Service Terms

Terms of Service

This Topia Terms of Service shall govern the Agreements between Client and Company. From time to time, Topia reviews and updates its Terms of Service and will advise Client via electronic mail of updates.

1. Definitions In addition to terms defined within this Terms of Service, the following capitalized terms shall have the meanings set forth below.
   1. “Agreements” means, collectively, the Order Form, this Terms of Service, the attached appendices, Statement(s) of Work, and any other documents identified in the Order Form and made a part hereof or incorporated by reference, including any written amendments.
   2. “Client Affiliates” means a legal entity which Client controls or is controlled by, or is under common control. “Control” means the legal entity holds more than fifty percent (50%) of the other legal entity’s shares or voting rights, or otherwise may direct the entity’s activities.
   3. “Client System” means Client’s information technology resources and systems as well as third-party hardware and software used to operate or interface with such System.
   4. “Commencement Date” means the “Commencement Date” indicated in the Order Form.
   5. “Deliverables” means work defined in a SOW that is separable from the Software including tangible reports generated by Client using the Software, which Client may retain following termination of the Agreements.
   6. “Documentation” means the operating manuals, including a description of the functions performed by the Software, user instructions, technical literature and all other related materials supplied to Client by Topia to facilitate the use of the Software, which may be revised, updated or supplemented by Topia from time to time.
   7. “Employee Records” means a unique record within the Software corresponding to an individual employee, assignee, or other worker whose mobility, assignment, travel, or related compliance data is tracked, processed, or managed through the Software. An Employee Record is created when such individual’s information is first entered or imported into the Software and remains active until such record is deactivated or deleted in accordance with Client’s configuration. For billing purposes, each active Employee Record during a billing period shall be counted, regardless of the level of activity, use, or updates associated with that Employee Record.
   8. “Error” means a reproducible failure of the Software to materially perform in accordance with the Documentation.
   9. “Implementation” means services described in a SOW pertaining to set-up, configuration, integration, onboarding, consulting, training, and/or other technical services.
   10. “Licensed Users” means individuals authorized to access and use the Software under the rights granted to Client and Client Affiliates under the Agreements.
   11. “Order Form” means the document executed by the Parties regarding Client’s access to the Software, which identifies applicable documents including this Topia Terms of Service, governing such access and associated services.
   12. “Services” means, collectively, the Software, Support & Maintenance Services set forth in Appendix A, Implementation and other services set forth in a SOW or amendment to the Agreements, as well as any other services provided to Client by Topia.
   13. “Software” means Topia’s hosted software platform, including Updates, accessed by Client as part of the Services.
   14. “SOW” means a Statement of Work executed by the Parties and governed by the Agreements.
   15. “Subscription Fee” means the license subscription fee paid by Client to access the Software (with Support & Maintenance Services).
   16. “Support & Maintenance Services” means Support & Maintenance Services set forth in Appendix A pertaining to Error reporting, response and resolution procedures, Software maintenance, and Uptime Assurance.
   17. “Updates” means new version release, functional enhancements, improvements, modifications, fixes, patches, error corrections, repairs, and/or replacements to the Software made generally available to and implemented by Topia on behalf of its clients. The content and timing of all Updates shall be in Topia’s sole discretion.
2. Subscription & Services
   1. Software Access. The Agreements set forth the subscription terms for Client’s access to the Software hosted by Topia.
   2. Single Sign-On Access. The Software shall be configured to allow Client and its Licensed Users to access it via the Single Sign-On or SSO made available by Topia.
   3. Implementation Associated with Software Access. Topia may provide Implementation associated with Client accessing the Software such as set-up, configuration, integration, onboarding, consulting, and/or training. A SOW shall set forth services to be provided by Topia for Implementation.
   4. Support & Maintenance Services. Topia will provide Support & Maintenance Services set forth in Appendix A during the Term.
   5. Increasing & Reducing Employee Records. Client may increase the number of Employee Records during the Term by requesting Topia to add more Employee Records and Topia will invoice Client an additional fee in the subsequent month the Employee Records have been added, which fee will be prorated based on the pricing in the Order Form. The number of Employee Records shall thereafter be increased for the remainder of the Term. Client may reduce the number of Employee Records in a Renewal Term by providing at least thirty (30) days’ notice prior to the first day of a Renewal Term, which will reduce the annual Subscription Fee for that Renewal Term and going-forward (unless Client subsequently increases the number of Employee Records). Topia performs routine audits to verify the number of Employee Records. If the audit determines the number of Employee Records exceed the number of Employee Records indicated in the table above, Topia will invoice Client on a prorated basis based on the aforementioned pricing plus twenty-five percent (25%).
