Effective Date: 20th July 2026
These TopMod Subscription Terms ("Terms") form part of the agreement between TestMod, Inc., a Louisiana corporation, trading as TopMod ("TopMod") and the customer identified in the applicable Subscription Order ("Customer").
TopMod and the Customer are referred to individually as a "Party" and together as the "Parties".
These Terms, together with the applicable Subscription Order, Privacy Policy and, where applicable, the Data Processing Addendum, govern the Customer's access to and use of the Services.
By executing a Subscription Order or otherwise accessing or using the Services, the Customer agrees to be bound by these Terms.
1. Agreement Documents
The agreement between TopMod and the Customer consists of:
1. the applicable Subscription Order;
2. these Subscription Terms;
3. the Data Processing Addendum, where applicable; and
4. the Privacy Policy.
Together, these documents constitute the entire agreement governing the Customer's subscription to the Services.
If there is any inconsistency between these documents, they take precedence in the order listed above. The Subscription Order may expressly modify or supplement these Terms. Any such modification applies only to the applicable Subscription Order and does not amend these Terms generally.
2. Definitions
For the purposes of these Terms:
Account means an account issued to an authorised User for access to the Services.
Administrator means a User authorised by the Customer to manage an Organisation, Workspace, Users, permissions, integrations, billing or other administrative settings.
Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with a party. Control means ownership of more than fifty percent (50%) of the voting interests or equivalent authority.
Beta Feature means any feature or functionality identified by TopMod as beta, preview, early access, experimental or similar.
Business Day means any day other than a Saturday, Sunday or public holiday in Louisiana.
Confidential Information means any non-public information disclosed by one party to the other that a reasonable person would understand to be confidential, including business information, technical information, pricing, security information, product plans and Customer Data.
Confidential Information does not include information that:
· becomes publicly available without breach of these Terms;
· was lawfully known by the receiving party before disclosure;
· is independently developed without reference to the disclosing party's Confidential Information; or
· is lawfully obtained from a third party without confidentiality restrictions.
Customer Data means all information, recordings, screenshots, audio, video, files, bug reports, attachments, comments, project information, telemetry and other content submitted to or generated within the Services by or on behalf of the Customer or its Users.
Documentation means the user guides, technical documentation and knowledge base materials made available by TopMod for the Services.
Fees means all subscription fees and other charges payable under a Subscription Order.
Organisation means the legal entity purchasing a subscription to the Services.
Privacy Policy means TopMod's then-current Privacy Policy.
Services means the hosted software, native applications, APIs, websites, integrations and related services provided by TopMod under a Subscription Order.
Subscription means the Customer's right to access and use the Services during the Subscription Term.
Subscription Order means the commercial ordering document executed between the parties that identifies the Subscription, Subscription Term, Fees and other agreed commercial terms.
Subscription Term means the subscription period specified in the applicable Subscription Order, including any renewal period.
User means an individual authorised by the Customer to access the Services.
Workspace means a logical environment within an Organisation used to organise Users, projects, integrations and Customer Data.
3. Subscription
Subject to the Customer's compliance with these Terms and payment of all applicable Fees, TopMod grants the Customer a limited, non-exclusive, non-transferable and non-sublicensable right to permit its authorised Users to access and use the Services during the applicable Subscription Term for the Customer's internal business purposes.
The Services are licensed on a subscription basis only. No ownership of the Services or any intellectual property rights is transferred to the Customer.
Unless otherwise agreed in writing, each User must access the Services using an individual Account. The Customer is responsible for all activity carried out using its Accounts and for ensuring that its Users comply with these Terms.
4. Organisation Administration
The Customer is responsible for administering its Organisation and any associated Workspaces.
The Customer shall designate one or more Administrators with authority to manage Users, permissions, integrations, subscription settings and other administrative functions available within the Services.
TopMod may rely on instructions received from an Administrator as instructions of the Customer.
The Customer is responsible for maintaining accurate User records, promptly removing Users who no longer require access and ensuring that Users are granted only the permissions necessary to perform their roles.
5. Customer Responsibilities
The Customer shall:
(a) administer its Organisation and Workspaces in a responsible manner;
(b) ensure that only authorised Users access the Services;
(c) maintain appropriate administrative, organisational and technical safeguards to protect Accounts and credentials;
(d) ensure that all Users comply with these Terms;
(e) ensure that all Customer Data submitted to the Services is accurate to the extent reasonably practicable;
(f) maintain all rights, licences, permissions and lawful authority necessary to submit Customer Data to the Services; and
(g) use the Services in accordance with these Terms, the Documentation and all applicable laws.
