TOPS imail End User Service Agreement

Transcription

1 TOPS imail End User Service Agreement PLEASE REVIEW THIS END USER SERVICES AGREEMENT (THIS "AGREEMENT") CAREFULLY, AS IT CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU ("YOU" OR "CUSTOMER") AND TOPS Software, LLC ("TOPS" OR "WE"). YOU HAVE INITIATED USE OF TOPS imail SERVICES. IN ORDER TO USE THESE SERVICES, YOU MUST FIRST READ THIS AGREEMENT AND INDICATE YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW BY SELECTING THE "ACCEPT" BUTTON AT THE END OF THIS AGREEMENT. IF YOU DO NOT ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD CLICK THE "DO NOT ACCEPT" BUTTON AT THE END OF THIS AGREEMENT, IN WHICH CASE YOU WILL NOT BE ALLOWED TO USE THE SERVICES. THIS IS AN AGREEMENT FOR SERVICES AND YOU ARE NOT BEING GRANTED A LICENSE OR ANY OTHER RIGHTS TO ANY SOFTWARE UNDER THIS AGREEMENT. 1. Services. TOPS imail provides on demand software and services ("Services") for the electronic distribution of customer created and/or approved content to customer's list of owners, vendors and other contacts ("Recipients"). Among other things, we format and transmit the electronic content we are asked to distribute through use or our specially written software programs and a dedicated e mail server. "Customer" means any person or entity for whom the Services are designed or who uses the Services. TOPS imail assumes that its Services are used by you for business purposes. If you do not intend to use the Services for business purposes, you must contact us at to so advise and arrange for the termination of your Services. You are only authorized to use the Services for business purposes. Our customers retain and authorize TOPS imail to transmit messages and provide information to their Recipients on their behalf. In the course of providing those Services, Customers may provide us with personal information relating to their Recipients. 2. During the term of this Agreement and subject to the terms and conditions set forth herein and any guidelines, rules or operating policies that TOPS may establish and post from time to time on (the "Site"), including, without limitation TOPS imail's anti-spam policy, Privacy Policy, Prohibited Content and Commerce Statement and other polices governing the use of the Service (collectively, the "Policies", which are incorporated herein by reference), TOPS agrees to use commercially reasonable efforts to provide Customer with the Services. From time to time, without notice, TOPS may modify the terms and conditions of this Agreement and/or the Policies. All such changes shall become effective upon posting of the revised Agreement and/or Policies, as the case may be, on the Site, and Customer's use of the Services thereafter shall be subject thereto. Customer agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features, nor is it dependent upon any oral or written comments made by TOPS of any kind, including those with respect to future functionality or features. 3. Activating TOPS imail. In addition to the basic plan Services which are offered at no charge, Customer may purchase other service plans with higher e mail limits at additional cost. The TOPS imail plan may be selected in accordance with the instructions posted within TOPS Professional software (Communications Menu>Activate TOPS imail). To change your TOPS imail Plan once it is activated, you must contact TOPS Sales at Likewise, TOPS imail Plans may be customized pursuant to mutually agreed upon terms by contacting TOPS Sales at , upon the earlier of Customer s request or its selection of desired TOPS imail Plans and acceptance of this Agreement. In the event of any conflict between the