      
3. Invoicing & Payment
   1. Invoicing & Payment. Topia will invoice Client the first annual Subscription Fee on the Commencement Date. For each subsequent annual Subscription Fee, Topia will invoice Client on the anniversary of the Commencement Date. Payment shall be made in US currency (USD) and is due within thirty (30) days of the invoice date. Topia will also invoice for reimbursement of out-of-pocket travel-related expenses, if any. Topia will invoice Client for fees for Implementation consistent with the invoicing terms set forth in the Order Form. If Client does not timely pay Topia the entire invoice amount, Client agrees to pay Topia one percent (1%) interest per month, compounded monthly, of the unpaid balance. Client shall reimburse Topia for all reasonable costs and expenses incurred, including attorneys’ fees, collecting unpaid invoice amounts.
   2. Taxes. Fees are exclusive of any applicable taxes, levies, duties, or similar governmental assessments of any nature including, but not limited to, value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (“Taxes”). Client shall be responsible for paying Taxes. If Topia has a legal obligation to pay or collect Taxes for which Client is responsible, the appropriate additional amount shall be invoiced to and paid by Client. For clarity, Topia is solely responsible for taxes assessable against it based on Topia’s income, property, employees, subcontractors, and agents.
   3. Annual Increases. After the first year the annual Subscription Fee will increase five percent (5%) each subsequent year of the Term.
4. Term & Termination
   1. Term. The Agreements shall begin on the Commencement Date and continue for the term specified in the Order Form (the “Initial Term”). Following the Initial Term, the Agreements shall renew for a successive one-year renewal term (“Renewal Term”), unless either Party gives a written termination notice to the other Party at least sixty (60) days prior to the first day of the Renewal Term. Termination shall not relieve Client of the obligation to pay fees accrued or payable to Topia prior to the termination date. “Term” means the duration of the Initial Term, plus the duration of each Renewal Term (if any).
   2. Termination For Cause. Either Party may terminate the Agreements, in whole or in part, by written notice to the other Party upon the occurrence of any of the following events: (i) the other Party’s material breach of any other term or provision of the Agreements which, if capable of cure, remains uncured for thirty (30) days following written notice by the terminating Party; (ii) the other Party becomes insolvent or makes any assignment for the benefit of its creditors; (iii) any proceeding is instituted by or against the other Party under any bankruptcy or similar laws for the relief of debtors and which is not dismissed within thirty (30) days of being instigated; or (iv) the appointment of any trustee or receiver for any of the other Party’s assets, except if such receiver requests the continuation of the Agreements. In addition, Topia may suspend or terminate the Agreements and/or any Services by providing written notice if Client has not tendered payment on an undisputed amount when due within fourteen (14) days after receiving written notice.
   3. Effect of Termination. Upon termination or expiration of the Agreements, Client shall immediately cease accessing the Software and promptly return to Topia or destroy Documentation, and any and all copies thereof, and certify the same to Topia in writing within ten (10) days of such termination or expiration. Any provision of the Agreements related to confidentiality or security of Confidential Information, ownership and proprietary rights, indemnification, limitation of liability, or which by its terms or nature provides for survival shall survive the termination of the Agreements.
5. Subscription License & Proprietary Rights
   1. License Grant. Subject to the terms and conditions in the Agreements and receipt of all applicable fees by Topia, Topia grants Client a non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Software and Documentation solely for Client’s business purposes during the Term. Access and use of the Software shall be web-enabled access only, and nothing in the Agreements shall entitle Client or any Licensed Users to the object or source code of the Software.
   2. License Restrictions. Client shall not: (i) make the Software available to any third-party via a services arrangement, service bureau, sale, resale, lease, sublicense or otherwise; (ii) alter, enhance or otherwise modify or create derivative works of or from the Software; (iii) disassemble, decompile, reverse engineer or otherwise attempt to derive the object or source code of the Software; (iv) remove or destroy any proprietary markings, confidential legends or any trademarks or trade names of Topia or its licensors placed upon or contained within the Software or Documentation; or (v) upload, post or transmit into or via the Software any viruses or unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane or offensive information of any kind.
   3. Use of Client Marks. To the extent Client provides Topia its service marks or trademarks (“Client Marks”) for the purpose of displaying such within Client’s Software instance, Topia is granted a limited right to do so and may not use Client Marks for any other purpose. Topia shall observe any reasonable policies communicated to Topia when handling Client Marks. Client represents, warrants, and covenants Topia’s handling of Client Marks shall not infringe or misappropriate any intellectual property, proprietary, or privacy rights of any person or entity.
   4. Client Property. Client owns all Client data including personal data pertaining to Client’s account, products, materials and intellectual property, whether now existing or hereafter created by Client, including what is used with or in the Software or Services (“Client Property”); provided Client Property shall not include the Software or Services or derivative works thereto. Client acknowledges Topia shall upload, display, distribute, copy, and store Client Property, and Topia shall only perform the foregoing solely to provide Services hereunder.
