Terms and Conditions
1.1 About Our Web Applications. TopNotepad, Inc ("TNP") provides web-based business application for small and medium sized companies through its Web site located at www.topnotepad.com (the "Web Application").
1.2 Terms and Conditions. This Agreement describes the terms and conditions of use of the Web Application by a subscriber who completes and signs the Subscription Form (a "Subscriber") and the users authorized by Subscriber, who shall be employees of Subscriber or its wholly owned subsidiaries (the "Authorized Users"). The Subscription Form sets forth (i) the number of Authorized Users, (ii) the term of the subscription to the Web Application (the "Term"), and (iii) the total subscription fee to be paid by the Subscriber (the "Subscription Fee"). Subscriber agrees to the terms of this Agreement and shall be responsible for ensuring that each of its Authorized Users complies with the terms of this Agreement. Subscriber shall be responsible for the acts and omissions of each of its Authorized Users.
1.3 Access to the Web Application.
1.3.1 Limited License. During the Term of this Agreement, Subscriber shall have a limited, revocable and non-transferable license to permit the Authorized Users set forth on the Subscription Form to access and use the Web Application solely for Subscriber’s internal business management purposes. TNP retains all ownership rights in and to the Web Application and to materials or information contained therein, including, without limitation, trademarks, trade names, logos, service marks, or any other proprietary content of TNP (the "Materials"). Except as expressly provided herein, TNP does not grant any express or implied right to Subscriber or Authorized Users under any patents, copyrights, trademarks, rights in trade secrets, or other intellectual property rights with respect to the Web Application or Materials.
1.3.2 Prohibited Use. Other than as expressly allowed herein, neither Subscriber nor any of the Authorized Users shall copy, reproduce, distribute, modify, decompile, disassemble, transfer, create derivative works from, sell, rent, lease, sublicense or otherwise exploit the Web Application or Materials.
1.3.3 Passwords. TNP will assign each Authorized User a user code ("User ID") and password ("Password"). Each Authorized User’s right to use the User ID and Password shall terminate immediately upon termination of this Agreement or upon termination of Authorized User's employment with Subscriber. Subscriber shall be solely responsible for monitoring and terminating its Authorized Users' access to the Web Application. Neither Subscriber nor its Authorized Users is permitted to access the Web Application using the User ID or Password of any other Authorized User. Subscriber shall be solely and exclusively responsible and liable for any access to the Web Application by any person or entity who gains access to the Web Application through the use of any Authorized User’s User ID or Password.
1.3.4 Availability. The Web Application is scheduled to be available 24 hours a day, 7 days a week. TNP reserves the right to interrupt, limit or suspend the Web Application from time to time for purposes of maintenance or upgrades. Subscriber agrees that TNP shall not be responsible or liable for any damages arising from any interruption or suspension of the Web Application, regardless of the cause.
1.4 Payment. Subscriber shall pay to TNP in full the Subscription Fee. All invoiced amounts are payable in U.S. dollars or Great British Pound or Euro upon receipt. If any sales, use, value-added, or other tax or charge is imposed or assessed by any governmental entity upon the sale, use or receipt of access to the Web Application, Subscriber agrees to pay such taxes or charges when invoiced by TNP.
1.5 Links to other internet web sites. The Web Application may contain links to third-party Web sites that are not under the control of TNP. TNP makes no representations whatsoever about any other Web site to which Authorized Users have access through the Web Application. TNP is not responsible for the accuracy or reliability of any information, data, opinions, advice, or statements made on these sites; or for the quality of any products or services available on such sites; or for any damage or loss caused or alleged to be caused through or in connection with use of or reliance on the content, goods, or services available on or through any such link, site, or resource.
1.6 Limitation of Liability.
1.6.1 Warranty Disclaimer. The Web Application and Materials are provided "as is" and "as available" without warranty of any kind, either express or implied, including, without limitation, any warranty as to the reliability, timeliness, quality, suitability, availability, accuracy or completeness of the Web Application or the Materials. TNP is not liable for any loss of money, goodwill or reputation, or any special, indirect or consequential damages arising, directly or indirectly, out of the use of or the inability to use the Web Application. Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to certain Subscribers.
1.6.2 Liability Cap. Regardless of the previous paragraph, if TNP is found to be liable, the total aggregate liability of TNP under the terms of this Agreement shall not exceed an amount equal to the fees paid by Subscriber during the twelve months immediately preceding the event giving rise to the claim.
1.7 Indemnification. Subscriber shall defend, indemnify and hold TNP (and its officers, directors, shareholders, agents, subsidiaries, affiliates, and employees) harmless from and against any and all claims, losses, damages, liabilities and expenses (including, without limitation, reasonable attorneys' fees) arising out of (a) any breach or alleged breach by Subscriber of this Agreement, or (b) any negligence, or willful or reckless actions or misconduct of Subscriber or Subscriber’s employees or agents, including Authorized Users.
1.8 Term. The term of this Agreement shall commence on the Start Date and shall continue until the End Date, as specified in the Subscription Form (the "Term"), unless earlier terminated in accordance with Section 1.9.
1.9 Termination & Renewal
1.9.1 Termination. Subscriber shall have the right to terminate this Agreement at any time upon written notice to TNP, provided that TNP shall have no obligation to refund any amounts paid by Subscriber hereunder upon any such termination and nothing herein shall relieve Subscriber of its obligation to pay in full the Subscription Fee. TNP shall have the right to terminate, change, suspend or discontinue any aspect of the Web Application at any time. TNP may restrict, suspend or terminate access to the Web Application if it believes that Subscriber or Authorized Users are in breach of the terms and conditions of this Agreement or applicable law, or for any other reason without notice or liability. Upon any termination of this Agreement, all rights granted to Subscriber hereunder shall cease, and Subscriber and the Authorized Users shall immediately discontinue use of the Web Application. The terms of Sections 1.4, 1.5, 1.6, and 1.7, shall survive the expiration or termination of this Agreement.
1.9.2 Automatic Renewals. This Agreement automatically renews for a successive term equal to the term subscribed before unless cancelled in writing by Subscriber prior to the end of the term renewal date. Renewal prices are subject to change. Renewal of services by Subscriber indicates agreement to any Agreement revisions and price changes.
1.10 Governing Law; Exclusive Jurisdiction. This Agreement is governed by the laws of the Republic of United States Of America, excluding its conflicts of laws principles. The exclusive jurisdiction for any action relating to this Agreement shall be in the Superior Court of Newark and the parties consent to such jurisdiction and waive and agree not to plead or claim that any such action is brought in an inconvenient forum. TNP makes no representation that the Web Application or Materials are appropriate for use in locations from territories where their contents are illegal is prohibited. Those who choose to access the Web Application from such locations do so on their own initiatives and are responsible for compliance with local laws.