2 terms and conditions of this Agreement and any other license agreement with TOPS, the TOPS Software License Agreement shall govern, unless the parties expressly specify otherwise, in writing. 4. Free Trial Period. In the event TOPS offers to Customers a Free Trial Period and Customer elects to use the Services on a trial basis, Customer will not be billed for such use for a period of thirty (30) days commencing on the date Customer accepts this Agreement (as indicated below) (the "Trial Period"). During the Trial Period, Customer may use the Services subject to the subscriber limits posted on the Site. The subscriber limits for the Trial Period are subject to change at any time without prior notice. Once Customer completes its free trial period or exceeds the free subscriber limit (the daily or monthly e mail limit), whichever occurs first, the Trial Period will terminate. Upon such termination, Customer may purchase a monthly or annual subscription for the Services. Customer's access to the Services will be disabled until payment is received and accepted. 5. TOPS imail Plans. Pricing for the Services is based upon the TOPS imail plan Customer chooses to purchase as indicated in the Service Order or a negotiated Service Order. The Service Order is that portion of the web page that records the Customer's TOPS imail Plan selection, subscription fee, payment method and other account information. If the usage of the TOPS imail Services exceeds the subscriber plan selected, which means the customer has reached either the daily limit or monthly limit of e mails allowed under their selected plan or the customer has exceeded the bandwith allowed under their selected plan, then Customer's ability to send outgoing e mail using the Service will be suspended until either the Customer upgrades to a higher subscriber plan at least equal to the number of suspended outgoing e mails or until the next period (period being either the next day for the daily limit or next month for the monthly limit) commences. Customer's subscriber plan level may be upgraded at any time during the term of this Agreement. For downgrades in subscribed plan levels, customer must contact their TOPS Account Executive at for approval. The total number of s per day or per month that may be sent by Customer using the Service cannot exceed the subscriber plan limits. For example, if a Customer's subscriber plan level limit is 500 per day and 5,000 per month, Customer can send up to these maximum s either daily or monthly. If Customer requires a higher daily or monthly limit than Customer's subscriber plan allows, Customer should contact TOPS sales group at sales@topssoft.com or Fees and Payment. In consideration for the Services to be provided by TOPS for the Customer s use of TOPS imail, Customer agrees to pay the monthly subscription fees set forth in the Service Order (the "Subscription Fees"). Paid Subscription Fees are non-refundable. Customer acknowledges that from time to time, delivery of messages sent using the Services may be blocked or prevented from reaching recipients because of circumstances beyond TOPS control, such as by recipient s spam filters, fire walls, etc. Customer's payment obligation set forth herein continues regardless of whether delivery of such messages is prevented or blocked for any reason. In consideration for the TOPS imail Plan Services provided by TOPS, Customer agrees to pay the Subscription Fees for the plan selected as setup forth in their Service Order page posted at or as otherwise provided to Customer by TOPS (hereafter referred to as the "Fees ). Payments of Fees, if any, will be billed monthly and Customer shall pay them by electronic means either through use of a credit card, e check or direct debit against Customer s bank account. If the Fees are taxable in any jurisdiction then the Fees shall include all applicable, federal, state and local taxes payable with respect to this Agreement.

3 In the event that a customer s electronic payment fails for any reason, including, but not limited to, Customer s credit card limits are exceeded, there are insufficient funds in Customer s bank account, the Customer has blocked the subscription payment or payment is not received by TOPS for any reason whatsoever for a period, then TOPS may immediately discontinue, terminate or suspend the TOPS imail Services until such time as the past due payment(s) are received from the Customer. Despite any such discontinuation or suspension, Customer acknowledges and agrees that it will be required to pay the Subscription Fees for the remainder of the term of this Agreement. Any late payment not received by TOPS imail by the billing date may be subject, at TOPS sole discretion, to a late fee equal to 1.5% (or the maximum rate permitted by law, whichever is lower) of the amount then due, for each month overdue. For amounts outstanding after sixty (60) days from the billing date, Customer shall be responsible for and agrees to pay reasonable costs and expenses of collection, including, but not limited to court and attorneys' fees, filing fees, transcript fees and expenses. From time to time, and at any time, TOPS may require reasonable credit guarantees before continuing its provision of the TOPS imail Services hereunder. 7. Customers' Recipient Data. In offering the TOPS imail Services, we may temporarily store personal information about Recipients. TOPS imail will not own any data, information or material that any of its Customers submit to TOPS imail in the course of its provision of the TOPS imail Services ("Customers' Recipient Data"). Customers are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customers' Recipient Data, and Customers are responsible for maintaining, securing and storing all Customers' Recipient Data in accordance with applicable law. TOPS imail will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customers' Recipient Data. 8. Customer Information. TOPS imail collects certain personal and business-related information about its Customers in order to provide the Services (the "Customer Information"). If you have provided your contact information, TOPS may contact you for marketing purposes by various means, including but not limited to regular mail, or telephone. When you activate a TOPS imail account, you give your express consent to receive marketing communications via direct mail, (at the address you provided when activating your account), telephone (at the number you provided when activating your account), pre-recorded messages (at the number you provided when activating your account), text messages (if you provided a wireless telephone number), instant messages or other communications methods. 9. Disclosures of Customer Information. In addition to the uses of Customer Information set forth in Section 8, Customer agrees that TOPS may use the Customer Information in connection with its provision of the TOPS imail Services. If Customer purchased the Services as a result of the marketing efforts of a TOPS marketing partner, Customer agrees that TOPS may disclose the Customer Information to such marketing partner. Notwithstanding the foregoing, TOPS will not provide any Customer Information to any third party without Customer's authorization (including any authorizations in this Agreement) and will use reasonable efforts to prohibit any third party that receives any such Customer Information from selling or redistributing such Customer Information without Customer's authorization. 10. Passwords. If TOPS creates passwords or other security measures to protect Customer s Information or to access the TOPS imail Services, then TOPS will send to its Customer's designated address

