TOPS [ONE] End User License Agreement
TOPS SOFTWARE, LLC (“WE” or “US”) HAS ENTERED INTO A MASTER AGREEMENT WITH A LICENSEE PERMITTING YOU TO ACCESS AND USE OUR SERVICES, INCLUDING OUR SOFTWARE (“SERVICES”), PROVIDED THAT YOU OBTAIN A VALID USER NAME AND PASSWORD (“CREDENTIALS”) AND WHEN ACCESSING OUR SERVICES CLICK THE “ACCEPT BUTTON” AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT: (A) YOU ARE 18 YEARS OF AGE OR OLDER; AND (B) IF YOU ARE ACCESSING AND USING THE SERVICES ON BEHALF OF A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY (“ENTITY”), YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ENTITY AND TO BIND THE ENTITY TO THE TERMS OF THIS AGREEMENT. WE WILL NOT AND DO NOT GRANT YOU PERMISSION TO USE THE SERVICES AND YOU MUST NOT ACCESS THE SERVICES.
- Permission to use the Services. We grant you a personal, nonexclusive, nontransferable, non-assignable, license within the United States to access and use our Services with your Credentials.
- Restrictions. You shall not: (a) attempt to copy, reverse engineer, modify, translate, adapt, or otherwise create derivative works or improvements of the Services or any part thereof; (b) create any Internet “links” to our website or the Services; (c) remove or cancel from view any copyright, trademark, confidentiality or other proprietary notice, mark or legend appearing on the Services or the materials within the Service; (d) use the Services to send spam or unsolicited messages, send or store infringing, obscene, threatening, libelous, or otherwise tortuous material, including material harmful to children or material in violation of third party privacy rights; (e) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (f) interfere with or disrupt the integrity or performance of our website, Services, or the data contained therein; or (g) attempt to gain unauthorized access to the Services, or its related systems or networks.
- Intellectual Property Rights. You acknowledge that the Services are provided under license, and not sold, to you. You do not acquire any ownership interest in the Services under this Agreement, or any other rights to the Services other than to use the Services in accordance with the license granted under this Agreement, subject to all terms, conditions, and restrictions. We reserve and retain our entire right, title, and interest in and to the Services and all intellectual property rights arising out of or relating to the Services, subject to the license expressly granted to you in this Agreement.
- Compliance. IT IS YOUR SOLE AND EXCLUSIVE RESPONSIBILITY TO COMPLY WITH ALL APPLICABLE LAWS, ORDINANCES, RULES, REGULATIONS AND ASSOCIATION DOCUMENTS, INCLUDING BYLAWS AND ARTICLES. OUR SERVICES AND SOFTWARE ARE NOT A SUBSTITUTE FOR SUCH COMPLIANCE.
- Collection of Information. We may collect and store your information as permitted under the Master Agreement and our Privacy Statement found at topsoft.com/privacy.
- Termination of License. This license shall terminate upon: (a) the termination of the Master Agreement; (b) your violation of Sections 1 or 2 of this Agreement; or (c) in our sole and exclusive discretion. Upon termination, your Credentials will be disabled prohibiting you from any further access to or use of the Services.
- Disclaimer. THE SERVICES, INCLUDING THE SOFTWARE ARE PROVIDED TO YOU "AS IS" WITHOUT A WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE, ON OUR OWN BEHALF AND ON BEHALF OF OUR LICENSEE EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, WE PROVIDE NO WARRANTY AND MAKE NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
- Third Party Materials. The Services may include or TOPS may offer software, content, data, payment engine, or other materials, including related documentation, that are owned by persons other than by TOPS (“Third Party Materials”). TOPS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF ALL THIRD PARTY MATERIALS. TOP MAKES NO REPRESENTATIONS REGARDING THE THIRD PARTY MATERIALS AND SUCH MATERIALS ARE OFFERED “AS IS” AND TO BE USED AT YOUR OWN RISK.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
- IN NO EVENT WILL WE, OUR AFFILIATES, OR LICENSEES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SERVICES; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- IN NO EVENT WILL OUR AND OUR AFFILIATES' AND LICENSEES’ COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED $50.00.
- THE LIMITATIONS SET FORTH IN SECTION SHALL APPLY EVEN IF THE YOUR REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
- Except for legal action seeking only equitable remedies and no money damages (including attorneys’ fees), any dispute, controversy or claim arising out of, or relating to or in connection with this contract, including the breach, termination or validity thereof, shall be finally resolved by arbitration between the parties before the American Arbitration Association (www.adr.org) using a single arbitrator and pursuant to the Expedited Commercial Rules of the American Arbitration Association with the final hearing to occur in Clearwater, Florida. The parties agree to arbitrate solely on an individual basis, and that this Agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of representative or class proceeding. A Florida court located in Clearwater, Florida or the United States District Court, Middle District of Florida, Tampa Division shall have exclusive jurisdiction and be the exclusive venue to: (a) determine any claims should the claimant opt out of this arbitration agreement within thirty (30) days from the claimants first use of the Services; (b) determine any legal action seeking only equitable remedies and no money damages (including attorneys’ fees); or (c) the validity and enforceability of the arbitration provisions and class action waiver within this Agreement. Judgment on any arbitration award may be entered in any court of competent jurisdiction.
- This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. You are provided the Services pursuant to the Master Agreement between us and Licensee. You acknowledge that you have no rights under the Master Agreement including no right to enforce any of its terms.
- This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.