The Customer is responsible for all activity occurring under its Accounts unless such activity results directly from TopMod's breach of these Terms or negligence.
Where the Services are used to capture, record, process or store video, audio, screenshots, user input, telemetry or other evidence, the Customer is responsible for ensuring that such use complies with all applicable laws, regulations, workplace policies and any obligations relating to notice or consent.
TopMod does not determine whether the Customer's use of the Services complies with laws applicable to the Customer's business or jurisdiction.
6. Customer Data
As between the parties, the Customer retains all right, title and interest in Customer Data.
Nothing in these Terms transfers ownership of Customer Data to TopMod.
The Customer grants TopMod a worldwide, non-exclusive, royalty-free licence to host, store, reproduce, process, transmit and otherwise use Customer Data solely as necessary to:
· provide the Services;
· fulfil its obligations under these Terms;
· maintain and support the Services;
· investigate and resolve technical issues;
· detect, prevent and respond to fraud or security incidents;
· comply with applicable law; and
· improve the reliability, performance and security of the Services.
Except as permitted by these Terms or required by law, TopMod will not access Customer Data without the Customer's authorisation.
The Customer represents and warrants that it has obtained all rights, permissions and consents necessary for TopMod to process Customer Data in accordance with these Terms.
TopMod is not responsible for verifying ownership of Customer Data or determining whether the Customer has obtained any required permissions from third parties.
TopMod will not use Customer Data to train or fine-tune any general-purpose or shared artificial intelligence or machine-learning model, and will not authorise any third-party provider to do so, unless the Customer expressly agrees to that use in writing.
Where the Customer enables a feature that uses artificial intelligence or machine learning, the Customer authorises TopMod to process the relevant Customer Data solely as necessary to provide that feature. Any third-party provider processing Customer Data on TopMod’s behalf for that purpose will be treated as a subprocessor under the Data Processing Addendum.
7. Platform Data
TopMod may collect, generate and use operational, diagnostic, telemetry, security, performance and usage information relating to the operation of the Services ("Platform Data").
Platform Data may be used to:
· operate the Services;
· monitor performance and reliability;
· investigate incidents;
· improve security;
· develop new functionality;
· analyse usage trends; and
· improve the Services generally.
Platform Data does not transfer ownership of Customer Data to TopMod.
Platform Data does not include the substantive content of recordings, screenshots, audio, video, files, bug reports, attachments, comments or other Customer Data.
Where TopMod uses Platform Data for general product analytics, benchmarking, product development or external reporting, TopMod will aggregate or de-identify that information so that it does not reasonably identify the Customer, an individual User, a game title, a project or a particular software build.
TopMod will not disclose Customer Data except where reasonably necessary to provide the Services, investigate security incidents, comply with the Customer’s instructions or comply with applicable law.
Nothing in this Section limits the Customer's ownership of Customer Data.
8. Data Export and Deletion
During the Subscription Term, the Customer may export Customer Data using the functionality made available within the Services.
Following termination or expiry of the Subscription, Customer Data will remain available for export for thirty (30) days unless otherwise agreed in writing or required by applicable law.
After that period, TopMod may permanently delete Customer Data from its production systems.
Notwithstanding the foregoing, TopMod may retain:
(a) backup copies maintained in accordance with TopMod’s normal disaster recovery processes, provided that such copies will be securely overwritten or deleted within ninety (90) days after deletion from TopMod’s production systems;
(b) records required to comply with applicable law or regulatory obligations; and
(c) Platform Data that does not identify the Customer or disclose Customer Data.
Any retained Customer Data shall remain subject to the confidentiality obligations set out in these Terms.
Any Customer Data retained in backups will not be used for any other purpose and will not be restored except where reasonably necessary for disaster recovery, security investigation or legal compliance. If deleted Customer Data is restored from a backup, TopMod will ensure that it is deleted again in accordance with its normal deletion procedures.
9. Changes to the Services
TopMod continually develops, improves and evolves the Services. Accordingly, TopMod may introduce, modify, enhance, replace or retire features, functionality, integrations and other capabilities from time to time.
