TERMS AND CONDITIONS | Topprop Sports

TOPPROP TERMS AND CONDITIONS

These Terms & Conditions (“Terms”) shall govern any Order Form(s) entered into by and between TopProp Corporation, a Delaware corporation (“TopProp”), and the Customer identified on such Order Form.

ORDER FORM AND SCOPE OF AGREEMENT

The Parties have entered into an initial Order Form (the “Initial Order Form”) which may be amended from time-to-time (each such amendment, an “Amendment”, and together with the Initial Order Form, the “Order Form”; the Order Form together with these Terms, the “Agreement”). The Agreement sets forth the terms under which TopProp will provide its services to Customer, inclusive of any related Support, training and/or Implementation Services (collectively, the “Services”). Any details of the Customer’s specific requirements and the term of such agreement are outlined in the applicable Order Form(s).

2. SAAS SERVICES AND LIMITATIONS

a. Access to the Services. During the Term, Customer will receive a nonexclusive, non-assignable, royalty free, worldwide limited right to access and use the Services, subject to the terms of this Agreement and any other limitations agreed in the Order Form.

b. Ownership of the Service. TopProp shall retain all right, title and interest in the Service and the technology and software used to provide it, including any modifications or enhancements to the Service arising from Customer feedback. No rights are granted to Customer by TopProp except as expressly stated in this Agreement.

c. Limitations. Customer will not: (a) resell, sublicense, lease, time share or otherwise make the Services available to any party not authorized to use the Services under this Agreement or an applicable Order Form; (b) copy, modify or create derivative works based on the Services; (c) reverse engineer or decompile the Services (unless such right is granted by applicable law and then only to the minimum extent required by law); (d) use the Services for unlawful purposes, including to send or store infringing, obscene, threatening, or otherwise unlawful material; or (e) disrupt the integrity or performance of the Services.

3. CUSTOMER RESPONSIBILITIES

Customer shall be solely responsible for its own compliance with this Agreement. Customer agrees to promptly notify TopProp of any unauthorized access to the Service arising from a compromise or misuse of Customer’s access credentials.

4. ORDERS AND PAYMENT

a. Orders. Customer shall order Services pursuant to the Order Form(s). All services acquired by Customer shall be governed exclusively by this Agreement and the applicable Order Form(s). In the event of a conflict between the terms of any Order Form and this Agreement, the terms of the Order Form shall take precedence.

b. Invoicing and Payment. Fees for the Service will be identified in an Order Form. Fees are due and payable thirty (30) days from the date of the invoice. Fees are non-cancelable and non-refundable. Customer may not decrease the scope of its Service during the relevant Term. TopProp reserves the right to suspend the Service in the event Customer is more than thirty (30) days past due on any undisputed invoice and fails to cure the payment deficiency within ten (10) days of receiving written notice of the deficiency from TopProp. All fees are stated in United States Dollars, and must be paid by Customer to TopProp in United States Dollars.

c. Taxes. All fees are exclusive of taxes, levies, or duties, (“Taxes”), and unless Customer can provide a valid state sales/use/excise tax exemption certificate (or other reasonable evidence of exemption) to TopProp, Customer will be responsible for payment of all such Taxes excluding taxes based solely on TopProp income. TopProp may invoice Taxes in accordance with applicable law together on one invoice or a separate invoice. TopProp reserves the right to determine the Taxes for a transaction based on Customer’s “bill to” or “ship to” address, or other location information for Customer’s use of the Service. Customer will be responsible for any Taxes, penalties or interest arising from inaccurate or incomplete information provided by Customer. If Customer is required by any governmental authority to deduct any portion of the amount invoiced by TopProp, Customer shall increase payment by an amount necessary for the total payment to TopProp to be equal to the amount originally invoiced.

5. IMPLEMENTATION AND SUPPORT

a. Implementation Services. TopProp shall provide training, implementation or other professional services necessary to Customer in connection with implementing and conducting the Services at no additional cost to Customer.

b. Support. Standard Support and Maintenance is included in Customer’s Order Form. To the extent required by Customer, TopProp shall provide sufficient information and resources to Customer in conjunction with a support issue, inclusive of (a) bug fixes and code corrections to correct software malfunctions in order to bring such software into substantial conformity with the operating specifications, (b) all extensions, enhancements and other changes that TopProp, in its sole discretion, makes or adds to the software and which TopProp furnishes, without charge, to all other Customers, and (c) all other support necessary in order to help Customer locate and correct problems with the software.

c. Exemptions from Support. TopProp is not obligated to provide Support for issues attributable to causes beyond TopProp’s reasonable control or issues caused by third party software not licensed or provided by TopProp that Customer may be using in conjunction with the Service.

