TOPS Agreement

These Terms and Conditions of this Master Agreement (this “Agreement”) cover all business transactions that TOPS Software LLC, a Maryland corporation (“TOPS”) has done or may do with all licensees of and persons using its Offerings (collectively, “Customer”). ONCE ACCEPTED; THIS AGREEMENT SHALL MODIFY AND SUPERSEDE ANY CONFLICTING TERMS GOVERNING ANY OF CUSTOMER’S PRIOR OFFERINGS (IF ANY).

  1. GENERAL.
    1. Definitions. The capitalized terms defined below and elsewhere in this Agreement shall have the respective meanings ascribed to them below.
      1. “Customer Content” means all information (including, without limitation, data, client information, homeowner information, condo owner information, homeowner or condo owner association information, digital images, designs and layouts, etc.), whether Confidential Information or not, that Customer supplies or makes available to TOPS or its subcontractors for use in any Offerings or as otherwise provided herein.
      2. “Equipment” means any hardware, devices, or software not manufactured, licensed, or owned by TOPS.
      3. “Offerings” mean all Services and Software.
      4. “Services” mean TOPS’s assistance or the use of a service that TOPS makes specifically available to Customer, including those described in Section 2. However, Services do not including the general use of TOPS’s publicly-accessible general-purpose websites).
      5. “Software” means the computer software, in object code form only, described in Section 4.
      6. “Transaction Content” means all information (including Customer Content) provided, used or generated in connection with or relating to transactions between Customer and TOPS or Customer and third parties (and, in each case, also vice versa) that are facilitated by any Offering.
      7. “Users” mean those particular employees, persons, and entities whom Customer is permitted to provide and has provided a unique User ID and password to use or access the Offerings.
    2. Agreement Structure.
      1. Attachments. Some Offerings have terms or details in addition to what is specified in this Agreement. TOPS may provide the additional terms or details in documents called “Attachments.” Some Attachments may be signed by Customer, others will be made available to Customer, electronically or otherwise. The following are examples of Attachments and the information they may contain: (i) descriptions of Offerings, their fees, their duration, additional terms and conditions of such Offerings, and names of the parties’ representatives; (ii) TOPS’s invoices including item, quantity, price, amount due, and additional terms and conditions; and (iii) the Order. The amounts owed for some Offerings are based on TOPS’s then-current fee times the number of units (e.g., users, communities, hours, etc.) provided. All questions and problems with any Offering shall be addressed to the other party’s representative for that Offering.
      2. Conflicting Terms. If there is a conflict among terms, those in this Agreement shall prevail over and supersede those (i) in an Attachment (with the sole exception of price, payment terms, and any other provisions contained under any heading entitled “SPECIAL STIPULATIONS”, in which case the reverse shall apply) and (ii) the terms applicable to general use of TOPS’s publicly-accessible general- purpose websites including, for example, the TOPS website’s Privacy Statement and Terms of Use. This Agreement is the sole and exclusive agreement between TOPS and Customer with respect to the Offerings and their business transactions whether past, present or in the future. Terms of any purchase orders, requests for proposals, and any other documents provided by Customer to TOPS shall be of no effect and are superseded by this Agreement.
      3. Customer’s Acceptance of Additional Terms. Attachments are incorporated in this Agreement. Customer accepts the additional terms in an Attachment (or any updates to Attachments) by doing any of the following: (i) signing or acknowledging its consent to the terms of such Attachment or (ii) using (or allowing others to use) or paying for the Offering that is the subject of such Attachment.
    3. Prices and Price Changes. TOPS may increase fees, except for the remainder of any period for which Customer has paid for such Offering in advance. Upon written notice to Customer, TOPS may increase fees for Offerings, but for Offerings Customer is already using, TOPS shall not increase the fees for the Offering more frequently than annually and not more than ten percent (10%) per year. Increases are effective upon the date specified in the increase notice.
