Thank you for choosing to leverage the Topl Blockchain. Please read this BaaS License Agreement (the “Agreement”, "Terms of Use", or "Terms of Service") carefully as it governs your use of our technology, products, and services associated with our Blockchain-as-a-Service offering (the “Services”) and the relationship between you (the “User”, “you”, or "your", a “Party”) and Topl, Inc. and its affiliates (“Topl”, “we”, “us”, or “our”, also a “Party”). Topl provides the Services to you on the terms and conditions set forth in this Agreement and on condition that you accept and comply with them. By clicking on the “I Agree” or similar button or by accessing or using the Services, you accept all the terms, conditions, restrictions, and obligations of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the legal authority to bind such company or other legal entity to this Agreement. You and Topl hereby agree as follows.
1.1 By clicking on the “I Agree” or similar button or by accessing or using the Services, you agree that you will adhere to all terms and conditions of this Agreement, Topl’s Privacy Policy (which is incorporated herein by this reference, and consent to the practices concerning information collection, transmission and use described in the Privacy Policy), Topl’s Acceptable Use Policy, and any additional materials incorporated herein by reference as well as all applicable laws and regulations.
1.2 With regard to this Agreement, the term Services refers to Topl’s Blockchain-as-a-Service (Baas) offering along with any supporting documentation and the BaaS Portal provided to Users that enables you to form relationships and initiate transactions with other Users through multiple electronic interfaces including websites, mobile applications, web applications or “widgets”, blockchain-based services, wallets and tokens, and other applications and functionalities to manage your account, billing, and access to the Services. Topl’s BaaS offering is intended to provide you with access to Topl’s blockchain network via a hosted API.
1.3 By using the Services you agree that you understand the inherent risks associated with cryptographic and distributed ledger protocols and that you have an understanding of the usage and intricacies of blockchain-based software systems.
2.1 To access the Services, You must first create an account (“Account”) through the BaaS Portal with a valid email address and password. You agree to provide true, accurate, current and complete information as prompted by the BaaS Portal, including geographical location and address, authorized e-mail address, and any other information requested by Topl (the “Your Registration Data”). You further agree to maintain and promptly update the your Registration Data to keep it true, accurate, current and complete.
2.2 You must not create an account if you are under the age of 18 or for any person under the age of 18. If Topl learns of any User under the age of 18, it will terminate that User's account immediately. If the User is located in a country outside the United States, that country's minimum age may be older; in such a case, the User is responsible for complying with that country's laws.
2.3 You agree that your account is for your use alone and acknowledge that you may not share, resell, or transfer account login details any associated credentials such as API keys or blockchain private keys.
2.4 You are responsible for: (i) all activity that occurs within your account; (ii) maintaining the security of your account login credentials, API keys, and blockchain private keys; and (iii) promptly notifying Topl upon becoming aware of any unauthorized use of, or access to, the Services through your account. Topl will not be liable for any loss or damage resulting from a failure to comply with such responsibilities.
2.5 You may not register multiple accounts with the same billing details. Otherwise, Topl will have the right to automatically flag such accounts as fraudulent or in violation of this Agreement, and Topl reserves the right to suspend the Account and any other Account belonging to the User, without notification. Topl also reserves the right to terminate a User's Account if it is targeted by malicious activity from other parties.
2.6 You are solely responsible for obtaining, configuring and maintaining any hardware, network connectivity and third-party software required to access the Services, including computers, mobile devices, operating systems, web browsers and storage devices.
3.1 During the term of this Agreement and subject to your compliance in all material respects with the terms and conditions of this Agreement, Topl hereby grants to you (a) a limited, worldwide, revocable, non-exclusive, non-exclusive, non-transferable, non-sublicensable, non-assignable right and license to access and use the Topl application programming interface (“API”) for the purpose of accessing and using the Services and (b) a limited, worldwide, revocable, non-exclusive, non-transferable, non-sublicensable, non-assignable right and license to access and use the Services solely as necessary to send and receive transaction, account, and other related data to and from Topl’s blockchain network.