   5. Return of Client Information & Data. Upon Client’s written request, Topia shall provide Client with a copy of the information and data provided by or on behalf of Client and its Licensed Users for inclusion in, or access from, the Software in either a .csv file extract or such other commercially feasible format as the Parties mutually agree. Topia shall have no obligation to maintain or store Client information and data thirty (30) days after the Term. If the Agreements are terminated for Client’s breach, delivery of the information and data will require Client to remit payment three (3) business days in advance of the delivery based on an estimation of cost, with the balance to be paid in full at the time of delivery of the information and data.
   6. Client Provided Information & Data. Client acknowledges Services do not include—and Topia has no responsibility or liability with respect to—verifying information provided by Client and/or Licensed Users processed through the Software. Client agrees, at its own expense, to defend Topia and its officers, directors, employees, representatives, successors and assigns (“Topia Indemnitees”) from and against any third-party claims, suits, proceedings, or actions (collectively, “Claims”) based on an assertion Client Property infringes, misappropriates, or otherwise breaches or violates privacy or other rights of any third-party or applicable law, and will indemnify the Topia Indemnitees from any losses, damages, liabilities, judgments, fines, penalties, awards, costs or expenses (including reasonable legal fees) arising out of or resulting from such Claims. Client shall also indemnify the Topia Indemnitees for claims or actions brought by Client’s personnel on the bases Client was not authorized to provide Topia their information for processing through the Software.
   7. Software Ownership. All trademarks, service marks, patents, copyrights, trade secrets, report templates and other proprietary rights in the Software, Documentation, Services, any third-party software or any other contents within the Software (other than Client Marks and Client Property), and/or derivative works thereto and copies or portions of any of the foregoing (collectively the “Delivered Solution”) are and will remain the exclusive property of Topia or its licensors, whether or not specifically recognized or perfected under applicable law. If Client or its Licensed Users make any comments, suggestions, designs, features or other ideas for improving the Delivered Solution submitted by Client or its Licensed Users (“Submissions”), Topia shall own all rights to the Submissions and Topia shall be entitled to use such Submissions for any commercial or other purpose whatsoever without compensation to Client or anyone else. Client will not take any action that jeopardizes Topia’s or its licensor’s proprietary rights or acquire any right in the Delivered Solution, except the limited license rights specified herein. Topia or its licensor will own all rights in any copy, translation, modification, adaptation or derivation of the Delivered Solution, including any improvement or development thereof and/or any ideas first reduced to practice. If Client or any third-party engaged by Client is deemed to have any ownership interest or rights in the Delivered Solution, Client shall assign and/or cause such third-party to assign, and Client does hereby irrevocably assign, without royalty, all of such ownership interest and rights to Topia.
   8. Third-Party Services. Services provided by third parties (“Third-Party Services”) may be integrated with or accessed through the Software. Client acknowledges Topia has no responsibility for the services or content of any Third-Party Services and will have no liability for the acts or omissions of such Third-Party Services. Any activities related to Third-Party Services, and any terms associated with such activities, are solely between Client and the applicable Third-Party Services.
   9. Topia Privacy Policy & Terms of Use. Access to the Software is subject to the Topia Privacy Policy, which is accessible at https://www.topia.com/privacy-policy/, as may be updated from time to time.
6. Warranty
   1. Warranty. Topia warrants during the Term of the Agreements: (i) the Software will materially perform in accordance with the Documentation; (ii) Support & Maintenance Services shall be available and includes Error reporting, response and resolution procedures, Software maintenance, and Uptime Assurance; (iii) Implementation shall be performed in a competent, professional, and workmanlike manner in accordance with industry-best practice standards; (iv) it has sufficient right, title and interest in and to the Software to license such Software to Client free and clear of all restrictions, liens, and encumbrances that may conflict with or adversely affect Client’s rights under the Agreements; and (v) it will materially comply with all applicable laws, including data privacy laws, in performing its obligations hereunder.
   2. Warranty Exceptions. Topia shall have no warranty obligations with respect to any failures suffered by the Software to the extent caused by (i) interfacing third-party hardware or software or Client System with the Software or (ii) computer programs or code that are not provided by Topia (including, without limitation, any computer viruses and other malicious code). Topia shall be entitled to payment at its current rates for personnel time spent attempting to identify or correct failures reported by Client for which Topia has no obligation under this subsection. In addition, Topia shall have no warranty obligations if Client fails to use the Software in accordance with the Documentation, modifies or alters the Software in any way, or is in arrears with respect to its payment obligations.