    4. Invoicing, Payment, and Taxes. TOPS will invoice and Customer will pay for Offerings in advance of Customer access to or continued use of the Offerings. Unless otherwise stated, all invoices are due on the date of such invoice. Customer agrees to pay: (i) all invoices by electronic ACH withdrawal from its bank account and/or credit card charge acceptable to TOPS (plus a 2.5% additional credit card fee in the case of credit card payment only); and (ii) 1.5% per month interest on all invoices for which payment is not received within 30 days of its due date. At all times, Customer shall promptly provide, maintain, and update TOPS with Customer’s then-current bank and/or credit card account numbers and all other information necessary for TOPS to electronically withdraw funds from such bank account or charge such credit card account. In the event that either form of automatic payment is not honored or is declined, upon TOPS’s demand Customer will immediately pay all amounts owed by immediately-available, certified or bank funds. Customer agrees to pay all taxes resulting from any transaction under this Agreement, but not including taxes based on TOPS’s net income. TOPS has no obligation to provide and you have no right to use or license any Offerings for which amounts remain unpaid for more than 30 days.
    5. Additional Charges. Depending on the particular Offering or circumstances, additional charges may apply. For example, if TOPS incurs additional expenses as a result of Customer’s failure to have Customer Equipment ready or properly configured or if TOPS incurs travel, shipping, living expenses for out-of-town work, or other necessary resources, materials, and supplies in providing Offerings to Customer, Customer agrees to reimburse TOPS for the actual amount of such expenses.
    6. Limitations.
      1. Liability. Circumstances may arise where, because of TOPS’s default or other liability, Customer is entitled to recover damages from TOPS. IN SUCH INSTANCES, REGARDLESS OF THE BASIS ON WHICH CUSTOMER IS ENTITLED TO CLAIM DAMAGES, TOPS IS LIABLE ONLY FOR THE AMOUNT OF ANY ACTUAL LOSS OR DAMAGE, UP TO THE GREATER OF $500 OR THE AGGREGATE AMOUNT CUSTOMER ACTUALLY PAID TO TOPS FOR THE PARTICULAR OFFERING THAT IS THE SUBJECT OF THE CLAIM DURING THE THREE MONTHS PRECEDING THE DATE WHEN THE CLAIM FIRST OCCURRED, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, PRODUCTS LIABILITY, OR OTHERWISE. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 1.6.1 SHALL NOT APPLY TO (i) BODILY INJURY TO OR THE DEATH OF ANY PERSON, OR (ii) DAMAGE TO OR THE DESTRUCTION OF ANY TANGIBLE PERSONAL PROPERTY OCCURRING AS A RESULT OF TOPS’S NEGLIGENCE OR INTENTIONAL ACTS WHILE ON CUSTOMER’S PROPERTY. THIS LIMIT ALSO APPLIES TO ANY OF TOPS’S SUBCONTRACTORS AND EMPLOYEES; IT IS THE MAXIMUM FOR WHICH TOPS, AND ANY OF THEM, ARE COLLECTIVELY RESPONSIBLE.
      2. Items For Which TOPS Is Not Liable. Under no circumstances is TOPS liable to Customer or any third party for: (i) third-party claims against Customer for losses or damages (ii) loss of, or damage to, Customer’s records, Equipment, or data, or (iii) ANY LOSS OR DAMAGE, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOSS OF DATA, OR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER, REGARDLESS OF THE FORM OR CAUSE OF ACTION, WHETHER, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF OFFERINGS, DOCUMENTS, PROVISION OF OR FAILURE TO PROVIDE OFFERINGS, OR INFORMATION AVAILABLE FROM OFFERINGS, EVEN IF TOPS HAS BEEN ADVISED OF THE POSSIBILITY THEREOF AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY PROVIDED HEREIN.
      3. Statute of Limitations; Severability. Each party waives the right to bring any claim or action against the other more than one year after the date such claim or action accrues. If any portion of this Agreement is found to be unenforceable, it shall be severed from the rest and remainder of this Agreement.
    7. Mutual Responsibilities. Both parties agree that under this Agreement: (i) neither party will use the other’s trademark, trade name, service mark, or other designation in any promotion or publication without consent, provided that TOPS may announce that Customer is a customer of TOPS, (ii) each party is free to enter into similar agreements with others, (iii) except as otherwise expressly provided for herein, no licenses are granted hereby, and (iv) each party will allow the other notice of and a reasonable opportunity to comply (not more than 30 days or five days in the case of a failure to pay money) before it claims that the other has not met its obligations.
