TOPS VENDOR PORTAL – VENDOR AGREEMENT

This TOPS Vendor Portal Vendor Agreement (“Agreement”) is between the person or entity accepting this Agreement (“Vendor”, “you”, or “your”), and TOPS Software LLC, a Maryland corporation (“TOPS”, “Company”, “we” or “our”).  This Agreement governs your use of the TOPS Vendor Portal (“Services”).

THESE TERMS CONTAIN AN ARBITRATION NOTICE AND CLASS ACTION WAIVER WHERE ALL DISPUTES BETWEEN YOU AND THE COMPANY SHALL BE RESOLVED ON AN INDIVIDUAL BASIS THROUGH BINDING ARBITRATION OR SMALL CLAIMS COURT WITH A WAIVER OF ANY RIGHT TO PARTICIPATE IN A CLASS ACTION/COLLECTIVE LAWSUIT OR ARBITRATION.

BY CLICKING THE “AGREE” BUTTON YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; (C) ARE AN EXISTING VENDOR OF A TOPS’ CUSTOMER; (D) ACCEPT AND AGREE THAT YOU ARE LEGALLY BOUND BY THIS AGREEMENT; AND (E) WARRANT AND REPRESENT THAT YOU HAVE FULL AUTHORITY TO ENTER INTO THIS AGREEMENT AND LEGALLY BIND THE BUSINESS ENTITY WHO IS USING THE SERVICES, AND THAT ALL CONSENTS AND APPROVALS NECESSARY FOR SUCH APPROVAL HAVE BEEN OBTAINED OR WAIVED. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE SERVICES.

We reserve the right to amend and modify this Agreement upon our discretion by posting the amended or modified agreement to our website at https://info.topssoft.com/vauseragreement, and providing you notice of such posting to the email address contained in your Vendor Account (defined below).  If you continue to use our Services after you have been notified of the amended or modified Agreement, then you will be deemed to have accepted such amended or modified Agreement which shall control your use of our Services.

Description of Services.

The Services consist of an internet portal where you can send electronic communications to TOPS’ customers (“Customers”), such as bills, invoices, status updates, etc. (“Vendor Communications”) and facilitates the direct deposit of Customer payments for services provided by you into your account (“Vendor Payment”).  To subscribe to the Services you must be a current vendor to one of our customers.  You agree that we or our customers may email you an invite to subscribe to the Services via email (“Vendor Invite”).

Vendor Communications.

We do not monitor and are not responsible for the content of any Vendor Communications, including the accuracy or inaccuracy of such content.  You represent and warrant that Vendor Communications are true, accurate and comply with our Content Standards (identified below).

Vendor Payment.

The Services facilitate Vendor Payment via an electronic transaction, such as an ACH transaction, wherein your customer’s account is electronically debited the payment and the payment is electronically credit to your account (“Direct Deposit”).  You are solely and exclusively responsible for the accuracy of all Vendor Payment information.

You grant us and our third-party payment partners permission to facilitate an electronic Vendor Payment. We are not responsible for: (a)  any fees (such as non-sufficient funds), costs or expenses associated with any electronic Vendor Payment being returned due to insufficient funds; (b) any errors in the amount of the Vendor Payment not exclusively attributable to us; (c) any disputes between you and Customer regarding the Vendor Payment or the services rendered in connection with such payment; or (d) the third-party processing of the electronic Vendor Payment.  You shall indemnify and hold us, our affiliates, employees, officers and directors harmless from any and all claims and losses arising from any of the foregoing, which shall survive the expiration or termination of this Agreement.

Payment Partner.

In order to use the payment functionality of VendorAlly, you must open a “Dwolla Platform” account provided by Dwolla, Inc. and you must accept the Dwolla Terms of Service and Privacy Policy. Any funds held in the Dwolla account are held by Dwolla’s financial institution partners as set out in the Dwolla Terms of Service. You authorize TOPS Software to collect and share with Dwolla your personal information including full name, [date of birth, social security number, physical address,] email address and financial information, and you are responsible for the accuracy and completeness of that data. You understand that you will access and manage your Dwolla account through VendorAlly, and Dwolla account notifications will be sent by TOPS Software, not Dwolla. TOPS Software will provide customer support for your Dwolla account activity, and can be reached online at www.topssoft.com, via email at support@topssoft.com and via phone at 1-800-760-9966.