   3. Warranty Remedy. Topia’s sole liability and Client’s sole remedy with respect to the foregoing warranties shall be for Topia, at its sole option, to either (i) correct any Error (subject to the other Warranty terms herein) and/or provide a Service Credit as provided in Appendix A or (ii) terminate the Agreements and refund to Client a pro rata amount of the prepaid Subscription Fee paid to Topia.
   4. Warranty Exclusions. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, TOPIA MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) OR STATUTORY, WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, AND SERVICES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, TOPIA HEREBY DISCLAIMS ANY WARRANTY THAT THE SOFTWARE, DOCUMENTATION, AND SERVICES PROVIDED HEREUNDER WILL MEET CLIENT’S REQUIREMENTS OR THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED.
7. Confidentiality
   1. Confidential Information. “Confidential Information” is (a) any non-public or proprietary information, including any business or technical information of Client or Topia as well as any sensitive information relating to either Party’s products, services, finances, product pricing, marketing plans, business opportunities, trade secrets or personnel, including personally identifiable information or PII; (b) any information of Client or Topia that is specifically designated by the disclosing Party as confidential or proprietary; (c) any information that is known to the receiving Party, or should be known to a reasonable person given the facts and circumstances of the disclosure as being treated as confidential or proprietary by the disclosing Party; and (d) the terms and conditions of the Agreements; provided, however, Confidential Information excludes information that: (i) is in or enters the public domain without breach of the Agreements; (ii) the receiving Party was demonstrably in possession of prior to first receiving it from the disclosing Party; (iii) the receiving Party can demonstrate was developed independently and without use of or reference to the disclosing Party’s Confidential Information; or (iv) the receiving Party receives from a third-party without restriction on disclosure and without breach of a nondisclosure obligation.
   2. Confidential Designation. Topia hereby designates the Software, Documentation and Services as Confidential Information. In addition, trade secret information of a Party shall also be designated as Confidential Information for as long as such Information remains a trade secret.
   3. Maintaining Confidentiality. Except as expressly permitted under the Agreements and for the duration of the Agreements and a period of two (2) years from the termination or expiration of the Agreements, the recipient of Confidential Information shall, and shall cause its personnel to, treat Confidential Information received as confidential and secret, and not use, disclose or otherwise make available the Confidential Information or any portion thereof to others. Each Party shall exercise no less than reasonable care with respect to the handling and protection of Confidential Information by limiting the use and access of Confidential Information to only those who need access, and such access directly pertains to a business purpose contemplated under the Agreements. Either Party may disclose the terms of the Agreements (1) in confidence, to a Party’s accountants, legal counsel, tax advisors, and other financial and legal advisors, or (2) with obligations of confidentiality comparable to those contained herein, to another entity or person or their legal or financial advisors in connection with a proposed change in control, corporate reorganization, consolidation, merger, acquisition, or sale or transfer of all or substantially all of the assets of such Party.
   4. Required Disclosure. Notwithstanding the foregoing, the receiving Party may disclose Confidential Information of the disclosing Party pursuant to a valid order or requirement of a court, provided the receiving Party first gives reasonable written notice to the disclosing Party in order to timely contest such order or requirement. Any such disclosure by the receiving Party of the Confidential Information of the disclosing Party shall, in no way, be deemed to change, affect or diminish the confidential and proprietary status of such Confidential Information.
   5. Return or Destruction of Confidential Information. Upon written request at any time, Confidential Information will be returned to the disclosing Party by the receiving Party or purged by the receiving Party. And if requested by the disclosing Party in writing, an authorized representative of the receiving Party shall certify all such Confidential Information has been returned or purged, as applicable. Notwithstanding, the receiving Party may retain (i) one (1) copy of Confidential Information for archival purposes or to defend its work product, (ii) Confidential Information the receiving Party is required to retain pursuant to any applicable law, (iii) copies of executed contracts or other materials customarily held by the receiving Party as archival material, and (iv) any Confidential Information stored by the receiving Party in such a way it would be commercially impracticable to purge. With respect to Confidential Information retained pursuant to the foregoing, the receiving Party’s obligations shall survive the termination of the Agreements until such Confidential Information is purged.