New functionality may be:
(a) included within the Customer's existing Subscription;
(b) made available under a different subscription plan or edition;
(c) offered as an optional add-on or premium capability;
(d) released as a Beta Feature; or
(e) made available under separate commercial terms.
Unless expressly stated otherwise, the introduction of new functionality does not require amendment of these Terms or execution of a new agreement.
TopMod retains sole discretion over the development, roadmap, packaging and future direction of the Services.
Included Entitlements
Certain features or capabilities may include usage allowances, consumption limits or other included entitlements, whether measured by storage, processing time, API usage, consumption, exports or other usage metrics.
Where applicable, those entitlements will be described in the applicable Subscription Order, Documentation or other commercial materials published by TopMod.
TopMod may introduce, modify or administer technical controls to manage included entitlements, provided that such changes do not materially reduce any purchased entitlement during the applicable Subscription Term unless:
(a) required by applicable law;
(b) reasonably necessary to protect the security, integrity or availability of the Services;
(c) necessary to prevent fraud, abuse or excessive use that materially impacts other customers; or
(d) otherwise agreed with the Customer.
Where TopMod introduces new technical controls for an existing entitlement, such controls may be implemented during or after the applicable Subscription Term provided they are consistent with the Customer's purchased commercial entitlement.
Nothing in this Section prevents TopMod from introducing new premium capabilities, optional paid services or additional consumption-based offerings in the future.
Nothing in this Section obligates TopMod to continue providing any Beta Feature or other pre-release functionality.
10. Beta Features
TopMod may make Beta Features available from time to time.
Beta Features are provided solely for evaluation purposes and may be modified, suspended or withdrawn at any time without notice.
Unless expressly stated otherwise:
· Beta Features are provided on an "as is" basis;
· Beta Features are excluded from any service commitments or service level objectives;
· Beta Features may contain defects or incomplete functionality; and
· TopMod makes no representation regarding the future availability of any Beta Feature.
The Customer acknowledges that Beta Features are optional and are used entirely at the Customer's discretion.
11. Third-Party Services
The Services may interoperate with third-party products, applications and services, including identity providers, issue tracking systems, communication platforms and cloud services.
The Customer acknowledges that those third-party services are governed by their own terms, conditions and privacy policies.
TopMod is not responsible for the operation, availability, security or performance of third-party services, nor for any changes made by third-party providers that affect an integration.
Where the Customer enables an integration, the Customer authorises TopMod to exchange Customer Data with the relevant third-party service solely to the extent necessary to establish and operate that integration.
TopMod may suspend or discontinue support for an integration where reasonably necessary because of legal requirements, security concerns or changes imposed by the third-party provider.
12. Acceptable Use
The Customer shall not, and shall ensure that its Users do not:
(a) use the Services in violation of applicable law;
(b) upload, transmit or distribute malicious code or other harmful software;
(c) interfere with the security, integrity or availability of the Services;
(d) attempt to gain unauthorised access to the Services or related systems;
(e) reverse engineer, decompile or otherwise attempt to derive the source code of the Services except where such restriction is prohibited by law;
(f) use the Services to infringe the intellectual property rights or other legal rights of any person;
(g) use the Services to develop or provide a competing product or service; or
(h) use the Services in any manner that could reasonably be expected to damage, disable or impair the Services or TopMod's ability to provide them.
TopMod may investigate suspected breaches of this Section and may suspend access to the Services where reasonably necessary to protect the Services, other customers or third parties.
13. Fees and Payment
The Customer shall pay the Fees specified in the applicable Subscription Order.
Unless otherwise stated in the applicable Subscription Order:
(a) Fees are payable in the currency specified in the Subscription Order.
(b) Fees are exclusive of applicable taxes, duties and governmental charges, excluding taxes imposed on TopMod's income.
(c) Invoices are due within the payment period specified in the Subscription Order.
(d) Except as expressly provided in these Terms, Fees are non-refundable.
If the Customer disputes an invoice in good faith, it shall notify TopMod before the applicable payment due date, identifying the disputed amount and the reasons for the dispute. The parties shall work together in good faith to resolve the dispute promptly. The Customer shall continue to pay all undisputed amounts when due.
TopMod may charge interest on overdue, undisputed amounts at the lesser of:
· one and one-half percent (1.5%) per month; or
· the maximum rate permitted by applicable law.