    8. Customer’s Responsibilities. Customer agrees: (i) not to assign this Agreement or its rights under it, delegate Customer’s obligations, or resell or provide for the benefit of anyone else any Offering and that any attempt to do otherwise is void; (ii) to acquire and use the Offerings only for Customer’s own business and by Customer and not to resell, lease, transfer, or provide or permit access to the Offerings to anyone else, other than Users; (iii) not to use the Offerings in violation of any law, regulation, or the rights of others and to only use the Offering as permitted by this Agreement; (iv) to install all Equipment and updates, as specified by TOPS; (v) to provide TOPS with full, free, lawful, and safe access to Customer Content and Customer’s facilities and Equipment so that TOPS may fulfill its rights and obligations; (vi) to be solely responsible for the content and accuracy of any Customer Content, whether or not used in any Offering; (vii) to be responsible for all activity occurring under Customer’s account or through use of Users’ IDs or passwords; and (viii) to be responsible for selecting and maintaining the security of all User IDs and passwords including anyone else’s use of User IDs and passwords.
    9. Customer’s Additional Rights. Customer may have additional rights under certain laws (such as consumer laws) that do not allow the exclusion of implied warranties or the exclusion or limitation of certain damages. If these laws apply, TOPS’s exclusions or limitations may not apply to Customer.
    10. Changes to the Terms; Notices. In order to maintain flexibility in Offerings, TOPS may change this Agreement by giving Customer notice and Customer agrees to these changes by continuing to use any Offering; however, such changes are not retroactive and do not apply to the current, pre-paid period of any Offerings. They apply as of the effective date TOPS specifies in the notice. Otherwise, for any change to be valid, both parties must sign or acknowledge it in writing. Any additional or different terms in any order or written communication from Customer to TOPS are void. Any notices (not including Attachments) referred to in this Agreement shall be made in writing and provided (either electronically or physically) with confirmed receipt, to the other party at their physical address set forth on the first page of this Agreement, or to the email address of its representative, or such other physical or email notice address(es) as one party shall notify the other.
    11. Termination. Either party may terminate this Agreement after providing the other party with at least 90-days advance written notice; provided that Customer pays the balance of all: (i) Offering fees for the remainder of the then-current initial or renewal period if Customer elects to terminate this Agreement pursuant to this sentence, plus (ii) unpaid fees for any other Offerings. Either party may terminate this Agreement if the other party breaches any of its material terms, provided the breaching party is given written notice and the time specified in Section 1.7(iv) to comply. This Agreement shall expire if TOPS is no longer providing and Customer is not using any Offerings. The provisions of Sections 1.6, 1.7, 1.11, 1.13, 5.4, 5.5 and 5.6 shall survive the termination or expiration of this Agreement. This Agreement binds each party’s successors and permitted assigns. Neither party shall be liable for any events beyond its reasonable control that interfere with or delay its performance hereunder.
    12. Geographic Scope. All Customer’s rights and all TOPS’s obligations with respect to Offerings, are valid only in the United States.
    13. Governing Law and Arbitration. THE LAWS OF THE STATE OF FLORIDA (EXCEPT FOR THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT, WHICH SHALL APPLY TO THIS AGREEMENT OR THE PARTIES), WITHOUT REGARD TO ITS CONFLICT OF LAWS PROVISIONS, GOVERN THIS AGREEMENT. The United States Convention on the International Sale of Goods and the United Nations Convention on the Formation of Contracts for the International Sales of Goods will not be applied to this Agreement. 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 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 claimant’s 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. .
  2. SERVICES. Subject to Customer’s payment of all fees and the other terms of this Agreement, TOPS will make the Services described in an Attachment available to Customer. The Services (and any estimates of their costs) are conditioned upon Customer’s Equipment, complying with the then-current TOPS System Recommendations available at http://customercare.topssoft.com/mysupport.aspx (collectively, “Recommendations”). The Services do not include (i) any Equipment, (ii) Customer’s internet connection to access the Services, or (iii) the cost of any third party fees that may be necessary for Customer to use or access the Services (such as internet connection charges, credit card processing fees, etc.).
  3. TOPS SUPPORT. TOPS will provide remote telephone or Internet support to Users to assist them with questions about using TOPS, subject to the TOPS Support Plan specified by Customer, the terms of which are set forth at http://customercare.topssoft.com/mysupport.aspx (which may be changed by TOPS from time to time) (collectively, “TOPS Support”) including, but not limited to, the times, telephone number(s), and other Internet resources where TOPS Support is provided during any calendar month, and Customer’s obligation to pay the additional time and expenses for on-site visits to Customer’s locations.