8. Security Protocols
   1. Security Safeguards. Topia shall maintain technical, organizational, and physical safeguards to protect Client Confidential Information processed through the Software from unauthorized or accidental disclosure, access, acquisition, destruction, alteration, misuse, loss, or damage in a manner that meets or exceeds applicable laws and globally recognized industry practices. Topia shall also require that such safeguards, including the manner in which Client Confidential Information is accessed, received, used, stored, transmitted, processed, and disclosed, comply with applicable federal and state privacy and data protection laws, as well as applicable regulations and directives. The safeguards shall include: (1) limiting access of Client Confidential Information to individuals that have a need to know and demonstrable basis for such access in order to provide Services; (2) securing business facilities, data centers, servers, backup systems, and computing equipment including, but not limited to, mobile devices and other equipment with information storage capability; (3) implementing network, application, database, and platform security, including firewall protection, antivirus protection, and security patch management; (4) securing information transmission, storage, and disposal; (5) implementing authentication and access controls within media, applications, operating systems, and equipment, including logging of access to or use or disclosure of Client Confidential Information and intrusion detection; (6) using protocols to encrypt Client Confidential Information in transit and at rest, or as otherwise required by applicable law or regulation, and safeguard the security and confidentiality of all encryption keys; (7) implementing ongoing personnel training and awareness regarding industry-best security safeguard practices; and (8) conducting risk assessments, penetration testing, and vulnerability scans and promptly implementing, at Topia’s sole cost and expense, an action plan to rectify or remediate any issues reported as a result of the testing. In furtherance of the foregoing, Topia will obtain, on an annual basis and at its expense, Service Organization Controls (SOC) 2 Type II certification by engaging an independent third-party auditor to test its information technology systems and methodologies against current SOC and, upon written request, will provide Client a copy of this annual certification.
   2. Subprocessors. The Software will process Client Confidential Information as necessary to perform the Services, and as further instructed by Client in using the Services. Client acknowledges Topia uses third-party subprocessors (“Subprocessors”) to process Client Confidential Information. Topia has undertaken due diligence measures to ensure Subprocessors have the capability to safeguard Client Confidential Information consistent with the confidentiality provisions herein. Topia shall also ensure its Subprocessors properly perform its processing obligations and, to the extent a Subprocessor fails to properly perform its obligations or breaches the terms of the Agreements, Topia shall be responsible and liable to Client.
   3. International Transfers of Client Confidential Information. If Client Confidential Information is transferred, stored, or processed internationally, Topia shall use generally accepted industry data transfer protocols and encryption methodologies in compliance with applicable laws.
   4. Security Breach Procedures. In the event of a security breach of the Software that compromises Client Confidential Information, Topia will provide notice to Client of a confirmed breach as soon as practicable, but in no event more than seventy-two (72) hours upon becoming aware of the same. The notice will state the nature of the breach and what, if any, Client Confidential Information was compromised. Topia shall promptly provide any additional information to Client as Topia gains additional information regarding the breach, including relevant investigative or forensic reports. Unless otherwise required by law or a governmental entity, Topia shall not notify or otherwise publicly disclose the breach unless such notice or public disclosure is approved by Client.
   5. Client Security Responsibilities. Client is responsible for ensuring (1) the Software is only accessed by Licensed Users authorized by Client and (2) its information transmitted to the Software, including Confidential Information, is done in a manner consistent with generally accepted industry practices. Client shall report suspicious activity, suspected security concerns, or unauthorized use of passwords or access to the Software to the Topia Support & Maintenance Services team at support@topia.com.
9. Insurance
   1. Topia shall carry and keep in full force and effect during the Term of the Agreements the following minimum insurance coverages: (i) commercial general liability insurance: each occurrence—one million dollars ($1,000,000), damage to rented premises—one million dollars ($1,000,000), personal and advertising injury—one million dollars ($1,000,000), general aggregate—two million dollars ($2,000,000), and products and completed operations subject to the general aggregate limit—two million dollars ($2,000,000); (ii) automobile liability insurance for hired and non-owned vehicles, combined single limit—one million dollars ($1,000,000); (iii) statutory workers compensation and employer’s liability insurance—one million dollars ($1,000,000); (iv) umbrella liability insurance over (i), (ii), and (iii): each occurrence and aggregate—five million dollars ($5,000,000); (v) professional and cyber liability insurance, combined single limit—per claim and aggregate five million dollars ($5,000,000); and (vi) employee crime insurance—each occurrence and aggregate one million dollars ($1,000,000). Upon written request, Topia shall furnish Client a certificate from its insurance carrier or carriers showing its compliance with the foregoing insurance requirements.
10. Infringement Indemnity
    1. Infringement Indemnity. Topia agrees, at its own expense, to defend or, at its option, to settle, any claim or action brought against Client to the extent it is based on a claim Client’s use of the Software or Services within the scope of the Agreements infringes or violates any U.S. patent or copyright, and will indemnify Client from any losses, damages, or expenses resulting from settlement or judicial award from such claim; provided, however, this Section does not cover, and Topia shall have no obligation hereunder for, infringement claims arising from: (i) Client Property processed through the Software; (ii) Client’s failure to use the Software in accordance with the Agreements or Documentation; (iii) use of the Software in conjunction with third-party software or equipment or Client System where such combination is the cause for infringement; (iv) modification to the Software made in accordance with Client’s instructions provided the infringement would not have occurred but for such modification; (v) modification of the Software without Topia’s approval provided the infringement would not have occurred but for such modification; (vi) use of the Software or Services after a non-infringing, replacement version has been made available without additional charges by Topia to Client; or (vii) if Client has not adhered to its obligations under the Agreements provided the non-adherence caused or contributed to the claim. This Section states TOPIA’S entire liability and Client’s sole remedy for infringement claims.