4 (designated by Customer at the time an account is established), information such as user-ids and/or passwords which will enable Customer to access the Services (the "Passwords"). If such Passwords are instituted by TOPS, Customer agrees to maintain the Passwords in strict confidence and not to provide the Passwords to any third party. Customer will notify TOPS promptly if there is a loss or compromise of any Passwords and Customer will be solely responsible for all actions and fees incurred as a result of such incident resulting from the Customer's negligence or intentional misconduct. Any unauthorized use of user IDs or Passwords by Customer will constitute a material breach of this Agreement. 11. Proprietary Rights. This is an agreement for services and Customer is not granted any license or other ownership rights hereunder. All software embedded in the Services (the "Software"), and the Services, are and shall remain the sole and exclusive property of TOPS. Accordingly, Customer acknowledges that TOPS owns all right, title and interest in and to the Software and the Services, including, without limitation, all United States and international patent rights, copyrights, trademark rights, trade secret rights, and all other proprietary rights pertaining thereto. Except as expressly granted in this Agreement, Customer will not have or acquire any rights or interest in or to the Software or the Services. Customer acknowledges that the Software contains proprietary information and trade secrets of TOPS. Customer will not take any actions inconsistent with TOPS ownership of each of TOPS rights in and to the Software. Customer agrees that Customer will not directly or indirectly: (i) assign, disclose, distribute, license, sublicense, transfer, sell, rent, lease, time share, grant a security interest in, or otherwise transfer any rights in or to the Software, or make the Software available to third parties except as authorized by this Agreement; (ii) modify, translate, reverse engineer, decompile or disassemble the Software for any purpose, including without limitation, the creation of derivative works or similar products; (iii) upload, link to or post any portion of the Software on a bulletin board, intranet, extranet or web site; (iv) use or distribute the Software in violation of any applicable laws, regulations or export restrictions; or (v) possess or use the Software in any format other than machine-readable format. All rights in the Software not explicitly granted herein, are reserved by TOPS. If you are using the Services in any country within the European Union, the prohibitions set forth herein will not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs. 12. Use of Services. Customer acknowledges and agrees that it will use the Services only for electronic communication to homeowners, renters, vendors and other contacts who have Opted in to e mail communication from their community and/or management company. The term "Opted in," means the recipient as agreed either verbally or in writing or through a web site to received communications by e mail to the e mail address(s) they designate. For the avoidance of doubt, the communication authorized by the recipient does not include, among other things, the right to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or in violation of third party privacy rights; (iii) send marketing or sales messages to any purchased ( ) lists, distribution lists, newsgroups, or spam addresses; or (iv) send or store material containing malicious code, including, without limitation, software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. Customer agrees to report immediately to TOPS, and to use best efforts to stop immediately, any violation of the terms and conditions set forth in this Section 12 or any of the Policies. 13. No Tampering. If a recipient indicates that they no longer wish to receive e mail communication from the community and/or management company, Customer shall immediately comply with the request by

5 changing the e mail Opt in settings stored in TOPS Software. Further, each such message may contain an automatic identifying footer such as "Powered by TOPS imail." Customer agrees that it will not remove, disable or attempt to remove or disable such footer. 14. Confidential Information. TOPS and Customer, as a Receiving Party (as defined below), will hold confidential, not use except as otherwise authorized herein, and protect from disclosure to unauthorized third parties the Confidential Information (as defined below) of the Disclosing Party (as defined below). In the event that the Receiving Party is required by law to disclose Confidential Information of the Disclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice of such pending disclosure and act reasonably to allow the Disclosing Party the maximum time available to take any necessary action to protect its legal rights.. For purposes hereof, "Confidential Information" means any information disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") that relates to such Disclosing Party's business affairs, internal operations, personnel, financial matters, technology, research and development, product plans or offerings, markets, or know-how. Confidential Information will not include information that: (i) was publicly available, or that subsequently becomes publicly available, except by wrongful disclosure hereunder by the Receiving Party; (ii) was in the Receiving Party's possession prior to receipt of the same from the Disclosing Party, as evidenced by the Receiving Party's prior written records; (iii) was received from a third party who was not known by the Receiving Party to be under any obligation of confidentiality with respect to such information; (iv) can be proven by competent evidence to have been independently developed by the Receiving Party; (v) is furnished by the Disclosing Party to a third party without restriction on the third party's right of disclosure; (vi) is approved in writing for release by the Disclosing Party; or (vii) is required to be disclosed by order of court or law. 15. Representations, Warranties and Covenants. Customer represents, warrants and covenants to TOPS that: (i) it is a company or organization duly organized and validly existing in good standing under the laws of the state in which it was organized; (ii) it has full power and authority to enter into this Agreement, which, upon its execution hereof, will constitute a legal, valid and binding obligation enforceable against it in accordance with the terms hereof; (iii) all information provided by it in the Service Order and otherwise during the term of this Agreement, is and will be truthful and accurate; (iv) its use of the TOPS imail Services will at all times be in accordance with the terms and conditions of this Agreement, the Policies and all applicable laws, rules and regulations; and (v) it is not directly or indirectly (as an owner, strategic partner or otherwise) engaged in any business relationship or activity that competes with the TOPS imail Services. 16. Disclaimer of Warranties. THE TOPS imail SERVICES ARE PROVIDED "AS IS" AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TOPS AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, LICENSORS, DISTRIBUTORS, DEALERS AND SUPPLIERS (COLLECTIVELY, THE "REPRESENTATIVES") DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT, WITH RESPECT TO THE TOPS imail SERVICES. TOPS AND THE REPRESENTATIVES DO NOT WARRANT THAT THE SERVICES WILL BE WITHOUT INTERRUPTION OR TROUBLE-FREE AND THAT E MAILED MESSAGES WILL REACH ALL RECIPIENTS OR BE READ BY RECIPIENTS. LIKEWISE, TOPS AND THE REPRESENTATIVES DO NOT WARRANT THAT THE USE OF TOPS IMAIL SERVICES WILL SATISFY STATE OR FEDERAL LAWS RELATING TO THE SENDING OF REQUIRED NOTICES BY E MAIL