3.2 Except as expressly permitted under this Agreement or any open-source licenses that may control the source code underlying the Services, you must not yourself, nor permit any other party to: (a) reproduce, modify, translate, adapt or create derivative works based upon the Services; (b) reverse engineer, decode, decompile, disassemble or otherwise attempt to access or derive the source code or architectural framework of the Services; (c) access the Services for purposes of benchmarking or developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Services; (d) take any action that imposes an unreasonable or disproportionately heavy load on the Services or its infrastructure or that negatively affects the ability of others to access or use the Services; (e) use the Services in any way that does not comply with all applicable laws and regulations; (f) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas; (g) attempt to disable or circumvent any security mechanisms used by the Services; or (h) use the Services in a way that poses a risk to the Topl or other Users of the Services.
3.3 Topl may improve, modify, add or remove functions or features to or from the Services from time to time, with or without notice to you.
4.1 For the purposes of the Services, Organizations represent collections of Users joined through a single company or other incorporated entity or unincorporated affiliation. Organizations may have multiple Users in accordance with their Subscription Tier.
4.2 Your level of access to the Services is determined by your Subscription Tier. For the purposes of your Account and Organization, your Subscription Tier may, without limitation, determine: (i) the number of Users you may have associated with your Organization; (ii) the number of unique API keys you may generate or maintain; (iii) your level of Technical Support; and (iv) certain API quotas or limits for your use of the Services.
4.3 Access to the shared API keys of an Organization is controlled solely by the Admin User(s) or Owner(s) of the Organization. Topl is not responsible for the addition or removal of any User to an Organization.
4.4 The Admin User(s) or Owner(s) of an Organization is responsible for: (i) all activity that occurs within its Organization; (ii) maintaining the security of login credentials and API keys for all Users associated with the Organization; and (iii) promptly notifying Topl upon becoming aware of any unauthorized use of, or access to, the Services through the Organization. Topl will not be liable for any loss or damage resulting from a failure to comply with such responsibilities.
5.1 Depending on your Subscription Tier you may be entitled to Technical Support from Topl during the period of your subscription. Prior to making any request for support to Topl, you will use reasonable efforts to fix any error, bug, malfunction, or network connectivity defect without our involvement. When submitting a request, you will provide all requested diagnostic information and assist our support personnel as may be required to resolve a request. We will work with you to resolve all requests, it being understood and agreed that we do not guarantee resolution of any particular request. Target initial response times for requests are based on the support level that corresponds to your Subscription Tier as listed below.
5.2 Level 1 Support. We will process requests during our hours of operation (9:00 a.m. to 5:00 p.m., Monday through Friday, Central Time Zone), except for holidays in local time. We will use commercially reasonable efforts to respond within two business days (as averaged across all response times to Level 1 requests in a given calendar year) following receipt of your request.
5.3 Level 2 Support. We will process requests during our hours of operation (9:00 a.m. to 5:00 p.m., Monday through Friday, Central Time Zone), except for holidays in local time. We will use commercially reasonable efforts to respond to your written requests for Level 2 technical support within 24 hours (as averaged across all response times to Level 2 Requests in a given calendar year) following receipt of your request.
6.1 Pricing is available at on our Website. All fees must be paid in US Dollars. Amounts payable under this Agreement are non-refundable, except as otherwise provided in this Agreement. If you fail to pay any fees on time, Topl reserves the right, in addition to taking any other actions available under applicable law, to: (i) charge interest on past due amounts at 1.0% per month or the highest interest rate allowed by law, whichever is less, and to charge all expenses of recovery; and (ii) terminate or suspend Services to you and any associated Organizations.
6.2 You agree that that all your payment information is complete and accurate and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur.
6.3 We may use third-party payment processors ("Payment Processors”) to bill you for use of the Services. The processing of payments may be subject to the terms, conditions, and privacy policies of the Payment Processors in addition to this Agreement. We are not responsible for error by Payment Processors.
6.4 You acknowledge and agree that Topl may automatically charge your credit card or other payment account on record with us and/or our Payment Processors in connection with your use of the Services: (i) in advance of each period for your selected Subscription Tier; (ii) at the time of purchase for any Transaction Credits or Polys; and (iii) in arrears for any additional services you have used or added to your account term of your subscription period. Your subscription and any additional services added to your account will automatically-renew at the end of each period.
