TopOPPS Terms of Service Agreement
Terms and Conditions
Customer and TopOPPS, Inc. hereby agree as follows:
1.1 These Terms and Conditions shall apply to Customer’s use of TopOPPS’s subscription services (including without limitation any and all content or communications made available to Customers via the subscription), (“Service” or “Services”) as identified with specificity in one or more ordering documents signed by the parties, or electronically accepted by Customer (“Order” or “Orders”). These Terms and Conditions and all Orders (collectively referred to as the “Agreement”) represent the parties’ entire understanding regarding the Services and in the event of any conflict, shall control over any different or additional terms of any purchase order or other non-TopOPPS ordering document, which are hereby explicitly rejected. All capitalized terms not defined herein shall have the meanings attributed in the Order.
Right to Use the Services.
2.1 During the Subscription Term set forth in an Order. TopOPPS grants to Customer a nontransferable, nonexclusive, worldwide right to permit those individuals authorized by Customer or on Customer’s behalf, and who are Customer’s employees, agents or contractors (“Users”), to access and use the Services subject to the terms of the Agreement.
2.2 Each Order defines specific usage rights (“Usage Rights”), and Customer shall at all times ensure that its use does not exceed its Usage Rights.
2.3 Customer shall be solely responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, computers, computer operating system and web browser (collectively, “Equipment”). Customer shall ensure that Equipment complies with all configurations and specifications set forth in TopOPPS’s published documentation.
Usage Restrictions and Representations.
3.1 Customer shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services (“Software”); (ii) modify, translate, or create derivative works based on the Services or Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Software; (iii) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to TopOPPS; or (iv) remove any proprietary notices or labels from the Services or Software. Customer shall use the Services and Software only for its own internal business operations, and not for the operation of a service bureau or timesharing service.
3.2 Customer shall not knowingly or willfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with TopOPPS’s provision of the Services. Customer shall be responsible for maintaining the security of the Equipment and Customer’s account access passwords. Customer will make every reasonable effort to prevent unauthorized third parties from accessing the Services. Customer shall be liable for all acts and omissions of its Users, regardless of authorization.
3.3 Customer represents and warrants that Customer will use the Services only in compliance with TopOPPS’s Terms of Service, and all applicable (i) third party sites’ terms and conditions associated with its procurement and use of Customer Data; and (ii) laws and regulations, including those related to spamming, privacy, data protection, intellectual property, consumer and child protection, pornography, obscenity or defamation.
3.4 With the Service, Customer may direct TopOPPS to electronically retrieve information maintained online in third party sites, e.g. Salesforce, Heroku, etc. (“Outside Account Information”). TopOPPS makes no effort to review the Outside Account Information for any purpose, including but not limited to accuracy, legality or non-infringement of third party intellectual property. It is Customer’s responsibility to ensure that all Outside Account Information retrieved by TopOPPS is accurate, legal, and non-tinfringing, and that Customer has the right to cause TopOPPS to retrieve it, prior to using the Service to retrieve and display such information. Further, Customer acknowledges that TopOPPS is not responsible for the products and services offered by or on third-party sites. In the event TopOPPS receives notice that any of Customer’s Outside Account Information infringes upon the rights of a third party or that its use or display violates applicable law, TopOPPS reserves the right to remove such information without prior notice. TopOPPS cannot assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any user data, communications or personalization settings. For example, when displayed through the Service, Outside Account Information is only as fresh as the time shown, which reflects when the information is obtained from such sites. Such information may be more up-to-date when obtained directly from the relevant third party sites. Customer can refresh Outside Account Information through the Service, in the manner prescribed in the associated instructions.
3.5 TopOPPS may immediately suspend Customer’s password, account, and access to the Services if TopOPPS reasonably believes it is necessary to protect TopOPPS, TopOPPS Users, or third parties, including, without limitation if (i) Customer fails to make payment due within ten business days after TopOPPS has provided Customer with notice of such failure; or (ii) Customer violates Section 2.1, 3, or 9 of these Terms and Conditions. Any suspension by TopOPPS of the Services under the preceding sentence shall not relieve Customer of its payment obligations under the Agreement.
4.1 As between the parties, TopOPPS owns or has rights to all intellectual property rights in and to the Services and Software (including all derivatives or improvements thereof). All suggestions, enhancements requests, feedback, recommendations or other input provided by Customer or any other party relating to the Services or Software shall be owned by TopOPPS, and Customer hereby does and shall make all assignments and take all reasonable acts necessary to accomplish the foregoing. Any rights not expressly granted herein are reserved by TopOPPS.