6. TERM AND TERMINATION

a. Term. This Agreement shall commence on the Effective Date and shall continue for so long as there is an Order Form in effect between the parties, subject to termination by either party in accordance with this Section 5.

b. Termination. If either party materially breaches the terms of this Agreement and the breach is not cured (or curable) within thirty (30) days after written notice of the breach, then the other party may terminate this Agreement and/or the applicable order form upon written notice to the breaching party. Either party also may terminate this Agreement upon written notice: (a) if the other party (i) terminates or suspends its business, (ii) becomes subject to any insolvency proceeding under federal or state statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (iv) has wound up or liquidated, voluntarily or otherwise.

c. Effect of Termination. (a) Upon termination of this Agreement or expiration of the Term, TopProp shall immediately cease providing the Services and all usage rights granted under this Agreement shall terminate; (b) if TopProp terminates this Agreement due to a breach by Customer, then Customer shall immediately pay to TopProp all amounts then due under this Agreement and to become due during the remaining term of this Agreement, but for such termination. If Customer terminates this Agreement due to a breach by TopProp, then TopProp shall immediately repay to Customer all pre-paid amounts for any unperformed Services scheduled to be delivered after the termination date; (c) upon termination of this Agreement, the Recipient shall return to the Discloser any Confidential Information or destroy such Confidential Information and provide written certification of such destruction, provided that the Recipient may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the parties.

7. CONFIDENTIAL INFORMATION

a. Confidentiality. “Confidential Information” means information and/or materials provided by one party (“Discloser”) to the other party (“Recipient”), which are identified as confidential at the time of disclosure or, under the circumstances of disclosure, a reasonable person would understand to be confidential. The following information shall be considered Confidential Information whether or not marked or identified as such: this Agreement, TopProp’s pricing, product roadmap or strategic marketing plans, and any non-public materials relating to the Service. Recipient may disclose Discloser’s Confidential Information only to Recipient’s Affiliates, employees, officers, directors, advisors or contractors who need to know such Confidential Information and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder.

b. Exclusions. “Confidential Information” does not include information that: (a) is independently developed by or for the Recipient without access or reference to, or use of, Confidential Information; (b) is lawfully received free of restriction from another source having the right to furnish such information; (c) is or becomes lawfully in the public domain other than through a breach of this Agreement; (d) was known by the Recipient prior to disclosure; or (e) is generally disclosed by the Discloser to third parties without a duty of confidentiality.

c. Duties Regarding Confidential Information. At all times during and after the term of this Agreement, Recipient shall (a) keep Discloser’s Confidential Information confidential and not disclose Discloser’s Confidential Information to a third party without the Discloser’s written consent or as expressly permitted in this Agreement and (b) not use the Confidential Information for purposes other than the performance of this Agreement. Where disclosure is required by law, such disclosure shall not constitute a breach of this Agreement provided Recipient gives Discloser reasonable advance notice to enable Discloser to seek appropriate protection of the Confidential Information.

d. Unauthorized Disclosures. The parties agree that Recipient’s unauthorized disclosures of Confidential Information may result in irreparable injury for which a remedy in money damages may be inadequate. The parties therefore agree the Discloser may be entitled to seek an injunction to prevent a breach or threatened breach of this Section without posting a bond. Any such injunction shall be additional to other remedies available to Discloser at law or in equity.

e. Feedback. To the extent Customer provides suggestions or other feedback specifically relating to the Service, Support, or Implementation Services, Customer grants to TopProp a royalty free, fully paid, sub-licensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, and otherwise exploit such feedback, including incorporating it into the Service, Support and/or Implementation Services.

8. WARRANTIES

a. General Representations and Warranties. Each party represents and warrants that it has the power and authority to enter into this Agreement. TopProp further represents and warrants that (a) it will use reasonable skill and care in providing Support and Implementation Services and (b) it has taken commercially reasonable measures to ensure the Service is free from, and will not transmit, any malicious or hidden mechanisms or code designed to damage or corrupt Customer’s data or network systems.

b. Disclaimer of Warranty. EXCEPT FOR THE EXCLUSIVE WARRANTIES SET FORTH IN THIS SECTION 8, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICES, IMPLEMENTATION SERVICES, DOCUMENTATION, AND SUPPORT ARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND TOPPROP MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, IMPLEMENTATION SERVICES, DOCUMENTATION OR SUPPORT. TOPPROP SPECIFICALLY AND EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. FURTHER, TOPPROP DOES NOT WARRANT THE SERVICE WILL BE ERROR-FREE OR THAT THE USE OF THE SERVICE WILL BE UNINTERRUPTED.