6 RATHER THAN SENDING REQUIRED NOTICES USING THE US POSTAL SERVICE. TOPS ALSO DOES NOT GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE TOPS imail SERVICES. 17. Limitation of Liability. IN NO EVENT WILL TOPS OR ANY INDIVDUAL REPRESENTATIVE (AS DEFINED ABOVE) BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE TOPS MAIL SERVICES OR TO THE PERFORMANCE OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS, EVEN IF TOPS OR ITS REPRESENTATIVES HAVE BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FURTHER, IN NO EVENT WILL TOPS AND THE REPRESENTATIVES' TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR CLAIMS, LOSSES, OR DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, INDEMNITY OR OTHERWISE, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT OR THE SERVICES, EXCEED THE ACTUAL FEES CUSTOMER PAID TO TOPS FOR THE TOPS imail SERVICES AS OF THE DATE OF THE CLAIM, LOSS, OR DAMAGE. In the event of any failure, or TOPS nonprovision, of the TOPS imail Services, Customer's sole and exclusive remedy shall be for TOPS to use commercially reasonable efforts to repair or provide the TOPS imail Services. 18. Indemnification. Customer agrees to indemnify, defend and hold harmless TOPS, and the Representatives, and its and/or their respective affiliates, officers, directors, stockholders, employees, consultants, representatives and agents from any and all claims, liability, damages and/or costs (including, but not limited to, reasonable attorneys' fees) arising from Customer's breach of this Agreement, negligence or intentional misconduct, Customer's violation of any applicable law, including the federal CAN SPAM Act, 15 U.S.C , this Agreement or the Policies, Customer's breach of any of its representations, warranties or covenants set forth herein, Customer's infringement of any intellectual property rights or other rights of any person or entity or Customer s use of the TOPS imail Services in any way. 19. Term and Termination. The TOPS imail Service will continue in effect unless cancelled by you or terminated by us. This Agreement will remain in effect for as long as you are subscribed to the service and you will be continue to be billed for the TOPS imail Plan until cancelled or terminated. TOPS imail's billing cycles are on a calendar month basis. If Customer desires to cancel this Agreement, such a request can only be made via phone by calling TOPS Sales Department at Monday to Friday between the hours of 9:00 AM to 5:30 PM EST. TOPS may terminate this Agreement at any time if Customer does not abide by the terms of this Agreement, including the provision for timely payment of fees. In the event of any suspected violation of the terms, conditions or restrictions set forth in this Agreement, TOPS may immediately disable Customer's access to the TOPS imail Services and suspend its provision thereof. Any default in the performance of any of Customer's obligations hereunder, shall be considered a material breach of this Agreement and shall entitle TOPS to terminate this Agreement immediately, which means the termination of the TOPS imail Services, and to pursue all available equitable and legal remedies. Upon cancellation or termination of this Agreement, Customer is still obligated to pay for the service through the end of the month during which the cancellation or termination is effective. Customer agrees that time is of the essence in performing its duties pursuant to this Agreement.