Service Fee.

You shall pay us a service fee of 1.25% of the total amount of each electronic Vendor Payment (“Service Fee”).  All Direct Deposits shall be less any applicable Service Fee.  We may, in our sole determination, change the Service Fee, provided that we send you notice of such change to the email address registered with your Vendor Account.   If you continue to use the Services after the new Service Fees go into effect, then you shall be deemed to have accepted the new Service Fees.  You agree that all Service Fees are payable without any right of set off and are non-refundable.

Authorization.

I hereby appoint and authorize Company’s Payment Partner to act as my representative to facilitate electronic Direct Deposit of Vendor Payments between Vendor and Customer.

I authorize Company’s Payment Partners, to act as my limited agent for the purpose of receiving and settling payments to me less the Service Fees.  I agree that a Vendor Payment received by the Payment Partner, on my behalf, satisfies the payer’s obligations to make the applicable payment to me, regardless of whether the Payment Partner actually settles such payment to me, and accordingly, such payment obligation is considered satisfied and extinguished upon receipt.  Subject to applicable laws, government regulations and card association rules, in the event the Payment Partner does not make any such payment to me as described in this Agreement, I will have recourse against the Payment Partner and not payer, as such payment is deemed made by payer to me upon receipt by the Payment Partner.

Taxes.

We shall not be responsible for the collection of any taxes or similar assessments that may be applicable to any Vendor Payments or the Direct Deposit thereof.  You are solely and exclusively responsible for the collection of all taxes and similar assessments on any amounts you receive from Customer through the Services.  All Service Fees and other amounts payable to us under this Agreement are exclusive of taxes and similar assessments. You are responsible for all sales, use, and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on our income.

Attorneys’ Fees/ Collections.

If we use an attorney or a collection agency to collect any money you owe us, or to assert any other right that we may have against you, then you hereby agree to pay the reasonable costs of such collection or other action. These costs may include the costs of a collection agency, reasonable attorneys’ fees, and court costs. If you believe you have been assessed a Service Fee in error, you must contact our Customer Service immediately, and in no event more than thirty (30) days following such assessment.  Failure to timely notify us of any dispute will constitute your acceptance of the Service Fee.

Customer/Vendor Disputes.

All issues or disputes arising from or relating to the services you provide to the Customer and any payments for such services are solely and exclusively between you and the customer (“Customer Disputes”) and must be directed to customer and not TOPS.  You hereby indemnify and hold us harmless of all Customer Disputes.

Accessing the Services and Account Security.

We reserve the right to withdraw or amend any Services in our sole discretion without notice. We will not be liable if, for any reason, all or any part of the Service is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Services to Customers and Vendors.

You are responsible for both:

To access and use the Service you will be asked to provide certain registration information to create your account (“Vendor Account”). It is a condition of your use of the Service that all the information you provide in your Vendor Account is correct, current, and complete.

If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide it to any other person to access  the Services or portions of it.  If your employees or authorized representatives must access and use the Services, then each employee must obtain a separate username and password to allow such access.  Each individual who obtains a valid and username and password under the Vendor Account  is permitted to access and use the Services pursuant to the terms of this Agreement (“Authorized User”) and it is your sole and exclusive responsibility to ensure that Authorized User’s comply with the terms of this Agreement. You agree to notify us immediately of any unauthorized access to or use of your, or an Authorized User’s, username or password or any other breach of security. You also agree to ensure that you and each Authorized User exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

We have the right to disable any user name, password, or other identifier, whether chosen by you, an Authorized User, or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of this Agreement.

Permitted Use of the Services.

You and your Authorized Users are granted the limited right to access and use the Services strictly in accordance with this Agreement.

Prohibited Uses.

You and your Authorized Users may use the Services only for lawful purposes and in accordance with this Agreement and each shall not  use the Services:

Additionally, you and Authorized Users shall not:

Content Standards.

These content standards apply to Vendor Communications and the Services. Vendor Communications must comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, Vendor Communications must not:

Reservation of Rights.

You acknowledge and agree that the Services are provided under license, and not sold, to you. You do not acquire any ownership interest in the Services under this Agreement, or any other rights thereto other than to use the Services in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company, its licensors, and service providers reserve and shall retain their entire right, title and interest in and to the Services, including all copyrights, trademarks, and other intellectual property rights therein, or relating thereto.

