Master Terms of Service. This Master Terms of Service Agreement (“TOS”) is entered into between Topsy Labs, Inc. (“Topsy”, “we”) and the entity signing below (“You”). This TOS governs your use of the products/services (“Service”) provided to you by Topsy.
Services Provided. We will make the Service available in accordance with the terms of this TOS and the sales order. You may purchase additional Services by executing additional sales orders or, if available, via online as may be provided by Topsy. Your paid subscription to the Service entitles you to standard email-based support. Topsy will use commercially reasonable efforts to make the Services available 24×7 except for downtime due to maintenance operations.
Fees. You agree to pay the fees specified in the sales order, and unless otherwise specified in the sales order, all payment obligations are non-cancelable and non-refundable. Subscription fees are based on monthly periods and subscriptions added in the middle of a monthly period will be pro-rated for the monthly periods remaining in the subscription term.
Limitations on Use. Individual account subscriptions for the Service are for designated users only and cannot be shared or used by more than one user, but may be reassigned to new users replacing former users who no longer require ongoing use of the Service. You agree to use the Service only for purposes as permitted by these TOS, the relevant sales order and any applicable law, regulation, or generally accepted practice in the applicable jurisdiction. Topsy reserves the right to modify or impose any limitations on the use of the Service at any time in its sole discretion. You agree that you will not reproduce, copy, reverse engineer, duplicate, sell, resell, rent or trade the Service (or any part thereof including any data) for any purpose. You agree that any Tweets exported from the Service will be used solely for analytics purposes and will not be publicly displayed as part of a consumer application or website without prior written approval by Topsy or as may be otherwise authorized in a sales order. You understand and acknowledge that if you are using the Service as a part of a trial, it is made available on an “AS IS” and “AS AVAILABLE” basis for the purpose of providing Topsy with feedback on the quality and usability of the Service. In addition, Topsy is not obligated to provide any maintenance, technical or other support for the Service during the trial. Topsy reserves the right to modify, suspend or stop the Service (or any part thereof), either temporarily or permanently, at any time or from time to time during the trial. You agree to provide Topsy with feedback regarding the Service as may be reasonably requested by Topsy. You agree that all feedback you provide to Topsy in connection with the Service will be the sole property of Topsy, and that Topsy will be free to use any feedback you provide for any purpose. Upon termination of the trial, if you do not purchase a paid subscription to the Service, you must immediately cease to use the Service and delete any content or data that you may have accessed through the Service.
Proprietary Rights. You acknowledge and agree that Topsy and/or its licensors own all legal right, title and interest in and to the Service, including any and all intellectual property rights that exist therein, whether registered or not, and wherever in the world they may exist. You further agree that the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws.
Term and Termination. This TOS shall commence on the start date specified in the applicable sales order and shall continue for the term specified. Except as otherwise specified in the sales order, all subscriptions shall automatically renew for additional periods equal to the expiring subscription term unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. Either party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Links and Third Party Data. The Service includes data from third parties and hyperlinks to other web sites, resources or content. Topsy has no control over such third party sites and data and you acknowledge and agree that Topsy is not responsible or liable for any third-party content or the availability of data from such sites. Our ability to provide the Service depends the continued availability of data from third party data providers and if a third party data provider ceases to make data available on terms acceptable to us or it becomes commercially unreasonable for Topsy to maintain, we may cease providing such third party data. To the extent the termination of a third party data source materially impacts the functionality of the Service, you may terminate this TOS and receive a refund for any unamortized prepaid subscription fees as of the effective termination date.
Confidentiality. As used herein, the term “Confidential Information” includes any information or materials relating to Topsy’s business (present or contemplated) that you obtain from Topsy in connection with the Service or your use thereof. Confidential Information shall not include information, if any, which (a) was or becomes generally available to the public other than as a result of a disclosure (whether by act or omission) by you or your agent(s); (b) was available to you in documented form without an obligation of confidentiality prior to disclosure by Topsy hereunder; or (c) which becomes available to you without an obligation of confidentiality from a source other than Topsy having the legal right to disclose such information. You acknowledge that the disclosure of any of the Confidential Information to third parties will be prejudicial to Topsy. Accordingly, you agree not to disclose or permit access to all or any part of the Confidential Information without prior written consent from Topsy, which consent may be withheld by Topsy in its sole and absolute discretion. Additionally, you will use the Confidential Information only for the purposes of your use of the Service in accordance with these TOS, and not in any other manner or for any other reason.
Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TOPSY AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN PARTICULAR, TOPSY AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE SERVICE WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (III) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE SERVICE WILL BE ACCURATE OR RELIABLE; AND (IV) ANY DEFECTS OR ERRORS IN THE SERVICE PROVIDED TO YOU AS PART OF THE SERVICE WILL BE CORRECTED.
Limitation of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TOPSY AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR (I) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES , INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF TOPSY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE USE OR INABILITY TO USE THE SERVICE AND ANY OTHER MATTER RELATING TO THE SERVICE, OR (II) ANY AMOUNT IN EXCESS OF THE FEES PAID AND PAYABLE BY YOU TO TOPSY IN THE TWELVE MONTHS PRIOR TO ANY CLAIM.
Indemnity. You agree to defend, indemnify and hold Topsy, its affiliates, subsidiaries, directors, officers, employees, agents, partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by a third party, relating to or arising from: (a) your use of the Service; (b) any violation by you of these TOS; or (c) your violation of any rights of another. For the avoidance of doubt, this obligation shall survive the termination or expiration of these TOS and/or your use of the Service.
Governing Law. This TOS and all questions arising hereunder shall be governed by, and construed in accordance with, the laws and decisions of the State of California without giving effect to the principles thereof relating to conflicts of law. Each of the Parties hereto (a) irrevocably agrees that the federal and state courts in San Francisco County, California shall have sole and exclusive jurisdiction over any suit or other proceeding arising out of or based upon this Agreement, (b) submits to the venue and jurisdiction of such courts and (c) irrevocably consents to personal jurisdiction by such courts.
Publicity. You hereby agree that, subject to any reasonable trademark guidelines you provide, Topsy may use your company name and logo on Topsy’s website and marketing materials in order to identify you as a Topsy customer.
Assignment. Neither party may assign any of its rights or obligations hereunder without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this TOS in its entirety including terms contained in the sales orders without consent of the other party in connection with a merger, acquisition or sale of all or substantially all of its assets not involving a direct competitor of the other party.
Survival. Sections titled “Limitations on Use”, “Privacy”, “Proprietary Rights”, “Links and Third Party Data”, “Confidentiality”, “Disclaimer of Warranties”, “Limitation of Liability”, “Indemnity”, “Governing Law”, “Survival” and “General” shall survive any expiration or termination of this TOS.
General. The TOS constitutes the entire agreement between you and Topsy and govern your use of the Service. Topsy may provide you with notices regarding the Service, including changes to these TOS, by email, regular mail, or by postings on its website and/or the Service. If any part of these TOS is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The failure of Topsy to exercise or enforce any right or provision of these TOS shall not constitute a waiver of such right or provision. You agree that any claim or cause of action arising out of or related to these TOS or the use of the Service must be filed within one (1) year after the cause of action arose or be forever barred.