  4. SOFTWARE. Subject to Customer’s payment of all fees and the other terms of this Agreement, TOPS will grant to Customer certain rights in the Software described in an Attachment.
  5. OFFERINGS.
    1. Ownership. TOPS retains all rights, title, and interest in and to any Offering including, but not limited to, any information or materials derived from them or provided to Customer, and all Transaction Content. Customer shall return such materials upon the termination or expiration of this Agreement or TOPS’s earlier demand. Customer shall not make copies, disassemble, reverse engineer, derive computer code from, or create derivative works of such information or materials without TOPS’s permission.Customer retains all ownership of any Customer Content provided to TOPS and grants TOPS a non-exclusive, perpetual, irrevocable, royalty-free, worldwide, sublicensable right to use, copy, display, disclose and create derivative works from Customer Content to (i) convert it into forms usable by TOPS for making the Offerings available to Customer, (ii) incorporate it into Transaction Content, and (iii) to disclose or make available any of the foregoing to third parties for the longer of Customer’s use of any Offering or TOPS making any Offering available to Customer (excluding, for purposes of this clause 5.1(iii), owners’ Social Security numbers, and owners’ bank account or credit card information). Prior to providing any Customer Content to TOPS and for as long as TOPS, its employees, agents, and subcontractors have any right to use, copy, display, disclose, create derivative works from such Customer Content and own such Transaction Content as provided herein, Customer shall secure and maintain all rights in and all consents from the owners or providers of such content as necessary or desirable for TOPS to exercise such rights and ownership.
    2. Customer’s Acknowledgement and Responsibilities. Customer shall have its employees attend any training incidental to all Offerings and to have them review and be familiar with any Offerings and their documentation. Customer recognizes that TOPS does not guarantee that Offerings or Customer Content will operate without error or problem or that Offerings will be uninterrupted or error-free. TOPS accepts no responsibility for, and Customer agrees to indemnify and hold TOPS harmless from and against, claims that Customer Content contains errors or operates erroneously.
    3. Problems Not Serviced. TOPS does not service and has no responsibility for any Equipment or the obligation to assist in any of the following situations: (i) Customer’s failure to follow TOPS’s or its subcontractors’ instructions, (ii) problems with third parties’ equipment or systems, or (iii) the breach of Customer’s obligations under this Agreement.
    4. No Warranty. TOPS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND ALL OFFERINGS ARE PROVIDED “AS IS.” THE SERVICES MAY BE SUBJECT TO PERIODS OF INTERRUPTION, NON- ACCESSIBILITY OR UNAVAILABILITY.
    5. 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. TOPS MAKES NO REPRESENTATIONS REGARDING THE THIRD PARTY MATERIALS AND SUCH MATERIALS ARE OFFERED “AS IS” AND TO BE USED AT CUSTOMER’S, USERS’ AND END USERS’ OWN RISK.
    6. Indemnity. Customer agrees to indemnify and hold TOPS, its agents and subcontractors (each a “TOPS Indemnitee”) harmless from and against any costs, claims, damages, expenses, and liability arising from or relating to (i) the breach of Customer’s obligations under this Agreement, (ii) the violation of any law, regulation or ordinance by Customer, any User, or anyone using Customer’s Offerings (whether with or without permission or authority) and (iii) any third party’s claim that any TOPS Indemnitee‘s use of any Customer Content (including as embodied or reflected in Transaction Content) in accordance with this Agreement infringes or violates such third party’s rights.
      Rev. 4/2017

API Attachment

  1. Definitions. In addition to other capitalized terms defined elsewhere in this API Attachment (this “Attachment”), the following capitalized terms shall have the respective meanings noted below.
    1. “Application” means any software application, website, mobile application or other method or methodology that utilizes the TOPS API to exchange TOPS Data to and from Customer, Client and/or Bank (i) for Customer’s own internal business purposes and (ii) in conjunction with which no payment is charged or received by Customer, Client, Bank or any third party.
    2. “Bank” means the bank where Customer or a Client maintains: (i) the primary account from which it makes the majority of its payments and (ii) the primary account from which it receives the majority of its deposits.
    3. “Client” means any community, association, condominium association, homeowners association, common interest development, any similar association or organization, or a neighborhood of one or more apartments, businesses, condominiums or homes for which Customer is actively providing management services.