Suspension.

Notwithstanding anything to the contrary in this Agreement, we may temporarily suspend your or your Authorized User’s access to any portion or all of the Services if we determine, in our sole discretion, that your use of the Services is in violation of this Agreement.

Geographic Restrictions.

The Services originate, offered and are provided in the state of Florida in the United States. You acknowledge that you may not be able to access all or some of the Services outside of the United States and that access thereto may not be legal in certain countries. If you access the Services from outside the United States, you are responsible for compliance with local laws.

Updates.

We may from time to time, in our sole discretion, develop and provide updates, which may include upgrades, bug fixes, patches, other error corrections and/or new features to the Services (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality of the Services which may be completed in our sole and exclusive discretion and without any liability to you. You agree that the we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.

Third-Party Materials.

The Services may display, include or make available third-party content or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that we are not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof.  We do not assume and will not have any liability or responsibility to you 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.

Term and Termination.

This Agreement commence when you begin your use of the Services and shall continue in effect until terminated by you or the Company as set forth herein. You may terminate this Agreement by discontinuing your use of the Services and emailing us at support@topssoft.com indicating your desire to discontinue such use.

The Company may terminate this Agreement at any time without notice if: (a) Company ceases to support or offer the Services, which may do in its sole and exclusive discretion; (b) you violate any terms of this Agreement; or (c) you are no longer a vendor of a Customer.

Upon termination, all rights granted to you for the use of the Services shall terminate; and you must cease all use of the Services.

Termination will not limit any of the Company’s rights or remedies at law or in equity.

Disclaimer of Warranties.

SERVICES ARE PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF, OR LIMITATIONS ON, IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE § 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF NOT KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”

Limitation of Liability.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY FOR ANY DAMAGES, INCLUDING CONSEQUENTIAL, INDIRECT, LOSS OF PROFITS, LOSS OF REVENUES, AND PUNITIVE DAMAGES, ARISING FROM, OR RELATED TO, YOUR USE OF, OR INABILITY TO USE, THE SERVICES.  THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PERSONAL INJURY, OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

COMPANY’S TOTAL MAXIMUM LIABILITY FOR ANY CLAIMS ARISING FROM YOUR USE OR ACCESS OF THE SERVICES SHALL NOT EXCEED THE GREATER OF $500 OR THE TOTAL SERVICES FEES COLLECTED BY COMPANY FROM YOU DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE WHEN THE CONDUCT GIVING RISE TO THE CLAIM FIRST OCCURRED.

Indemnification.

You agree to indemnify, defend, and hold harmless the Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees, arising from, or relating to, your use or misuse of the Services or your breach of this Agreement.  Your indemnification obligations shall survive the expiration or termination of this Agreement.

Dispute Resolution.

Summary.

Most of your concerns can be resolved quickly simply by reaching out to us atsupport@topssoft.com.  In the event that we are unable to resolve your complaint, or we are unable to resolve our dispute with you, then we each agree to resolve all disputes through binding arbitration or small claims court instead of through the traditional court system.  Arbitration is more informal than a traditional lawsuit brought in court, because it is before a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts.  Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted.

Arbitration.

Subject the provisions of this Section, if you access or use any of our Services, then you and the Company hereby agree that any and all past, present and future disputes, claims, actions or other controversies arising out of, or relating in any way to, our Services or this Agreement,  except any dispute relating to the enforcement of the Company’s intellectual property rights or your indemnification obligations under this Agreement, and without limiting our and your rights to resolve disputes using various informal dispute resolutions  (each, a “Dispute”) will be determined exclusively on an individual (non-class) basis by binding arbitration before a single neutral arbitrator applying the American Arbitration Association’s rules for commercial arbitration, with the final hearing to occur exclusively in Pinellas County, Florida, or within the scope of its jurisdiction, in small claims court located in Pinellas County, Florida. YOU HEREBY ACKNOWLEDGE YOUR UNDERSTANDING AND AGREE THAT BY ACCEPTING THIS AGREEMENT AND THE ARBITRATION PROVISIONS HEREIN, THE FEDERAL ARBITRATION ACT (FAA) WILL GOVERN THE INTERPRETATION AND ENFORCEMENT OF THIS PROVISION, AND THAT YOU AND THE COMPANY AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND THE COMPANY ARE EACH HEREBY IRREVOCABLY WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN ANY CLASS OR REPRESENTATIVE ACTION IN CONNECTION WITH ANY DISPUTE BETWEEN US. YOU AND THE COMPANY ALSO AGREE THAT ANY ARBITRATION CONDUCTED HEREUNDER WILL BE BROUGHT ONLY ON AN INDIVIDUAL BASIS AND WILL NOT BE BROUGHT OR PROCEED ON BEHALF OF A CLASS OR IN A REPRESENTATIVE CAPACITY. A “Dispute” includes those based in contract, any applicable current or future federal, state, local or international law, statute, rule, or government or quasi-government order or action or regulation, tort (including fraud, misrepresentation, fraudulent inducement, negligence, willful misconduct or any other intentional tort) or any other legal or equitable theory. The meaning of “Dispute” is to be interpreted to have the broadest possible meaning permitted by law, and will only be modified to the extent necessary to be legal, binding and no longer in conflict with any law, including violation of our Privacy Policy or Terms of Use. The substantive law to be applied by the arbitrator during arbitration shall be Florida law without regard to any conflicts of law.