9. LIMITATIONS OF LIABILITY

NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE DATE THE CLAIM AROSE. The foregoing limitations shall not apply to the parties’ obligations (or any breach thereof) under Sections entitled “Indemnification”, or “Confidentiality”.

10. INDEMNIFICATION

a. Indemnification by TopProp. If a third party makes a claim against Customer that the Services infringes any patent, copyright or trademark, or misappropriates any trade secret, or that TopProp’s negligence or willful misconduct has caused bodily injury or death, TopProp shall defend Customer and its directors, officers and employees against the claim at TopProp’s expense and TopProp shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by TopProp, to the extent arising from the claim.

b. Indemnification by Customer. If a third party makes a claim against TopProp that the Customer infringes any patent, copyright or trademark, or misappropriates any trade secret, Customer shall defend TopProp and its directors, officers and employees against the claim at Customer’s expense and Customer shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the claim.

c. Conditions for Indemnification. A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim.

11. GENERAL PROVISIONS

a. Assignment. Neither party may assign this Agreement or any right under this Agreement, without the consent of the other party, which consent shall not be unreasonably withheld or delayed; provided however, that either party may assign this Agreement to an acquirer of all or substantially all of the business of such party to which this Agreement relates, whether by merger, asset sale or otherwise. This Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns.

b. Compliance with Applicable Laws. Each party will comply with all applicable laws, including without limitation, applicable export-control restrictions, data privacy laws, and anti-corruption laws.

c. Notices. Any notice, request, demand, waiver, consent, approval, or other communication which is required or permitted hereunder shall be in writing and shall be deemed given only if delivered by (a) certified or registered, return receipt requested U.S. mail; (b) overnight courier with recorded delivery information; (c) personal in-hand delivery; or (d) via electronic mail, in each instance as set forth on the Order Form or to such other address as the addressee shall have specified in a notice duly given to the sender as provided herein. Such notice, request, demand, waiver, consent, approval, or other communication shall be deemed to have been given as of the date so delivered, or deposited in the mail, or emailed, with confirmation of receipt.

d. Non-waiver. Any failure of either party to enforce performance by the other party of any of the provisions of this Agreement, or to exercise any rights or remedies under this Agreement, will not be construed as a waiver of such party's right to assert or rely upon such provision, right or remedy in that or any other instance. Neither party waives any rights or limits its remedies for actions taken outside the scope of this Agreement.

e. Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.

f. Severability. If any term of this Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this Agreement shall remain in full force.

g. Publicity. TopProp may include Customer’s name and logo in its customer lists and on its website. Upon signing, TopProp may issue a high-level press release announcing the relationship and the manner in which Customer will use the TopProp solution. TopProp shall coordinate its efforts with appropriate communications personnel in Customer’s organization to secure approval of the press release if necessary.

h. Independent Contractor. The parties have the status of independent contractors, and nothing in this Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in this Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel.

i. Dispute Resolution, This Agreement will be governed by the applicable law and jurisdiction of the State of Delaware. Each party irrevocably submits to the personal jurisdiction and venue of the applicable jurisdiction above. Neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement. The prevailing party in any dispute arising from this Agreement shall recover its reasonable attorneys’ fees and costs from the losing party, including any fees or costs arising from an appeal.

j. Entire Agreement; Execution. This Agreement, together with the applicable Order Form(s) and statements of work, constitutes the entire agreement between parties, and supersedes all prior or contemporaneous proposals, quotes, negotiations, discussions, or agreements, whether written or oral, between the parties regarding its subject matter. Revisions to this Agreement must be made by a separate amendment, signed by each party, and must be expressly drafted for that purpose and identify the specific sections that are being revised. Preprinted terms in Customer purchase orders or other customer-generated ordering documents, or terms referenced or linked within them, will have no effect on this Agreement and are hereby rejected, regardless of whether they are signed by TopProp and/or purport to take precedence over this Agreement. This Agreement may be executed in counterparts, which taken together shall form one binding legal instrument. The parties may use of electronic signatures in connection with the execution of this Agreement, and further agree that electronic signatures shall be legally binding with the same effect as manual signatures.

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