Terms of Service

1. Access & License

1. Topogy hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Services during the Term for its internal business purposes in accordance with these Terms. Customer may make the Services available to its employees (each, an “Authorized User”) in accordance with the number of Authorized User credentials or seats granted to Customer by Topogy. Only Authorized Users may access the Services, and Customer is responsible for the compliance of each Authorized User with all applicable laws and this Agreement when using the Services. Credentials used by Authorized Users to access the Services may not be shared with others.
2. Restrictions. Customer may not (i) repackage the Services or any of its elements on a stand-alone basis, (ii) incorporate Services elements into any other product or offering, (iii) sell, resell, rent, lease or otherwise make the Services available to third parties, including on a service bureau basis, (iv) share benchmarking or testing results of the Services with any third party, (v) isolate or extract elements of the Services for any purpose, or (vi) reverse engineer, decompile, disassemble or attempt to derive the source code of the Services.

2. Customer Data

1. Customer grants Topogy a non-exclusive, non-transferable, worldwide, royalty-free license during the Term to use any (i) information uploaded to or made available through the Services by Customer or Authorized Users, and (ii) Customer-specific output resulting from the use of the Services, collectively, “Customer Data” for the sole purpose of providing the Services. Customer represents and warrants that: (1) it owns (or has the right to make available for use hereunder) Customer Data including with respect to obtaining the right for Topogy to access any third party services on which Customer Data may reside and (2) Customer’s and its Authorized Users use of the Service, and use and maintenance of Customer Data in connection with the Service, will comply with all applicable laws.
2. Customer will not upload any Customer Data to the Service that violates, or encourages any conduct that would violate any applicable law or regulation.
3. For purposes of these Terms, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Services in the course of using the Services. Customer shall retain all right, title and interest in and to the Customer Data. Customer, not Topogy, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer represents and warrants that it has all rights necessary to provide the Customer Data to Company as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including without limitation, intellectual property rights and rights of privacy).

3. Obligations

• Of Topogy. (i) Support. Topogy will (1) use commercially reasonable efforts to promptly resolve issues with the Service reported through our then-current customer support channels; (2) provide Customer with all new releases, modifications, and enhancements to the Services made available to all users of the Services (each, an “Update”) when such Update is released; and (3) provide Customer with access to all standard documentation for the Service, which may be online. (ii) Security. Topogy will maintain appropriate administrative, technical and physical safeguards to protect the security, confidentiality, and integrity of the Services and any Customer Data stored on, or accessible via, the Services.
• (b) Of Customer. Customer will (i) as set forth in Section 2, obtain any licenses or consents required for the Service to access Customer Data hosted on or available through third party services; (ii) be responsible for any network and internet connectivity required to access the Service via the internet; (iii) ensure that it uses the Services in a way that does not violate any laws or regulations and does not distribute malicious code

4. Ownership

• Except for the limited license granted to Customer in Section 1(a), Topogy retains all right, title and interest in and to the Services.
• (b) Except for the limited license granted to Topogy in Section 2(a), Customer retains all right, title and interest in and to the Customer Data.
• (c) Topogy owns all data (i) regarding installation, registration, and use of the Services; and (ii) related to performance of the Services, including response times, load averages, usage statistics, activity logs, (collectively, “Performance Data”). Performance Data does not include any Customer Data, but may include aggregated or anonymized information derived from Customer Data.
• (d) All feedback, suggestions, improvements, and recommendations regarding the Services provided to Topogy by Customer or its Authorized Users (“Feedback”) will be owned by Topogy, and Customer hereby assigns all right, title and interest in and to Feedback to Topogy.

5. Confidentiality

1. “Confidential Information” means any information disclosed by one party to the other party that is marked “confidential” or “proprietary” at the time of disclosure, is identified as “confidential” or “proprietary” at the time of disclosure, or under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Customer Data is considered Customer’s Confidential Information, the Services are Topogy’s Confidential Information, and the terms of the Agreement constitute Confidential Information of both Customer and Topogy.
2. The use and nondisclosure obligations and restrictions set forth in this section will not apply to any information that: (a) is or becomes generally known to the public through no breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure; (c) is independently developed by the receiving party without use of or access to the disclosing party’s Confidential Information; or (d) the receiving party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing party.
3. A receiving party will not use the disclosing party’s Confidential Information except as necessary for the performance or enforcement of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement, provided each such employee and subcontractor is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in this Section. Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving Party ordinarily uses with respect to its own confidential information and in no event less than a reasonable standard of care.
4. The provisions of Section 5 will not restrict either party from disclosing Confidential Information, including Customer Data, pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request. The party responding to such an order or requirement will only disclose that information that is expressly required.

