalous, profane, bigoted or hateful, libelous, racially, ethnically, or otherwise objectionable material of any kind, including but not limited to any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or international law. In addition, you may not engage in any activity on the Site that restricts or inhibits any other user from using or enjoying the Site by means of “hacking,” “cracking,” “spoofing,” or disabling or defacing any portion of the Site.
If TopCoat® is notified of allegedly defamatory, damaging, illegal, or offensive content provided by a user, TopCoat® may investigate the allegation and determine, at its sole discretion, whether to remove or request the removal of such content from the Site. TopCoat® may disclose any content or electronic communication of any kind: (i) to satisfy any law, regulation, or government request; (ii) if such disclosure is necessary or appropriate to operate the Site; or (iii) to protect the rights or property of TopCoat®, its users or third party service providers.
TopCoat® reserves the right to prohibit conduct, communication, or content that it deems, in its sole discretion, to be harmful to individual users or TopCoat®; any rights of TopCoat® or any third party; or to violate any applicable law. Notwithstanding the foregoing, neither TopCoat® nor its providers can ensure prompt removal of questionable content after online posting. Accordingly, neither TopCoat® nor its affiliates, nor any of their officers, directors, employees, or agents, nor providers shall assume liability for any action or inaction with respect to conduct, communication, or content on the Site.
TopCoat® may terminate your access, or suspend your access to all or part of the Site, without notice, for any conduct that TopCoat®, in its sole discretion, believes is in violation of any applicable law or is harmful to the interests of another user, a third-party provider, a service provider, or TopCoat®.
You may not post or transmit through the Site: advertising or commercial solicitations; software or other materials that contain so-called viruses, worms, time bombs, Trojan horses, or other harmful or disruptive components; political campaign materials; chain letters; mass mailings; spam mail; material protected by copyright, trademark or any other proprietary right; any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the Site or the Content; or posts that express or imply that any statements you make are endorsed by TopCoat®. Additionally, you may not harvest or collect information about Site visitors without their express consent.
TopCoat® or its representatives have the right, but not the obligation, to monitor the Content of the Site to determine compliance with this Agreement. We retain our right to and with our sole discretion, edit, refuse to post or remove any material that we find to be in violation of these conditions or that is otherwise objectionable or offensive. This same discretion applies to our right of disclosure of any material submitted to the Site and circumstances surrounding its submission to any third party in order to operate the Site properly and to protect our sponsors, our visitors, and ourselves and to comply with our legal obligations and government requests.
You consent to the receipt of electronic mail from TopCoat®. You may opt out of future emails about products or services by following instructions contained in an email that you receive from us. We reserve the right, however, to email you important information relating to your account or orders.
TopCoat® respects the intellectual property of others. If you believe that your work has been copied in any way that constitutes copyright infringement, please provide the TopCoat® copyright agent the written information specified below:
The TopCoat® Copyright Agent for notice of claims of copyright infringement on the Site can be reached as follows:
TopCoat Products, LLC
ATTN: Copyright Agent
979 Worthington Avenue
Green Cove Springs, FL 32043
Phone: (877) 838-2672
The Site may contain links to other websites. If you link to another website, you will leave the Site and this Agreement will not apply to your use of, and activities on, those other websites. We encourage you to read the legal notices posted on those other websites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, those websites.
You acknowledge and agree that we have no responsibility for the accuracy or availability of information provided by websites to which you may link from the Site (“Linked Sites”). Links to Linked Sites do not constitute an endorsement by or association with us of such Linked Sites or the content, products, advertising or other materials presented on such Linked Sites. We do not author, edit, or monitor these Linked Sites. You acknowledge and agree that we are not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on such Linked Sites.