Persistent failure to pay undisputed Fees may result in suspension of the Services in accordance with Section 20.
14. Subscription Term and Renewal
Each Subscription begins on the commencement date specified in the applicable Subscription Order and continues for the applicable Subscription Term.
Unless otherwise specified in the Subscription Order, each Subscription automatically renews for successive renewal periods equal to the initial Subscription Term.
Either party may elect not to renew a Subscription by providing written notice before the notice period specified in the applicable Subscription Order.
Any renewal pricing shall be as specified in the applicable Subscription Order or as otherwise agreed in writing between the parties.
The expiry or termination of one Subscription Order does not affect any other Subscription Order unless expressly stated.
15. Support
TopMod will provide support in accordance with the support level purchased by the Customer.
Unless otherwise agreed in writing:
(a) support requests shall be submitted using TopMod's designated support channels;
(b) TopMod will use commercially reasonable efforts to respond to support requests;
(c) published response targets are service objectives only and are not guarantees; and
(d) support is provided during the support hours applicable to the Customer's Subscription.
TopMod may modify its support processes from time to time provided that such modifications do not materially reduce the support level purchased by the Customer during the current Subscription Term.
16. Confidentiality
Each party shall protect the Confidential Information of the other party using at least the same degree of care that it uses to protect its own confidential information, and in no event less than reasonable care.
The Receiving Party shall:
(a) use Confidential Information solely for the purpose of exercising its rights and performing its obligations under these Terms;
(b) disclose Confidential Information only to its employees, contractors, professional advisers and Affiliates who have a legitimate need to know such information and who are bound by confidentiality obligations no less protective than those contained in these Terms; and
(c) not publish, disclose, distribute or otherwise make Confidential Information available to any third party except as expressly permitted by these Terms.
A Receiving Party may disclose Confidential Information where required by law, regulation or a valid court order, provided that, where legally permitted, it gives the Disclosing Party reasonable advance notice to allow the Disclosing Party to seek appropriate protective relief.
The obligations contained in this Section survive termination of these Terms for five (5) years.
Notwithstanding the foregoing, obligations relating to Customer Data, unreleased game content, software builds, source code, security credentials, personal data and trade secrets survive for so long as the relevant information remains non-public or protected under applicable law.
17. Intellectual Property
As between the parties, TopMod and its licensors retain all right, title and interest in and to the Services, the Documentation and all related intellectual property rights.
This includes all:
· software;
· source code;
· object code;
· APIs;
· user interfaces;
· designs;
· databases;
· algorithms;
· workflows;
· trademarks;
· service marks;
· copyrights;
· patents;
· trade secrets;
· know-how;
· enhancements; and
· derivative works.
Except for the limited subscription rights expressly granted under these Terms, no licence or ownership interest is granted to the Customer.
The Customer shall not remove, obscure or alter any copyright notices, trademarks or proprietary notices contained within the Services or Documentation.
18. Feedback
The Customer and its Users may provide TopMod with suggestions, recommendations, enhancement requests, feature requests or other feedback relating to the Services.
The Customer grants TopMod a perpetual, irrevocable, worldwide, royalty-free right to use, modify, incorporate and commercialise such feedback without restriction and without any obligation to compensate the Customer.
Nothing in this Section requires TopMod to implement any feedback.
19. Publicity
Unless otherwise stated in the applicable Subscription Order, the Customer grants TopMod the right to identify the Customer as a customer of the Services.
This includes the right to use the Customer's:
· legal name;
· trading name;
· logo; and
· publicly available trademarks,
in customer lists, private presentations, proposals, investor materials, marketing materials and on the TopMod website.
TopMod will not publish a press release, customer case study, conference presentation or public description of the Customer’s use of the Services without the Customer’s prior written approval.
The Customer represents that it has the necessary rights to permit such use.
TopMod shall use the Customer's branding in a professional manner and substantially in accordance with any reasonable written brand guidelines provided by the Customer.
The Customer may withdraw this permission by written notice. Following receipt of such notice, TopMod will discontinue future use of the Customer's branding within a reasonable period. Withdrawal of permission does not require TopMod to recall or destroy materials already published or distributed.
20. Security and Data Protection
TopMod shall maintain commercially reasonable administrative, technical and organisational measures designed to protect Customer Data against unauthorised access, disclosure, alteration and destruction.