7 20. Governing Law. This Agreement will be governed by the laws of the State of Maryland, without regard to any choice of law provisions thereof. The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods. 21. Arbitration. Any dispute or controversy arising under, out of, or in connection with this Agreement shall be resolved by binding arbitration under the commercial rules of the American Arbitration Association before a single arbitrator. Any such arbitration shall be conducted in the Montgomery County, in the State of Maryland. Judgment upon any award may be entered in any court of competent jurisdiction. The arbitrator shall be designated by mutual agreement of the parties or, if the parties cannot agree on an arbitrator within ten (10) days after a request for arbitration hereunder, each party shall designate one (1) arbitrator and the arbitrators so designated shall designate a third arbitrator who shall conduct the arbitration. The decision of the arbitrator shall be binding and conclusive upon the parties. Notwithstanding the foregoing, TOPS shall have the right to seek injunctive relief or other equitable or legal remedies in a court of competent jurisdiction in the State of Maryland, to which jurisdiction, for such purpose, Customer hereby irrevocably consents. In no event will the findings of any arbitrator under this section change the terms and conditions of this Agreement relative to the Disclaimer of Warranties, Limitation of Liability or Indemnification. 22. Relationship. This Agreement does not create a partnership, joint venture or agency relationship between TOPS and Customer. Customer does not have any right, power, or authority to act as a legal representative of TOPS. 23. Assignment. Customer may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of TOPS. Any such transfer, assignment, sublicense or delegation without consent will be null and void. 24. Severability. In the event that a court of competent jurisdiction determines that any portion of this Agreement is illegal, invalid or unenforceable, such portion will not affect or impair the legality, validity or enforceability of any other provisions of this Agreement. 25. Survival. The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement, will survive the completion of performance and termination of this Agreement. This provision specifically includes, but is not limited to, the provisions related to the Disclaimer of Warranties, Limitation of Liability or Indemnification 26. Entire Agreement. This Agreement and the published TOPS imail Policies constitute the entire agreement and understanding between TOPS and Customer relative to the Customer s use of the TOPS imail Services and supersede all other documents, proposals, oral or written, between the TOPS and Customer, except for any prior license or service agreements between the parties, which will continue in dull effect according to its terms following the execution, performance and termination of this Agreement.

8 27. No Waivers. TOPS failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default. 28. Notice. TOPS may provide Customer with general notice by electronic mail to Customer's address of record, or by written communication sent by first class mail or pre-paid post to Customer's address of record, or to such other address designated by Customer and communicated to TOPS in accordance with the notice delivery provisions of this Section 28. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing if sent by first class mail or pre-paid post, or twelve (12) hours after sending if sent by electronic mail. Except as otherwise provided herein, Customer must give notice to TOPS (such notice shall be deemed given when received by TOPS) by using one of the following means: 1) letter sent by confirmed facsimile to TOPS at the following fax number: (301) ; 2) letter delivered by a nationally recognized overnight delivery service; or 3) by first class postage prepaid mail to TOPS at the following address: TOPS Software LLC Attn: Administration 364C Christopher Avenue Gaithersburg, MD Customer must adhere to the terms and conditions set forth in Section 19 above to provide TOPS with notice of its intention to terminate this Agreement. Either Customer or TOPS may designate a different mailing address for notice delivery by providing the other party with such different address in accordance with the notice delivery provisions of this Section Consent to Use of Electronic Signatures and Records. As a convenience and courtesy to you, TOPS provides access to its TOPS imail Services online which may require you to enter into agreements or receive notices electronically. Accordingly, you acknowledge and agree that by clicking "I Agree" or "I Accept" anywhere on the Site: (a) you agree to conduct electronically the particular transaction into which you thereby enter including, without limitation, entering into this Agreement; (b) you have read and understand the electronic copy of electronic contracts, notices and records, including, without limitation, this Agreement, the Policies and any amendments hereto or thereto; (c) you agree to, and intend to be bound by, the terms of the particular transaction into which you thereby enter; (d) you are capable of printing or storing a copy of electronic records of transactions into which you enter including, without limitation, this Agreement and any amendments hereto;

9 (e) you agree to receive electronically information about the TOPS imail Services and other electronic records into which you thereby enter including, without limitation, this Agreement. If you wish to withdraw this consent, please contact TOPS Sales Department at , in which case TOPS shall have the right to terminate your use of the TOPS imail Services. 30. Miscellaneous. Except as otherwise expressly set forth herein, this Agreement may be amended or modified only by TOPS and may not be modified by course of conduct. The section headings used herein are for convenience only and will not be given any legal meaning. This Agreement is made for the benefit of the parties only and there are no intended third party beneficiaries.