6.5 Topl may make changes to its pricing by updating the information on our Website. In the event that we change the pricing for any Services, the fees payable by you will increase or decrease in accordance with any such modification upon the date specified.
6.6 Unless otherwise stated, our fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction ("Taxes"). You are responsible for paying all Taxes associated with your purchases of the Services. If Topl has the legal obligation to collect or pay Taxes for which YOu are responsible under this section, the appropriate amount will be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Topl is solely responsible for taxes assessable against it based on its income, property, and employees.
7.1 Topl reserves the right, in our sole discretion, to suspend or terminate your access to all or any part of the Services at any time, with or without notice, effective immediately, including but not limited to as a result of your violation of any of this Agreement, any law or regulation, or our Acceptable Use Policy. Any such termination may result in the forfeiture and destruction of information associated with your Account. All fees owed to Topl before such termination will be immediately due and payable, including any liabilities that may have been incurred prior to termination.
7.2 If you wish to terminate your Account, you may do so only through the BaaS Portal.
7.3 Notwithstanding anything to the contrary, this Agreement may be terminated as follows: (i) by the non-breaching Party upon a material breach of this Agreement by the other Party, which breach is not cured within thirty (30) days after receipt of written notice from the non-breaching Party; or (ii) by either Party in the event the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such Party’s business.
7.4 All provisions of this Agreement which by their nature should survive termination will survive termination, including, without limitation, warranty disclaimers, indemnity, and limitations of liability.
7.5 Upon expiration or termination of this Agreement for any reason: (i) you must immediately cease all use of the Services and API; (ii) you must immediately cease all use of the Topl’s Confidential Information (as defined in Section 10.5) and return or destroy all copies of such Confidential Information that are within its custody or control; and (iii) Topl may delete or restrict access to your Data or any accounts associated with you.
7.6 We will retain and use your information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements, but barring legal requirements, we will delete your Registration Data within 90 days of cancellation or termination (though some information may remain in encrypted backups). This information cannot be recovered once your Account is cancelled. Due to the nature of blockchain networks, any and all data that you publish through the Services onto the Topl Blockchain or any testnet (testing or staging network) may not be deleted.
8.1 All information, data, and other materials accessible or calculated through the Services (“Data”) are the sole responsibility of the Party from whom such materials originated. The Services may provide access to or rely on Data from third parties, and such third parties, and not Topl, are entirely responsible for such Data. You, and not Topl, are solely responsible for: (a) all Data that you calculate, submit, upload, transmit, process or otherwise make available through the Services (“User Data”); and (b) giving all required notices and obtaining all necessary consents and rights (including all required permissions from intellectual property holders) before submitting User Data through or to the Services. Topl expressly disclaims any guarantees or assurances of accuracy or validity regarding Data.
8.2 You acknowledge and agree that, as between you and Topl, Topl owns all rights, titles, and interests (including all intellectual property) in and to the Services and API, and all improvements, enhancements or modifications thereto, including all Data therein (except for User Data).
8.3 Topl acknowledges and agrees that, as between you and Topl, you own all right, title and interest (including all intellectual property) in and to your User Data. You hereby grant Topl and its service providers a worldwide, royalty-free, non-exclusive license to store, parse, use, reproduce, modify, adapt, create derivative works from, perform, display, distribute, make and have made User Data (including Aggregate Data (as hereinafter defined) as necessary for Topl to provide access to and use of the Services and/or API to User. This includes, without limitation, the right to: (a) make backups and store User Data on Topl’s databases; (b) display User Data to you and those to whom you choose to show it; (c) parse User Data into a search index or otherwise analyze it on Topl’s servers; (d) share User Data with additional Users with whom you choose to share it; and (e) publish User Data either in full or part to the publicly accessible Topl Blockchain. This license does not grant Topl the right to sell User Data or otherwise distribute or use it outside of the Services. You grant to Topl the rights it needs to use User Data without attribution and to make reasonable adaptations of User Data as necessary to provide the Services. For the purpose hereof, Aggregate Data” means User Data that has been aggregated in a manner that does not reveal any personal information and cannot reasonably be used identify User as the source of such data.