TopMod may update its security practices from time to time to reflect changes in technology, industry standards and emerging security threats, provided that such changes do not materially reduce the overall level of protection provided to Customer Data during the applicable Subscription Term.
TopMod will notify the Customer without undue delay after becoming aware of a material security incident that has resulted in unauthorised access to or disclosure of Customer Data.
Where TopMod processes personal data on behalf of the Customer, such processing shall be governed by the applicable Data Processing Addendum.
In the event of any inconsistency between these Terms and the Data Processing Addendum in relation to the processing of personal data, the Data Processing Addendum shall prevail.
TopMod may publish and update security documentation describing its security practices. Such documentation is provided for informational purposes only unless expressly incorporated into a Subscription Order.
21. Suspension
TopMod may suspend the Customer's or any User's access to all or part of the Services immediately where reasonably necessary to:
(a) protect the security, integrity or availability of the Services;
(b) investigate suspected fraud, unlawful activity or material misuse of the Services;
(c) prevent material harm to TopMod, its customers or any third party;
(d) comply with applicable law, regulation or a lawful request from a governmental authority;
(e) address a material breach of these Terms; or
(f) respond to an actual or suspected security incident.
Where reasonably practicable, TopMod will provide advance notice of any suspension.
Where advance notice is not reasonably practicable, TopMod will notify the Customer as soon as reasonably possible after the suspension.
TopMod will use commercially reasonable efforts to restore access promptly once the circumstances giving rise to the suspension have been resolved.
Suspension under this Section does not relieve the Customer of its obligation to pay Fees that continue to accrue during the applicable Subscription Term.
22. Termination
Either party may terminate a Subscription Order:
(a) if the other party materially breaches these Terms and fails to remedy that breach within thirty (30) days after receiving written notice;
(b) immediately if the other party becomes insolvent, enters liquidation, ceases carrying on business or becomes subject to bankruptcy or similar proceedings; or
(c) where expressly permitted by the applicable Subscription Order.
Termination of one Subscription Order does not automatically terminate any other Subscription Order unless expressly stated.
Upon termination or expiry:
(a) all rights granted to the Customer under these Terms immediately cease;
(b) the Customer shall cease accessing and using the Services;
(c) each party shall return or securely destroy the other party's Confidential Information, except where retention is required by law or permitted under these Terms;
(d) Customer Data shall be handled in accordance with Section 8; and
(e) any Fees accrued prior to termination remain immediately due and payable.
Termination is without prejudice to any rights or remedies accrued prior to the effective date of termination.
23. Warranties
Each party represents and warrants that:
(a) it has the full right, power and authority to enter into these Terms;
(b) these Terms constitute a valid and binding obligation enforceable against it; and
(c) it will comply with all laws applicable to its performance under these Terms.
TopMod further warrants that it has the legal authority to provide the Services and will provide them using commercially reasonable skill, care and diligence consistent with generally accepted industry standards.
Except as expressly provided in these Terms, the Services and Documentation are provided on an "as is" and "as available" basis.
To the fullest extent permitted by applicable law, TopMod disclaims all other warranties, whether express, implied, statutory or otherwise, including any implied warranties of:
· merchantability;
· fitness for a particular purpose;
· title;
· quiet enjoyment; and
· non-infringement.
TopMod does not warrant that:
· the Services will operate uninterrupted or error-free;
· every defect will be corrected;
· every third-party integration will remain continuously available;
· the Services will meet requirements not expressly agreed in writing; or
· use of the Services will achieve any particular business outcome.
24. Indemnification
24.1 TopMod Intellectual Property Indemnity
TopMod shall defend the Customer against any third-party claim alleging that the Customer's authorised use of the Services infringes a patent, copyright, trademark or other intellectual property right, and shall pay any damages finally awarded by a court of competent jurisdiction or agreed in settlement by TopMod, provided that the Customer:
(a) promptly notifies TopMod in writing of the claim;
(b) grants TopMod sole control over the defence and settlement of the claim; and
(c) provides reasonable assistance, at TopMod's expense.
If the Services become, or in TopMod's reasonable opinion are likely to become, the subject of such a claim, TopMod may, at its option and expense:
(a) obtain the right for the Customer to continue using the affected Services;
(b) modify the affected Services so they become non-infringing without materially reducing their functionality;
(c) replace the affected Services with substantially equivalent functionality; or
(d) terminate the affected Subscription Order and refund any prepaid Fees covering the unused portion of the Subscription Term.