    2. Opportunity to Rectify. If a claim or suit under this Section for which Topia is required to indemnify Client, Topia may be required to suspend Client’s and its Licensed Users’ access to the Software and Client shall comply with such requirement, and Topia will, at its sole option, either (i) procure for Client the right to use the Software, Services, or affected part thereof; (ii) replace the Software, Services, or affected part thereof with other non-infringing products or modify the Software, Services or affected part thereof to make such not infringing and functionally equivalent; or (iii) if the remedies set forth in clauses (i) and (ii) are not commercially feasible, as determined by Topia, terminate the Agreements and the rights granted hereunder and refund to Client a pro rata amount of any prepaid Subscription Fee. Topia will not be liable for any costs or expenses incurred without its prior written authorization.
    3. Indemnification Procedure. As conditions to Topia’s obligations in this Section: (i) Client shall provide Topia with prompt notice of the claim or suit giving rise to such obligation; provided, however, any failure or delay in giving such notice shall only relieve Topia of its obligations under this Section if Topia reasonably demonstrates its defense or settlement of the claim or suit was adversely affected thereby; (ii) Topia shall have sole control of the defense and of all negotiations for settlement of such claim or suit; and (iii) upon Topia’s request, Client shall assist in the defense or settlement of any such claim or suit, provided Client shall be reimbursed for reasonable legal fees and expenses it incurs in connection with providing the assistance requested by Topia. Subject to clauses (ii) and (iii) above, Client may participate in the defense of any such claim or suit with its own counsel and its own expense.
11. Liability Exclusions & Limitation
    1. Liability Exclusions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE OR RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, ENHANCED, PUNITIVE, INDIRECT OR SIMILAR DAMAGES, INCLUDING DAMAGE TO REPUTATION OR ANY DAMAGES ON ACCOUNT OF BUSINESS INTERRUPTIONS, LOST PROFITS, LOST DATA, LOSS OF USE OF DATA, LOST OPPORTUNITY, THE INABILITY TO USE THE SOFTWARE OR SERVICES, OR ANY OTHER THEORY (INCLUDING NEGLIGENCE OR STRICT LIABILITY) WHETHER OR NOT PLACED ON NOTICE OF ANY SUCH ALLEGED DAMAGES AND REGARDLESS OF THE FORM OF ACTION IN WHICH SUCH DAMAGES MAY BE SOUGHT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE, OR SERVICES.
    2. Liability Limitation. NEITHER PARTY’S CUMULATIVE LIABILITY, IF ANY, HEREUNDER FOR DAMAGES RELATING TO THIS AGREEMENT, THE SOFTWARE, OR SERVICES, WHETHER CAUSED BY FAILURE TO DELIVER, NONPERFORMANCE, ERRORS, BREACH OF WARRANTY OR OTHERWISE, SHALL EXCEED THE FEES PAID BY CLIENT TO TOPIA FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH LIABILITY. THE LIMITATION IN THE PRECEDING SENTENCE AS TO TOPIA MAY BE INCREASED TO (BUT SHALL NOT EXCEED) ONE MILLION DOLLARS ($1,000,000) (USD) FOR DAMAGES ARISING FROM OR RELATING TO A CONFIDENTIALITY BREACH, INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATION, OR LOSSES ARISING FROM GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT. The existence of one or more claims will not enlarge this limitation.
12. Miscellaneous
    1. Currency. All sums and amounts payable or to be paid by Client to Topia shall be in United States currency (USD) unless otherwise stated in the Order Form.
    2. Notice. Any formal notice or other communication given pursuant to the Agreements shall be in writing and delivered by certified mail, overnight express delivery service (such as Federal Express), or by priority mail by a recognized express mail vendor to the attention of “Legal Department” and at the Party’s address set forth on the initial page. Either Party may designate a different address by notice to the other in accordance herewith. Notice will be deemed served when delivered or, if delivery is not accomplished by reason or some fault of the addressee, when tendered. Any notice to Topia shall also be sent electronically to legal@topia.com.
    3. Assignment. If a Party wishes to assign the Agreements to another entity, that Party must obtain the other’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, the Agreements may be assigned without obtaining prior written consent in the context of a change in control, corporate reorganization, consolidation, merger, acquisition, or sale or transfer of all or substantially all of the assets of the assigning Party, provided: (i) such assignee is not a direct competitor of the other Party; (ii) such assignment does not interfere with the performance of obligations under the Agreements; or (iii) such assignment does not change the scope of usage and the intent contemplated by the Parties under the Agreements. An assignment of the Agreements will be binding on the Parties and their successors and permitted assigns.