8.4 You acknowledge that your User Data may be stored on or using Topl’s Blockchain or other distributed ledger technology. You understand there may be risks to storing data on or using such methods, including, without limitation, loss of User Data, loss of access to, or ability to manage, User Data and dependence on third party nodes running such networks or technologies. Topl will not be held responsible for any such loses or risks.
8.5 In the event that you provide any Suggestions (as hereinafter defined) to Topl, you hereby grants Topl and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Suggestions for any lawful purpose, without credit or compensation to you. For the purpose hereof, “Suggestions” means any suggestions, comments, ideas, improvements or other feedback relating to the Services that User elects to provide or make available to Topl.
8.6 Each of the Parties reserves all rights not expressly granted under this Agreement.
9.1 You and Topl each represents and warrants to the other that: (i) it has the necessary power and authority to enter into this Agreement; (ii) the execution and performance of this Agreement have been authorized by all necessary corporate or institutional action; (iii) entry into and performance of this Agreement will not conflict with any provision of law or the certificate of incorporation, bylaws or comparable organizational documents of such Party; (iv) no action by any governmental organization is necessary to make this Agreement valid and binding upon such Party; and (v) it possesses all governmental licenses and approvals necessary to perform its obligations under this Agreement.
9.2 You represent, warrant and covenant to Topl that: (i) you will keep all personal information (as defined in accordance with applicable laws) confidential and secure and will only process such information in accordance with applicable laws; (ii) it is in full compliance with any applicable law, statutes, or regulations relating to promotions and/or the use of coupon codes; and (iii) to the extent that User provides any integration of the Services with its own software or systems, such software or systems will not contain or transmit any viruses, spyware, “Trojan horses,” or other “malware” or harmful code.
10.1 We may change or discontinue any or all of the Services or change or remove functionality of any or all of the Services from time to time. We will make reasonable efforts to notify you of any material change to or discontinuation of the Service in advance of such a change.
10.2 TOPL PROVIDES THE SERVICES AND API “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THIS, WE EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES AND API INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY, AND NON-INFRINGEMENT. TOPL DOES NOT WARRANT THAT: (A) THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) THAT THE INFORMATION PROVIDED THROUGH THE SERVICES IS ACCURATE, RELIABLE OR CORRECT; (D) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (E) THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; OR (F) THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
10.3 Without limitation to anything in this Agreement, Topl will make commercially reasonable efforts to maximize the availability of our Services. Under certain circumstances, as defined in our Services Availability Policy, you may be entitled to a credit for Services.
10.4 To promote the broad availability of the Services, you acknowledge that in addition to any usage restrictions or limitations that may be determined by your Subscription Tier (“Hard Limits”), Topl reserves the right to enforce additional soft usage limits in its sole discretion.
10.5 ALL SERVICES LABELED ALPHA, BETA, PRE-RELEASE, TRIAL, PREVIEW OR SIMILARLY (“Beta Previews") ARE PROVIDED “AS IS”, “AS AVAILABLE”, “WITH ALL FAULTS,” AND YOUR USE OF SUCH BETA SERVICES IS AT YOUR SOLE RISK. Topl may provide Beta Previews of new Services or modifications of existing Services. These Beta Previews may not be supported and may be changed at any time without notice. In addition, Beta Previews are not subject to the same security and testing measures to which other Services have been subject. Topl does not assume any obligation to update any Beta Previews. In addition, any information about Topl’s roadmap outlines Topl’s general product direction and is subject to change at any time without notice. It is for informational purposes only and shall not be incorporated into this Agreement or any contract or other commitment. Topl undertakes no obligation either to develop the features or functionality provided in the Beta Previews, or to include any such feature or functionality in a future release of the Services. Additionally, you agree that any Beta Previews may give you information which Topl considers to be confidential (“Confidential Information”) regardless of whether it is marked or identified as such. You agree to only use such Confidential Information for the express purpose of testing and evaluating the Beta Preview and not for any other purpose. You should use the same degree of care as you would with your own confidential information, but no less than reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of our Confidential Information. You promise not to disclose, publish, or disseminate any Confidential Information to any third party, without Topl’s written consent, except in cases as may be required by law or court order, provided you make reasonable efforts to inform Topl of such required disclosure. Obligations of confidentiality will not extend to any information that is: (i) or becomes publicly available without breach of this Agreement; (ii) known to you before we disclose it to you; or (iii) independently developed by you without breach of any confidentiality obligation to us or any third party.