6. Payment

Customer shall pay the applicable fees billed to Customer by Topogy for the Services (the “Fees”) as set forth on the executed Order Form. The Fees for the Term are due and payable within 30 days of the Start Date of the Agreement, unless otherwise communicated on the Order Form. Customer is responsible for the payment of all applicable sales, use, withholding, VAT and other similar taxes (except for taxes based on the net income of Topogy). All additional Fees are due and payable within 30 days of such due date or the date of the invoice provided by Topogy, unless otherwise communicated by Topogy. All Fees are non-refundable and non-cancelable. Topogy will notify Customer in advance of billing Customer for any Fees. All payments of Fees under this Agreement must be in US dollars and made by credit card or ACH electronic payment at the billing address, and using the email, listed in the signature block below.

7. Beta Features

We may offer experimental or beta features. These are provided “as-is” without guarantees and may be changed or discontinued at any time.

Use of beta features is at your own risk.

8. Warranties & Disclaimer

THE SERVICE IS PROVIDED “AS IS,” WITHOUT ANY WARRANTIES OF ANY KIND. TOPOGY DISCLAIMS ALL WARRANTIES RELATED TO THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, and does not warrant that the Services will be uninterrupted or error-free.

9. Limitation of Liability & Indemnification

(a) Customer will defend, indemnify and hold harmless Topogy from and against any and all damages, liabilities, losses, and expenses (including any and all reasonable attorney fees, expenses and costs) incurred by Topogy in connection with or arising from any third party claim or demand arising from Customer's breach or alleged breach of any representation or warranty in this Agreement.

(b) Topogy will defend, indemnify, and hold harmless Customer from and against any and all damages, liabilities, losses, and expenses (including any and all reasonable attorney fees, expenses and costs) incurred by Customer in connection with or arising from any third party claim that use by Customer of the Services as furnished hereunder, which use is in accordance with the terms and conditions of this Agreement, directly infringes any valid United States patent, copyright, or trade secret.

(c) EXCEPT FOR LIABILITY ARISING DUE TO A PARTY’S INDEMNIFICATION OBLIGATIONS, BREACH OF SECTION 5, WILLFUL MISCONDUCT, GROSS NEGLIGENCE, OR FRAUD, NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT (REGARDLESS OF THE THEORY OF LIABILITY ASSERTED AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) FOR: (A) ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR (B) DIRECT DAMAGES EXCEEDING THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO TOPOGY DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE ACTION THAT GAVE RISE TO THE LIABILITY.

10. Termination

Either party may terminate this Agreement (and any Order Forms then in effect) if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after delivery of notice of such breach. If Customer terminates this Agreement under this Section 10, Topogy shall refund Customer any prepaid Fees on a pro-rata basis as of the effective date of such termination. Upon expiration or termination of this Agreement for any reason, all rights and licenses granted will immediately terminate, Customer will cease use of the Service, Topogy will remove all Customer Data from the Services. Sections 1(b), 4, 5, 8, 9, 12, 14, and this sentence will survive any termination or expiration of this Agreement.

11. Publicity

Unless otherwise agreed in writing, you grant us the right to identify your company name and logo as a user of our Services on our website and in marketing materials. From time to time, we may also request your participation in a testimonial, quote, or case study to highlight your use of the Services. Participation in such materials will always be subject to your approval. You may opt out of any publicity or marketing references at any time by emailing support@topogy.com.

12. Governing Law

These Terms are governed by the laws of the State of Delaware, without regard to conflict of law principles.

13. Changes to Terms

We may update these Terms from time to time. We will notify you of material changes (e.g., via email or in-app notification), and post the new Terms on our website. Continued use of the Services after changes go into effect constitutes your acceptance of the updated Terms.

14. General

The Parties are independent contractors and the Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between them. The Parties are not obligated to enter into any commercial or other agreement subsequent to the Agreement. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of the Agreement is determined to be invalid, unlawful, or unenforceable to any extent, the remainder of the Agreement will be unaffected. The Agreement sets forth the entire agreement of the Parties relating to its subject matter and supersedes all prior or contemporaneous agreements and understandings between the Parties relating to its subject matter, and may be executed in one or more counterparts, including by electronic means, all of which together will comprise a single agreement.

15. Contact Us

If you have any questions or concerns, please reach out:

Email: support@topogy.com