    4. Governing Law & Formal Dispute Resolution. The validity, interpretation, and enforceability of the Agreements shall be governed by the laws of the State of Delaware. The Parties agree should any dispute arise relating to the Agreements, they will each sponsor a representative with settlement authority, who will attempt in good faith to resolve the dispute within seven (7) days following receipt of written notice. If the Parties are unsuccessful and the dispute is monetary in nature, the dispute must be resolved through final and binding arbitration in Delaware before the American Arbitration Association under its Commercial Arbitration Rules with one arbitrator. Either Party may seek non-monetary, equitable relief such as an injunction or specific performance in any competent court, wherever located, to enforce the Agreements.
    5. Waiver of Jury Trial. To the fullest extent permissible under applicable law, each Party hereby knowingly and voluntarily waives any and all rights to a jury trial, to the fullest extent any such right will now or hereafter exist, in any proceeding, claim, counterclaim, or other action involving any dispute or matter arising under the Agreements.
    6. Waiver. The delay or failure of either Party to enforce any of its rights hereunder will not be deemed to constitute a waiver of its future enforcement of such rights or any other rights. No waiver of any provision of the Agreements will be binding upon the Parties, unless evidenced by a writing signed by an authorized representative from each Party.
    7. Relationship of the Parties. The Parties are independent contractors, and nothing in the Agreements will be deemed to place the Parties in the relationship of employer-employee, principal-agent, “borrowed servant,” partners, or joint venture. Neither Party will have any authority to bind or make commitments on behalf of the other Party for any purpose, nor will any such Party hold itself out as having such authority.
    8. Publicity. In consideration of granting Client a license to access the Software, Topia may publish Client’s name, logo, trade, and/or service marks in any Topia customer list, sales activity, advertising, marketing, or any other form or manner of publicity for the limited purpose of indicating Client accesses the Software hosted by Topia.
    9. Force Majeure. If by reason of a labor dispute, strike, lockout, pandemic, riot, war, earthquake, fire or other action of the elements, accidents, internet service provider or hosting facility failures or delays involving hardware, software or power systems, governmental restriction, appropriation, or other cause beyond the reasonable control of a Party (“Force Majeure Event”) and that Party is unable to perform in whole or in part its obligations in the Agreements, then the affected Party shall provide notice to the other Party as soon as practical and the Parties commit to use best efforts to work toward a mutually agreeable solution. Neither Party will be liable for any losses, injury, delay, or damages suffered or incurred by the other Party due to a Force Majeure Event.
    10. Entire Agreement, Amendment & Precedence. The Order Form, this Terms of Service, the Appendices, SOWs, and any other documents identified in the Order Form and made a part hereof or incorporated by reference, including any signed amendments, contain the complete and final understanding of the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications between the Parties, whether written or oral. The Agreements may not be modified, changed, or altered in any manner except in a written amendment executed by both Parties. In the event of a conflict between a term in the Agreements and a SOW, the term in the Agreements shall control unless it is expressly stated in a SOW a provision in the Agreements are superseded. And in the event of a conflict between a term in the Agreements and the Topia Privacy Policy or the Online Terms of Service, the term in the Agreements shall control. Moreover, nothing herein shall affect or terminate ongoing rights from non-disclosure agreements entered into by the Parties prior to the execution of the Agreements; provided, however, any Confidential Information exchanged between the Parties following the execution of the Agreements shall be governed solely by the confidentiality obligations set forth herein.
    11. Construction & Interpretation. The Agreements shall, in all cases, be construed simply, as a whole, and in accordance with its fair meaning and not strictly for or against any Party. The Parties acknowledge the Agreements have been negotiated between them at ‘arm’s length’ with the opportunity to independently review the Agreements with legal counsel and each Party has the requisite experience and sophistication to understand, interpret, and agree to the particular language of the provisions hereof. Accordingly, in the event of an ambiguity in or dispute regarding the interpretation of the Agreements, the Agreements shall not be interpreted or construed against the Party preparing it. The captions of sections and subsections are inserted solely for convenience and under no circumstances are they to be used to construe or interpret any particular provision.
    12. Severability. If any particular provision of the Agreements are found to be invalid or unenforceable, then such provision will be stricken and it shall not affect the validity or continuing effect of any other provision, and to the extent practical the invalid or unenforceable provision shall be reformed so it aligns with the Parties’ intent.
    13. Export Controls. The Software and associated services are subject to export controls under the U.S. Export Administration Regulations and other applicable laws.