10.6 The Services may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Topl is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Topl does not assume and will not have any liability or responsibility to any User or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
OTHER THAN WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13.10 OR BREACH OF YOUR CONFIDENTIALITY OBLIGATIONS: (A) IN NO EVENT WILL TOPL BE LIABLE TO THE USER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR COST OF COVER, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY USE OF OR INABILITY TO USE THE SERVICES PROVIDED UNDER THIS AGREEMENT, SUCH AS ANY MALFUNCTION, DEFECT OR FAILURE OF THE SERVICES OR ITS DELIVERY VIA THE INTERNET, EVEN IF TOPL HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE; AND (B) EXCEPTING FEES OWED TO TOPL UNDER SECTION 6, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES RECEIVED BY TOPL FROM USER UNDER THIS AGREEMENT IN THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENTS GIVING RISE TO LIABILITY AROSE.
We reserve the right, in our sole discretion, to amend this Agreement at any time and will update this Agreement in the event of any such amendments. We will notify you of material changes to this Agreement at least 30 days prior to the change taking effect by posting a notice on our Website or BaaS Portal. With regard to both material or non-material modification, your continued use of the Services beyond the effective date of any changes will constitute acceptance of our revisions. You can view all changes to this Agreement at (legal.topl.co)[https://legal.topl.co].
13.1. Independent Contractors. The relationship between Topl and User established by this Agreement is solely that of independent contractors. Neither Party is in any way the partner or agent of the other, nor is either party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other Party.
13.2. Interpretation. For the purposes of this Agreement: (i) the words “such as”, “include”, “includes”, and “including” are to be deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii) the words “herein”, “hereof”, “hereby”, “hereto”, and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.
13.3. Additional Restrictions. You represent that you and your financial institutions, or any party that owns or controls you or your financial institutions, are: (i) not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority; and (ii) not located in any country to which the United States or the European Union has embargoed goods or has otherwise applied any sanctions. Additionally, you agree that you will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations as may be appropriate for the Services.
13.4. Assignment You may not assign any of your rights under this Agreement, or sublicense, assign or delegate any right or obligation hereunder, by operation of law or otherwise without the prior written consent of Topl and any such attempt will be void. Topl may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
13.5. Disputes Before filing a claim, each Party agrees to try to resolve the dispute by contacting the other Party through the notice procedures in this Agreement. If a dispute is not resolved within thirty (30) days of notice, Topl or the User may bring a formal proceeding.
You and Topl agree to resolve any claims relating to the Agreement or the Services through final and binding arbitration, except as set forth in this Agreement. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. Notwithstanding anything herein, the arbitration will be held in Travis County, Texas or any other location both Parties agree to in writing.
In the event that you, the User, are using the Services solely for your personal use and not in relation to your employment or any commercial interests, Topl grants to you the following: (i) Arbitration may be held in the United States county where you live or work; (ii) we will pay all arbitration fees for your individual arbitration for claims less than $50,000; and (iii) we will not seek our attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
Either Party may bring a lawsuit in the federal or state courts of Travis County, Texas solely for injunctive relief to stop unauthorized use or abuse of the Services or infringement of intellectual property rights without first engaging in the informal dispute notice process described above.
13.6. Entire Agreement. This Agreement, together with all incorporated references, represent the complete and exclusive statement of the agreement between you and Topl relating to the subject matter herein. Except in cases where you and Topl have executed an agreement that explicitly replaces or modifies any terms herein, this BaaS License Agreement supersedes any proposal or prior agreement oral or written, and any other communications between you and Topl.
13.7. Severability. If any provision of this Agreement is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.
13.8 Force Majeure. Except for payment obligations, both you and Topl will be excused from liability to the extent that either is unable to perform any obligation under this Agreement due to extraordinary causes beyond their reasonable control, including acts of God, natural disasters, strikes, lockouts, riots, acts of war, epidemics, pandemics, or power, telecommunication, or network failures.