TopMod has no obligation under this Section where the claim arises from:
(a) Customer Data;
(b) modifications made by anyone other than TopMod;
(c) use of the Services with products or services not supplied or approved by TopMod where the claim would not otherwise have arisen;
(d) continued use of the Services after TopMod has provided a replacement, modification or workaround intended to avoid infringement; or
(e) use of the Services contrary to these Terms or the Documentation.
This Section states TopMod's sole liability, and the Customer's exclusive remedy, for any intellectual property infringement claim relating to the Services.
24.2 Customer Indemnity
The Customer shall defend, indemnify and hold harmless TopMod, its Affiliates, officers, directors, employees and contractors from and against any third-party claim, demand, action or proceeding to the extent arising out of or relating to:
(a) infringement or alleged infringement of a third party’s intellectual-property rights by Customer Data;
(b) unlawful use of the Services by the Customer or its Users; or
(c) the Customer’s failure to obtain the rights, notices, consents or other lawful authority required for the Customer’s recording or processing of an individual through the Services.
The Customer will have no obligation under this Section to the extent that a claim arises from TopMod’s breach of these Terms, negligence, wilful misconduct, modification of Customer Data or use of Customer Data outside the Customer’s authorisation.
TopMod shall:
(a) promptly notify the Customer of any such claim;
(b) permit the Customer to control the defence and settlement of the claim; and
(c) provide reasonable assistance at the Customer's expense.
The Customer shall not settle any claim in a manner that admits liability on behalf of TopMod or imposes any obligation on TopMod without TopMod's prior written consent, not to be unreasonably withheld or delayed.
25. Limitation of Liability
Nothing in these Terms excludes or limits liability to the extent such liability cannot lawfully be excluded or limited.
Subject to the foregoing:
(a) TopMod's aggregate liability arising out of or relating to these Terms, all Subscription Orders and the Services, whether in contract, tort (including negligence), statute or otherwise, shall not exceed the total Fees paid by the Customer during the twelve (12) months immediately preceding the event giving rise to the claim.
(b) Neither party shall be liable for any indirect, incidental, consequential, exemplary, special or punitive damages, or for any loss of profits, revenue, goodwill, anticipated savings, business opportunity, business interruption or loss or corruption of data, even if advised of the possibility of such damages.
The general liability cap set out above does not apply to either party’s obligations under Section 24 (Indemnification), Section 16 (Confidentiality), or the Data Processing Addendum.
Instead, each party’s total aggregate liability arising from those obligations, or from a security incident caused by that party’s material breach of its obligations under these Terms, shall not exceed two (2) times the general liability cap set out above.
No limitation or exclusion of liability in these Terms applies to:
(a) the Customer’s obligation to pay Fees;
(b) the Customer’s infringement or misappropriation of TopMod’s intellectual-property rights;
(c) fraud, fraudulent misrepresentation or wilful misconduct; or
(d) any liability that cannot lawfully be excluded or limited.
A different enhanced liability cap may be agreed in the applicable Subscription Order.
The parties acknowledge that the Fees reflect the allocation of risk set out in these Terms and that those limitations form an essential basis of the bargain between the parties.
26. Compliance with Laws
Each party shall comply with all laws and regulations applicable to its performance under these Terms.
Without limiting the foregoing:
(a) the Customer is responsible for ensuring that its use of the Services complies with all laws applicable to its business, industry and jurisdictions in which it operates;
(b) each party shall comply with all applicable export control, sanctions, anti-bribery and anti-corruption laws;
(c) neither party shall knowingly use or provide the Services in violation of applicable export restrictions or trade sanctions; and
(d) the Customer is responsible for obtaining any licences, consents or approvals required for its use of the Services.
Nothing in these Terms requires either party to act in a manner that would violate applicable law.
27. Governing Law and Jurisdiction
These Terms, each Subscription Order and any dispute, claim or controversy arising out of or relating to them, the Services or the relationship between the parties shall be governed by and construed in accordance with the laws of the State of Louisiana, without regard to its conflict of law principles.
The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to these Terms or any Subscription Order.