4.2 Customer owns any data, information or material originated by Customer that Customer submits, collects or provides in the course of using the Services, including information regarding Customers’ information activated through use of the Services (“Customer Data”), including but not limited to, all electronic data or information submitted through Outside Account Information. TopOPPS has no ownership rights in or to Customer Data. Customer hereby grants TopOPPS a nonexclusive, royalty-free, revocable license to use Customer Data for use in connection with providing and improving the quality of the Service. Customer shall be solely responsible for the accuracy, quality, content and legality of Customer Data, the means by which Customer Data is acquired and the transfer of Customer Data outside of the TopOPPS Services. Customer Data shall be deemed to be Customer Confidential Information pursuant to Section 9 below.
Billing and Payment.
5.1 Customer shall pay all fees set forth in an Order. All fees are non-cancelable and nonrefundable, except as expressly specified in Section 7.2. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes based on TopOPPS’s income), even if such amounts are not listed on an Order. Customer shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the parties.
5.2 All amounts invoiced hereunder are due and payable as specified in the Order. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection.
5.3 If at any time TopOPPS determines that Customer is exceeding the Usage Rights, TopOPPS shall notify Customer and Customer shall bring its usage within the limits of such Usage Rights. If Customer fails to do so within 30 days of receipt of TopOPPS’s notice, TopOPPS reserves the right to charge and Customer agrees to pay TopOPPS’s then-current usage fees for such overage.
Term and Termination.
6.1 The Agreement shall commence as of the date set forth in the first Order and, unless earlier terminated as set forth below, shall remain in effect through the end of the Subscription Term in any current Order. All sections of the Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.
6.2 In the event of a material breach by either party, the non-breaching party shall have the right to terminate the applicable Order for cause if such breach has not been cured within 30 days of written notice from the non-breaching party specifying the breach in detail. If TopOPPS terminates an Order for Customer’s material breach, all fees set forth on such Order are immediately due and payable.
6.3 Upon any termination or expiration of an Order, Customer’s right to access and use the Services covered by that Order shall terminate.
Representations, Disclaimer of Warranties, Indemnities.
7.1 The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond TopOPPS’s reasonable control, but TopOPPS shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled unavailability of the Services.
7.2 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, TOPOPPS AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,TITLE, NON-INFRINGEMENT AND QUALITY. TOPOPPS AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TOPOPPS AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE, SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT NEITHER TOPOPPS NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. TOPOPPS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY TOPOPPS, THE SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” BASIS.
Limitation of Liability.
8.1 NEITHER PARTY SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND IT’S REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE LESSER OF $50,000 OR THE FEES PAID BY CUSTOMER IN THE PRECEEDING 12 MONTHS.
9.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Such information includes, without limitation, Customer Data, information related to Customer’s login identifiers and credentials for Accounts and the nature and performance of Customer’s marketing programs. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as expressly permitted in these Terms and Condition) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five years following the termination of the Agreement or any Confidential Information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party; or (e) is required by law.
10.1 Notwithstanding anything else in the Agreement or otherwise, TopOPPS may monitor Customer’s use of the Services and use Customer Data in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Services, and may make such information publicly available, provided that such information does not incorporate Customer Data and/or identify Customer’s Confidential Information. TopOPPS retains all intellectual property rights in such information. You hereby grant TopOPPS the right to use some data for marketing and other purposes provided we remove all reference to your company, your partners, your customers or any information that would indicate that this was your data.
11.1 TopOPPS may give notice applicable to TopOPPS’s general Services customer base by means of a general notice on the Services portal, and notices specific to Customer by electronic mail to Customer’s e-mail address on record in TopOPPS’s account information or by written communication sent by first class mail or pre-paid post to Customer’s address on record in TopOPPS’s account information. If Customer has a dispute with TopOPPS, wishes to provide a notice under the Agreement, or becomes subject to insolvency or other similar legal proceedings, Customer shall promptly send written notice to TopOPPS at 611 N. 10 St., 4th Floor, St. Louis, MO 63101, U.S.A.
12.1 Any action, Claim, or dispute related to the Agreement will be governed by Delaware law, excluding its conflicts of law provisions, and controlling U.S. federal law. The Uniform Computer Information Transactions Act will not apply to the Agreement. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. The failure of either party to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
12.2 The Agreement and all Order(s), represent the parties’ entire understanding relating to the Services, and supersede any prior or contemporaneous, conflicting or additional communications. The exchange of a fully executed Order via online submission or electronic signature shall be sufficient to bind the parties to the Terms and Conditions of the Agreement and such Order. The Agreement may be amended only by written agreement signed by the parties. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
12.3 No joint venture, partnership, employment, or agency relationship exists between TopOPPS and Customer as a result of the Agreement or use of the Services. Neither party may assign the Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, provided that such approval shall not be required in connection with a merger or acquisition of all or substantially all of TopOPPS. Any purported assignment in violation of this Section shall be void.