    4. “Documentation” means collectively any and all documentation and/or sample code regarding the TOPS APIs or TOPS’s trademarks, logos, or service marks provided or made available to Customer by TOPS hereunder.
    5. “Interfaces” mean the data collection and input routines that interface to the TOPS APIs, as well as data reporting routines developed by or for Customer in accordance with the Documentation and this Attachment.
    6. “IP Rights” mean any and all now known or hereafter known tangible and intangible patent, copyright, moral, trademark, or other intellectual property rights, whether arising by operation of law, contract, license, or otherwise, and all registrations, initial applications, renewals, extensions, continuations, or divisions or reissues thereof, appertaining to Proprietary Information, as of the Effective Date or thereafter in force (including any license or other rights in the foregoing).
    7. “Proprietary Information” means, collectively and without regard to form, (i) any third-party information that TOPS has agreed to treat as confidential, (ii) TOPS’s information regulated by applicable state or federal law concerning disclosure or use (the information described in this clause 1.6(ii) being “Trade Secrets”), and (iii) non-public information (other than trade secrets existing under applicable law) of value to TOPS (the information described in this clause 1.6(iii) being “Confidential Information”).
    8. “TOPS APIs” mean means application programming interface(s) that allows an Application to access TOPS Data.
    9. “TOPS Data” means any and all information relating to Customer accessible by or from TOPS Software.
    10. “TOPS Materials” mean the TOPS APIs, the Documentation, the TOPS Software, the TOPS trademarks, logos, and service marks, and the TOPS Systems.
    11. “TOPS Software” means TOPS’s proprietary accounting and management software products and services (as the same may be updated, upgraded, modified, replaced or substituted from time to time).
    12. “TOPS Systems” mean TOPS’s computer and network systems, and any computer or network systems used by TOPS to host TOPS APIs or TOPS Software, accessed by any Application.
  2. License Grant. Subject to the terms and conditions of this Attachment and Customer’s payment of all TOPS’s license fees therefor, TOPS shall grant to Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferable license: (i) copy and use the Documentation and the TOPS APIs solely as necessary to develop the Interfaces and to incorporate the Interfaces solely into an Application; (ii) exchange information with the TOPS Systems via an Application as reasonably necessary to test such Application; and (iii) use a tested Application solely for Customers’ own internal business purposes and for no other purpose. Customer may authorize its Bank to create and test
  3. Applications on Customer’s behalf, only for Customer’s sole internal business purposes.
    1. License Conditions. All licenses granted by TOPS in this Attachment are subject to the following conditions.
    2. Testing. Prior to its use, Customer shall ensure that the Application is sufficiently tested to ensure that it will not adversely affect TOPS Materials. Limits on Access to TOPS Data. Without the prior written consent of TOPS, Customer shall not resell, republish, enter into an agreement with, or allow a third party to use TOPS Data accessed via the TOPS API. Authorized third parties’ use of TOPS Data via the TOPS API will be controlled by a multi-key system. TOPS may issue Customer a unique access key (the “Customer Key”). At Customer’s request and subject to TOPS’s approval, TOPS may generate an access key for use by a TOPS-authorized third party to access TOPS Data (the “Third-Party Key”). Authorized third parties will only have access to a particular Customer’s TOPS Data for so long as the Customer Key and Third Party Key for such Customer are both enabled. The issuance and revocation of Third Party Keys is at TOPS’s sole discretion. Upon notification of a Customer’s request to revoke a Third Party Key, TOPS will disable that Third Party Key. Customer will not share its Customer Key with any third party.
    3. Source Code. Those portions of the Application containing Interfaces shall be distributed only in object code form. The Application shall not contain any “open source” code or be distributed in any form or manner that: (i) requires as a condition of use, modification and/or distribution of the Application that such licensed or otherwise distributed Interfaces distributed with the Application (a) be disclosed or distributed in source code form, (b) is subject to a right of anyone to prepare derivative works therefrom, or (c) be redistributable at no charge; or (ii) could otherwise impose any limitation, restriction, compulsory license, or condition on the right or ability of a third party to use or distribute the Application.
    4. No Reverse Engineering. Customer will not reverse engineer, decompile or disassemble any of the TOPS Materials.
    5. Support and Maintenance of the Application. Customer shall, at its sole expense, provide all maintenance and support for the Application.