    14. Execution. Any document pertaining to the Agreements, in particular the Order Form, that requires signature by the Parties may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument. A document signed and transmitted by .pdf or other electronic means (such as DocuSign) shall have the same binding effect as an original “wet-ink” signature.

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Appendix A: Support & Maintenance Services

1. Support & Maintenance Services. During the Term, Client may request Support & Maintenance Services by reporting Errors to Topia via electronic mail (support@topia.com), Monday through Friday from 8 am to 8 pm EST excluding these holidays recognized in the U.S.: New Year’s Day, MLK Day, President’s Day, Memorial Day, Juneteenth, Independence Day, Labor Day, Thanksgiving and the day after, and Christmas Day. Support & Maintenance Services include intake of inquiries regarding Software functionality/capabilities, incident reporting and resolution following the Support Procedures below, and intake of Software feature requests.
2. Support Procedures. Procedures for Support & Maintenance Services are as follows:

Topia will respond to Support & Maintenance Services requests based on the Severity Level assigned by Topia, which is set forth in Table 1. Topia will provide Client an initial response for each reported Error (indicating the support query has been received) within the timeframe set forth in Table 2 upon Topia being notified of the Error. Topia will assign Client an incident ticket number to be used for communications going-forward regarding the Error and provide the timeframe to rectify the Error after conducting an assessment. Client shall maintain current and accurate contact information for Client’s administrators to receive information and notifications. Client acknowledges its assistance by providing detailed descriptions, logs, ‘screen captures,’ and/or specific data references may be necessary to enable Topia to replicate and diagnose the incident.

Table 1 – Severity Level

Table 2 – Response Timeframe

The failure to resolve an Error does not constitute a material breach of the Agreements.

1. Exclusions. Topia does not provide Support & Maintenance Services to address failures suffered by the Software to the extent caused by (a) interfacing third-party hardware or software or Client System with the Software or (b) computer programs or code that are not provided by Topia (including, without limitation, any computer viruses and other malicious code). Support & Maintenance Services will not be provided to (x) accommodate Client customizations, modifications, or manipulation of data, (y) accommodate requests for new functionality/capabilities, reporting, additional training, troubleshooting/resolving issues with third-party hardware or software or Client System, Client specific scenario testing, or database backup and/or restoration, or (z) Client’s third-party vendors. Topia will determine, in its sole discretion, whether a failure or request is covered by Support & Maintenance Services. Upon request, Topia will attempt to resolve an issue not covered by Support & Maintenance Services at Topia’s current hourly rates.
2. Updates. Client will be notified in advance by electronic mail or phone call when Updates to the Software are performed outside regular business hours (“Scheduled Updates”) unless exigent circumstances warrant otherwise. Scheduled Updates will be performed each month in a three (3) hour window over a weekend. Client should anticipate periodic, unannounced outages during this timeframe. Scheduled Updates are excluded from Topia’s Uptime Assurance.
3. Software Availability / Service Level Agreement.
   1. Uptime Assurance. Topia will use commercially reasonable efforts to make the Software accessible to Client twenty-four (24) hours a day, seven (7) days a week with an average of 99.5% availability, except for time when the system is down during Scheduled Updates, Force Majeure Event or interruptions or failures caused by Client or Licensed Users, their equipment or networks. “Uptime Assurance” is calculated on a monthly basis as (i) the total minutes in the month minus the number of minutes during such month the Software was not accessible by Client or its Licensed Users divided by (ii) the total minutes in the month (excluding from the calculation of (i) and (ii) any time the Software was inaccessible during Scheduled Updates, Force Majeure Event, interruptions or failures caused by Client or Licensed Users, or suspension or termination of Services permitted under the Terms of Service). Uptime Assurance applies the second month following Software implementation and only to Client’s production instance, not test or development instances.
   2. Service Level Agreement. Notwithstanding any other provision in the Agreements or remedies which may otherwise be available, Client’s sole and exclusive remedy for a breach of Uptime Assurance and Topia’s sole and exclusive liability is Client shall be entitled to a refund for the month in which Topia failed to achieve the Uptime Assurance (“Service Credit”). The Service Credit shall equal two percent (2%) of the prorated monthly Subscription Fee for every 60-minute increment of downtime that exceeds Uptime Assurance.
   3. Service Credit. In order to receive a Service Credit, Client must notify Topia in writing it believes it is entitled to such credit within thirty (30) days of the end of the month in which the failure at issue occurred. Client agrees it is not entitled to the credit or any other remedy if such notice is not provided timely. Following Client’s notice in accordance with this Section, and Topia’s verification Client is entitled to a Service Credit (which verification Topia will confirm within thirty (30) days of Client’s notice), Topia shall provide a credit against future amounts due to Topia. Client shall not offset any amounts or payments under the Agreements, except for amounts credited pursuant to the terms of this Appendix.

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