13.9 Governing Law. This Agreement will be governed by the laws of the State of Texas, without regard to conflict of laws principles. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Western District of Texas. Each Party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any action or proceeding. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
13.10. Indemnification. (a) You must defend, indemnify and hold harmless Topl against any claim, demand, suit, or proceeding made or brought against Topl by a third party arising from or in any way related to: (i) your breach of this Agreement; (ii) your use of the Services; (iii) your violation of applicable laws, rules, or regulations in connection with the Services; or (iv) User Acts (as defined below). You must reimburse Topl for any damages, reasonable attorney fees, and amounts awarded in a court or arbitration approved settlement against Topl as a result of such a suit of proceeding.
(b) Topl must defend you against any claim, demand, suit, or proceeding made or brought against you by a third party alleging that use of the Services infringe or misappropriate the intellectual property rights of a third party; provided, however, that Topl will have no obligation to defend User from any Losses (as defined below) to the extent they arise from: (i) use of the Services in any manner by User that does not comply in all material respects with the terms and conditions of this Agreement, any policies, or applicable laws or regulations; (ii) use of the Services by User in combination with any hardware or software not provided or approved by Topl; (iii) modifications to the Services by or on behalf of User not made or authorized by Topl; or (iv) any User Data (Sections 13.10(b)(i) through 13.10(b)(iv) collectively, “User Acts”). Topl must reimburse you for any actual damages, reasonable attorney fees, and amounts finally awarded in a court or arbitration approved settlement against you as a result of such a suit of proceeding (“Losses”). If Topl believes the Services may be alleged to infringe a third party's intellectual property rights, then Topl may: (i) obtain the right for you, at our expense, to continue using the Services; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Services so that they no longer infringe. If Topl does not believe the options described in this section are commercially feasible, then Topl may in our sole discretion suspend or terminate your use of the affected Services, with a pro-rata refund of any prepaid and unused fees for the Services.
(c) In order to receive the benefits under this Section 13.10, the Party seeking indemnification must promptly notify the other Party of the claim and cooperate with the other Party in defending against the claim. The indemnifying Party will have full control and authority over the defense, except that: (i) any settlement requiring the Party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and (ii) the other Party may join in the defense with its own counsel at its own expense.
13.11. Interpretation of Conflicting Terms. If there is a conflict between the documents or materials incorporated by reference in this Agreement, the materials will take the following descending order of control: this BaaS License Agreement, our Acceptable Use Policy, our Services Availability Policy, our Privacy Policy, any material found on our Website or the BaaS Portal.
13.12. No Class Action. You may only resolve disputes with us on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed. If this specific section is held unenforceable, then Section 13.5 will be deemed void.
13.13. No Waiver. Any failure or delay by Topl to enforce any provision of this Agreement will not be considered a waiver of our right to enforce such provision.
13.14. Notices. All communications and notices to be made or given pursuant to this Agreement must be in English. We may provide any notice to you under this Agreement by posting a notice on our Website or the BaaS Portal or by sending a message to the email address associated with your Account. You will be deemed to have received any email sent to the email address then associated with your Account when we send the email, whether or not you actually receive the email. To give us notice under this Agreement, you must: (i) email us at [email protected]; or (ii) send us your notice by certified mail, return receipt requested, to Topl Inc. 708 Main Street, Houston, TX 77002, Attention: Legal Department.
13.15 Publicity. Through use of the Services, you grant Topl the right to identify the company or legal entity associated with your Organization as a Topl user in promotional materials. You may revoke this permission by notifying Topl in writing to stop using your organization in promotional materials. However, Topl will have no obligation to remove or recall any prior use or distribution of the promotional materials.
13.16. Required Disclosures. We will not disclose your User Data or any details regarding your account or usage information to any government or third party except as necessary to comply with the law or court order or as otherwise provided herein.
13.17. Website. The term Website, Topl's Website, or any similar terms refers collectively to any information published or made available by Topl to www.topl.co or topl.services as well as any subdomains thereof.