    6. Acceptable Use. Customer shall comply with TOPS’s Privacy Policy set forth at TOPS’s website as updated from time to time (the “Privacy Policy”). Customer shall not and will not permit others to engage in activities prohibited by TOPS and will investigate any alleged instances thereof including, without limitation: (i) intentionally accessing data not intended or authorized for their use; (ii) logging into an account for which it is not authorized; (iii) attempting to probe, scan, or test the vulnerability of the TOPS Materials; (iv) attempting to breach security or authentication measures without proper authorization or otherwise interfere with the TOPS Materials; (v) taking any action in order to obtain the TOPS APIs or TOPS Software or any other TOPS service to which it is not authorized; (vi) using or accessing the TOPS Systems in any way which, in TOPS’s reasonable judgment, adversely affects the performance or function of the TOPS Systems or interferes with the ability of authorized persons or entities to access the TOPS Systems; (vii) interfering with the TOPS Materials by submitting a virus, overloading, “flooding”, “spamming”, “mailbombing” or “crashing” the TOPS Materials; (viii) associate, input or upload to the TOPS Systems any virus, Trojan horse, worm, time bomb or other computer programming routines that (A) are intended to damage, interfere with, intercept or expropriate the TOPS Systems or functionality of such TOPS Systems or (B) infringe the intellectual property rights of another; (ix) forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting; or (x) using the TOPS Materials to create, transmit, distribute, or store material that (A) violates the IP Rights or privacy, publicity, or other rights of third parties, (B) impairs the privacy of communications of any person, (C) is illicit, immoral or otherwise objectionable, or (D) assists or permits any persons in engaging in any of the activities described above.
    7. Restriction on Access. Notwithstanding anything to the contrary herein, TOPS may prohibit access to (including but not limited to, by suspending Customer’s rights to access) any part of the TOPS Systems or the TOPS APIs as necessary, in TOPS’s sole discretion, including, without limitation, (i) to prevent access to any part of TOPS Systems or the TOPS APIs that is not in compliance with the terms and conditions of this Attachment, (ii) to correct a material error in the TOPS Systems or the TOPS APIs, or (iii) to comply with a law, regulation or rule or any ruling of a court or other body of competent jurisdiction.
    8. TOPS Notices. Customer shall include in every copy of the Application a prominent reproduction of TOPS’s copyright and proprietary notices in a form and format specified by TOPS.
  4. TOPS-Required Changes. TOPS may terminate, provide error corrections, modifications, updates, enhancements or revisions (“Updates”) to, alter, modify or supplement any or all of the TOPS Materials, including any services or systems associated with such materials, at any time. Customer shall make commercially reasonable efforts to ensure that all Applications comply with any changes to the TOPS Materials, including any Updates, by the effective date of such changes as specified in a notice from TOPS.
  5. Testing and Production Environments. While an Application, or any new version of an Application, incorporating an Interface is under development, such Application or new version of an Application, as applicable, will exclusively access and use the testing environment designated in the Documentation to reach the TOPS Systems. Customer will ensure that all commercially available Applications exclusively access and use the production environment designated in the Documentation to reach the TOPS Systems and cease all access and use of the testing environment designated in the Documentation.TOPS may at any time require Customer to submit to TOPS for review and approval any Application. By submitting an Application to TOPS, Customer grants TOPS and its affiliates the right to use the Application for purposes of testing and evaluating such Application’s compatibility and suitability for use with TOPS Software and compliance with the terms of this Attachment. Customer agrees to answer questions and provide information and materials reasonably requested by TOPS regarding such submitted Application, the operation of Customer’s business, or the performance of any of Customer’s obligations under this Attachment. Customer understands and agrees that TOPS shall have no liability for any costs, expenses, and/or damages, including any development or marketing expense and potential lost profits or business opportunities that arise out of or result from TOPS’s review and approval or rejection of a submitted Application. If Customer makes any changes to an Application, including any patches, upgrades, enhancements, bug fixes, or any modification to the functionality, features, or user interface of such Application, TOPS may, in its sole discretion, require Customer to re-submit such Application for approval. The fact that TOPS has reviewed, tested, or approved any of Customer’s Applications does not relieve Customer of any of its obligations under this Attachment.
  6. Notification of Security Breach. Customer shall notify TOPS of any security breach of TOPS Data within Customer’s system, network or application as soon as reasonably practicable after such breach.