You agree to defend, indemnify, and hold harmless TopCoat®, its affiliates, third party service providers, and their respective directors, officers, employees, owners, licensors, licensees, and agents from and against all claims, damages, losses, costs and expenses, including reasonable attorneys’ fees, arising out of a breach of this Agreement by you and/or your activities in connection with the Site or any services related to the Site. We may participate in the defense of any claim. You shall not settle any claim that affects TopCoat® without our prior written approval.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE SITE IS PROVIDED BY TOPCOAT ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, TOPCOAT MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE, OR THE INFORMATION, CONTENT, MATERIALS OR PRODUCTS INCLUDED ON THE SITE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, TOPCOAT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOU ACKNOWLEDGE, BY YOUR USE OF THE SITE, THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THIS DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, TOPCOAT WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SITE, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL PUNITIVE AND CONSEQUENTIAL DAMAGES.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, TOPCOAT, ITS AFFILIATES, AND AGENTS ASSUME NO RESPONSIBILITY FOR ANY CONSEQUENCE RELATING DIRECTLY OR INDIRECTLY TO ANY ACTION OR INACTION YOU TAKE BASED ON THE CONTENT, INFORMATION OR OTHER MATERIALS LOCATED ON THE SITE.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, YOU UNDERSTAND AND AGREE THAT TOPCOAT IS NOT RESPONSIBLE OR LIABLE FOR ANY TRANSACTION BETWEEN YOU AND THIRD PARTY PROVIDERS OF THIRD PARTY APPLICATIONS OR PRODUCTS OR SERVICES ADVERTISED ON OR THROUGH THE SITE. AS WITH ANY PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, NO ADVICE OR INFORMATION WHETHER ORAL OR IN WRITING OBTAINED BY YOU FROM TOPCOAT SHALL CREATE ANY WARRANTY ON BEHALF OF TOPCOAT IN THIS REGARD. SOME ASPECTS OF THIS SECTION MAY NOT APPLY IN SOME JURISDICTIONS IF PROHIBITED BY APPLICABLE LAW.
TO THE EXTENT APPLICABLE, NOTHING SET FORTH IN THIS SECTION AFFECTS YOUR STATUTORY RIGHTS AS A CONSUMER.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL OR EQUITABLE THEORY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, SHALL TOPCOAT OR ANY OF ITS AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, VENDORS OR SUPPLIERS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY NATURE ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SITE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF AN AUTHORIZED REPRESENTATIVE OF TOPCOAT HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. SUBJECT TO THE FOREGOING, IN NO EVENT WILL TOPCOAT BE LIABLE FOR ANY DAMAGES IN EXCESS OF ANY FEES PAID BY YOU IN CONNECTION WITH YOUR USE OF THE SITE DURING THE SIX MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
Nothing in the Agreement removes or limits our liability for fraud, fraudulent misrepresentation, death or personal injury caused by its gross negligence, and, if required by applicable law, negligence. Some aspects of this section may not apply in some jurisdictions if prohibited by applicable law.
The provisions of this Agreement are intended to be severable. If for any reason any provision of this Agreement shall be held invalid or unenforceable in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction.
This Agreement is governed by and shall be construed in accordance with the laws of the State of Mississippi the principal place of business of TopCoat®, without giving effect to any principles of conflicts of law. You agree to bring any claims against TopCoat® exclusively in the courts of Madison County in the State of Mississippi.
WHERE PERMITTED UNDER THE APPLICABLE LAW, YOU AND TOPCOAT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and TopCoat® agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.
If you have any questions concerning the Site or this Agreement, please contact us using the information below.
TopCoat Products, LLC
979 Worthington Avenue
Green Cove Springs, FL 32043
Phone: (877) 838-2672
SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply. Message frequency varies.
User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that TopCoat Products and its service providers will have no liability for failing to honor such requests. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of digital and physical products, services, and events. Messages may include checkout reminders.
Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us. message frequency will vary.
Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at email@example.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. Carriers are not liable for delayed or undelivered mobile messages. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. Carriers are not liable for delayed or undelivered mobile messages
Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
Age Restriction: You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge, LLC d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Green Cove Springs, Florida before one arbitrator.
The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which TopCoat Products, LLC’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.