The parties irrevocably agree that the state and federal courts located within the State of Louisiana shall have exclusive jurisdiction to hear and determine any dispute arising out of or relating to these Terms, and each party irrevocably submits to the jurisdiction of those courts.
28. General
28.1 Independent Contractors
The relationship between the parties is that of independent contractors.
Nothing contained in these Terms shall be construed as creating a partnership, joint venture, fiduciary relationship, agency or employment relationship between the parties.
Neither party has authority to bind the other except as expressly provided in these Terms.
28.2 Assignment
Neither party may assign or transfer these Terms, whether by operation of law or otherwise, without the prior written consent of the other party.
Notwithstanding the foregoing, either party may assign these Terms without consent:
(a) to an Affiliate; or
(b) in connection with a merger, acquisition, corporate reorganisation or sale of substantially all of its assets,
provided that the assignee agrees in writing to be bound by these Terms.
Any assignment in breach of this Section is void.
28.3 Force Majeure
Neither party shall be liable for any failure or delay in performing its obligations under these Terms to the extent caused by events beyond its reasonable control, including:
· natural disasters;
· acts of government;
· war;
· terrorism;
· civil unrest;
· labour disputes;
· failures of telecommunications providers;
· widespread internet outages;
· failures of cloud infrastructure providers;
· denial-of-service attacks; or
· other events beyond the reasonable control of the affected party.
The affected party shall:
(a) notify the other party as soon as reasonably practicable; and
(b) use commercially reasonable efforts to minimise the effects of the event and resume performance as soon as reasonably possible.
Force majeure does not excuse the Customer's obligation to pay Fees accrued prior to the force majeure event.
28.4 Notices
Any notice required under these Terms must be in writing and delivered to the notice contact specified in the applicable Subscription Order, or to any replacement notice contact notified in writing by the receiving Party.
Notices may be delivered by recognised overnight courier, certified or registered mail, or email.
A notice is deemed received:
on delivery where delivered by courier;
on confirmation of receipt where delivered by email; or
three (3) Business Days after posting by registered mail.
This Section applies only to legal notices under these Terms. Operational communications, including maintenance notifications, security notifications, invoices, support communications and product announcements, may be delivered through the Services, by email or through other communication channels designated by TopMod.
28.5 Electronic Signatures
The parties agree that:
· electronic signatures;
· electronically executed Subscription Orders; and
· electronic acceptance of these Terms,
shall have the same legal effect as original handwritten signatures to the fullest extent permitted by applicable law.
28.6 Waiver
No failure or delay by either party in exercising any right or remedy under these Terms shall constitute a waiver of that right or remedy.
A waiver is effective only if made in writing and signed by the party granting the waiver.
A waiver of any breach shall not constitute a waiver of any subsequent breach.
28.7 Severability
If any provision of these Terms is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, that provision shall be enforced to the maximum extent permitted by law and the remaining provisions shall remain in full force and effect.
28.8 Survival
The following provisions survive termination or expiry of these Terms:
· Customer Data;
· Confidentiality;
· Intellectual Property;
· Feedback;
· Indemnification;
· Limitation of Liability;
· Fees accrued before termination;
· Governing Law and Jurisdiction; and
· any provision that by its nature is intended to survive.
28.9 Entire Agreement
These Terms, together with each applicable Subscription Order, the Privacy Policy and, where applicable, the Data Processing Addendum, constitute the entire agreement between the parties relating to the Services and supersede all prior and contemporaneous proposals, negotiations, communications and agreements relating to their subject matter.
28.10 No Reliance
Each party acknowledges that, in entering into these Terms and each Subscription Order, it has not relied upon, and shall have no remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) that is not expressly set out in these Terms or the applicable Subscription Order.
Nothing in this Section limits or excludes liability for fraud or fraudulent misrepresentation.
28.11 Amendment
TopMod may update these Terms from time to time.
Where an update materially affects the rights or obligations of Customers, TopMod will provide reasonable notice before the updated Terms become effective.
Updated Terms will apply from the stated effective date. Material changes will not apply retrospectively to an existing Subscription Term unless:
(a) required by applicable law;
(b) necessary to address security, fraud or abuse; or
(c) agreed by the Customer.
Nothing in this Section limits changes expressly agreed between the parties in a Subscription Order.
28.12 Headings
Section headings are included for convenience only and do not affect the interpretation of these Terms.