  7. Feedback. Customer agrees that TOPS may use Customer’s feedback, suggestions, or ideas (“Feedback”) in any way, including in future modifications of the TOPS Materials and other products or services, advertising or marketing materials, and that Customer has no right to object thereto or to receive any form of compensation derived therefrom. Customer grants TOPS a perpetual, worldwide, fully transferable, sublicensable, irrevocable, fully paid-up, royalty free license to use the Feedback Customer provides to TOPS in any way.
  8. Ownership Rights. Except as expressly provided herein, TOPS grants no rights to Customer in or to any of the TOPS Materials. TOPS owns and shall retain all right, title and interest in and to: (i) the TOPS Materials and all IP Rights of TOPS; and (ii) all improvements, updates, modifications, or enhancements made to the TOPS Materials, whether or not conceived or made in the course of or as a result of Feedback provided hereunder, and of all intellectual property rights therein (collectively, the “Improvements”) made at any time. Customer acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with TOPS’s ownership of or rights with respect to the TOPS Materials. Customer acknowledges that its contribution in the form of Feedback, services, expenditures, logs, or otherwise to the TOPS Materials shall not imply or grant it any right, title, or interest in the TOPS Materials and, to the extent that Customer may be deemed by operation of law to acquire any such right, title, or interest, Customer hereby assigns and transfers to TOPS all right, title, and interest in the Feedback, Improvements, and TOPS Materials it may have now or in the future. At TOPS’s reasonable request, Customer shall execute all documentation, instruments and assignments and take all necessary further action to perfect TOPS’s rights in the Feedback, Improvements, and TOPS Materials.
  9. Term and Termination.
    1. Term. This Attachment shall remain in effect until terminated by either Party upon not less than ten (10) days’ prior written notice to the other Party, which notice shall state the intention to terminate this Attachment.
    2. Termination. Upon the termination of this Attachment for any reason whatsoever:
      1. all rights and licenses granted by TOPS hereunder shall immediately cease and be terminated;
      2. Customer shall immediately cease and desist from all access to and use of the TOPS Materials, and, within five (5) business days after the effective date of termination, deliver to TOPS or its duly authorized representative, or certify in writing that it has destroyed, all materials provided to Customer by TOPS, including, without limitation, all copies of the TOPS Materials, TOPS Data and all other Proprietary Information , including all copies of such materials and information stored on electronic media; and
      3. Customer shall not be entitled to any compensation from TOPS as a result of the termination of this Attachment. Termination of this Attachment shall not relieve Customer of its surviving obligations hereunder.
  10. Survival. Sections 8, 9.2, 10, 11, and 12 shall survive the termination or expiration of this Attachment for any reason whatsoever.
  11. Confidentiality.
    1. Restrictions on Disclosure. During the term of this Addendum and for a period of five (5) years after its termination, except as otherwise mandated by law, Customer shall not use, disclose, or permit any person or entity access to any TOPS Data, information provided from the TOPS Systems or generated in connection with the use of the TOPS APIs, or Proprietary Information, except as specifically permitted hereunder. Without limitation of the foregoing, Customer agrees that this Attachment and its terms and conditions are Confidential Information. Customer acknowledges that if it breaches this Section 12, TOPS may have no adequate remedy at law available to it, may suffer irreparable harm, and therefore may be entitled, in addition to other available remedies, to an injunction restraining any actual, threatened or further breaches of Customer’s obligations under this Section 12, or any other appropriate equitable order, interim relief or decree available in the applicable territory.
    2. Use of Information. Customer shall not aggregate the TOPS Data or derive or develop information, services or products that use the TOPS Data other than as expressly permitted under this Attachment. Customer shall comply with all applicable laws governing the collection or use of personally identifiable information.
  12. Indemnity. Customer shall indemnify and defend TOPS, its successors and assigns, and their respective officers, directors, managers, employees, agents and other representatives from and against any and all claims, losses, judgments, liabilities, expenses (including attorneys’ fees), fines, penalties, and other damages (each of the foregoing being a “Claim”) that arise out of or relate to: (i) any Application; (ii) any actions or inactions of Customer, Client, Bank, their affiliates, or any third parties claiming by or through any of them; (iii) the use, handling, storage, lack of access, processing, loss or breach of any TOPS Data or any system containing or communicating any TOPS Data; or (iv) Customer’s breach of this Attachment.

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