Procedure for Filing Claim.

If we are unable to resolve a Dispute, then the party asserting the Dispute shall provide the other party with written notice of its intent to proceed with arbitration, and provide sufficient detail of a party’s claim to put the other party on notice of the wrongs being asserted  (“Demand for Arbitration”) that shall be sent to the Company at support@topssoft.com, if you are asserting a claim against the Company, or if Company is asserting a claim against to you then its shall send notice to the email address provided in Vendor Account.  Upon receipt of the Demand for Arbitration, the parties shall work together to identify and select a single neutral arbitrator to govern the proceedings from the United States District Court Middle District of Florida’s list of certified mediators found at https://www.flmd.uscourts.gov/mediation-program.  The arbitrator shall apply the American Arbitration Association’s Rules for Commercial Arbitration (found at www.adr.org) for each arbitration, but the arbitration shall not be conducted before the American Arbitrations Association.   Subject only to the limited exceptions expressly set forth in this Section, the arbitrator, and not any federal, state or local court, agency or other authority, will have the exclusive authority to resolve any and all Disputes, including issues relating to the scope, interpretation, applicability and enforceability of this arbitration agreement.   The sole and exclusive locale for the arbitration shall be Pinellas County, Florida.    If either party asserts a claim in small claims court, then neither party is required to provide a Demand for Arbitration.

Class Action Waiver.

NEITHER YOU NOR WE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY IN CONNECTION WITH ANY DISPUTE (AS DEFINED ABOVE). Further, unless both you and the Company specifically agree otherwise in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that individual party’s individual claim.

The dispute resolution, binding arbitration and class action waiver agreements and provisions will survive the expiration or termination of this Agreement.

Reliance on Information Posted.

The information presented on or through the Services is made available solely for general informational purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other user of the Services or by anyone who may be informed of any of its contents.

Entire Agreement.

The Agreement constitute the entire Agreement between you and the Company with respect to the Services, and supersedes all prior or contemporaneous understandings and terms, whether written or oral, with respect to same.

Notices.

All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) must be in writing and sent to support@topssoft.com if sent to the Company or the Vendor’s email address included in Vendor’s Account.  All emails under this Section shall be sent with a request for confirmation of delivery and read receipt requested.

Force Majeure.

In no event shall we be liable to you, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement if and to the extent such failure or delay is caused by any circumstances beyond our reasonable control, including, but not limited to acts of God, virus, pandemic, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo, quarantines, and national or state emergencies.

Modification; Waiver.

You are not permitted to modify or amend the terms of this Agreement without our prior written consent. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

Severability.

If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

Assignment.

You may not assign any of your rights or delegate any of your obligations hereunder, in each case, whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of the Company. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon, and inures to the benefit of, the Parties and their respective permitted successors and assigns.

No Third-Party Beneficiaries; Claim Limitation.

You agree that, except as otherwise expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement. You agree that regardless of any law to the contrary, any claim, Dispute or cause of action by you arising out of, or related to, our Services pursuant this Agreement must be filed within one (1) year following the date on which such claim, Dispute or cause of action arose; and if not filed within such one (1) year period, then you hereby irrevocably waive any and all rights to pursue such claim(s), Disputes or other cause(s) of action.