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Updated: 01 October 2022
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE TOPO SYSTEMS AND/OR THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY, THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE TOPO SYSTEMS AND/OR THE SERVICES.
Modification:
TOPO reserves the right to, at its sole discretion, modify these Terms at any time without prior notice and consent. If TOPO modifies these Terms, it will post the modification via the TOPO Systems or otherwise provide you with notice of the modification. By continuing to access or use the TOPO Systems and/or the Services after TOPO has posted a modification via the TOPO Systems and/or has provided you with notice of the modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the TOPO Systems and the Services.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms, the following definitions and rules of interpretation apply unless otherwise defined:
(i) Affiliates means, in relation to TOPO, (i) any subsidiary of TOPO; (ii)any subsidiary undertaking of TOPO; (iii) any holding company of TOPO; (iv) any parent undertaking for the time being of TOPO; and (v) any group undertaking for the time being of TOPO;
(ii) Application means an application for Devices through which a User may access and use the TOPO Systems and/or the Services;
(iii) Authorisation Form is as defined under clause 3.2 of these Terms, and Authorisation Forms shall be construed accordingly;
(iv) Collective Content means, collectively the User Content and the TOPO Content;
(v) Confidential Information includes, but is not limited to, all information in relation to a Party which is not publicly known relating the business, operation methods, standards, policies, procedures, practices, finances, technology, trade secrets and any other commercially sensitive information of either Party (and in relation to TOPO, including that of its Affiliates, its agents and contracting parties) regardless of its nature;
(vi) Content means text, graphics, images, software (excluding the TOPO Systems), audio, video, information and other materials;
(vii) Customer is as defined under clause 3.1 of these Terms, and Customers shall be construed accordingly;
(viii) Customer Account is as defined under clause 3.1 of these Terms, and Customer Accounts shall be construed accordingly;
(ix) Designated User is as defined under clause 3.2 of these Terms, and Designated Users shall be construed accordingly;
(x) Designated User Account is as defined under clause 3.2 of these Terms, and Designated User Accounts shall be construed accordingly;
(xi) Devices means electronic (including computers and laptops) and mobile devices (all of which equipped with operating systems which is either iOS (latest two (2) major versions from time to time) and/or Android (version 5 or newer)) on which the relevant Users may access and use the TOPO Systems;
(xii) Enforcement Action is as defined under clause 12.5 of these Terms;
(xiii) Error means a material and reproducible failure of the TOPO Systems to function substantially in conformity with the Specifications;
(xiv) Fees means any fees, payments, reimbursements and compensations payable by a Customer to TOPO pursuant to the relevant Specific Terms;
(xv) General Support is as defined under clause 9.2 of these Terms;
(xvi) Hong Kong means Hong Kong Special Administrative Region of the People’s Republic of China;
(xvii) Hosted TOPO System means the TOPO Software hosted by TOPO on a specific server whereby the Users may access the TOPO Software over a public or private network through the Application and/or the Website;
(xviii) Initial Licence Term is as defined under clause 5.1 of these Terms;
(xix) Intellectual Property Rights includes, in relation to the TOPO Systems, all copyright and other intellectual property rights, howsoever arising and in whatever media, whether registered or not registered, including but not limited to patents, design rights, trade marks, service marks, applications or rights to apply for any of the foregoing, database rights, Know-How, trade or business name, rights in confidential information, goodwill, and other similar rights existing in any part of the world;
(xx) Know-How means all know-how, experience, data, technical and commercial information relating to the TOPO Systems and/or the Services, including but not limited to mode of operation;
(xxi) Licence means, in relation to each Customer, the licence granted by TOPO to such Customer and its Designated Users pursuant to clause 4 of these Terms;
(xxii) Licence Term means the term of the Licence as specified in clause 5 of these Terms;
(xxiii) On-Site TOPO System means the TOPO Software installed on local server(s) at the facility(ies) designated by the relevant Customer (the details of designated facility(ies) are set out in the relevant Specific Terms), and On-Site TOPO Systems shall be construed accordingly;
(xxiv) Party means, in relation to a Licence, TOPO and the relevant Customer and Parties shall be construed accordingly;
(xxv) Passwords is as defined under clause 3.5 of these Terms;
(xxvi) Privacy Policy means the privacy policy of TOPO available at the Website, as updated by TOPO from time to time;
(xxvii) Registration Site refers to such website which TOPO provides for the purpose of registration and/or setting up of a User Account;
(xxviii) Services is as defined under clause 2.2 of these Terms;
(xxix) Specific Terms means, in relation to each Customer, a set of specific commercial terms as agreed by TOPO and such Customer in writing, as may be amended or varied from time to time in accordance with these Terms;
(xxx) Specifications means the functional and operational specifications of the TOPO Software as set out in schedule 1 to these Terms;
(xxxi) Tax means all forms of taxation, withholdings, duties, imposts, levies, social security contributions and rates imposed, assessed or enforced by any local, municipal, governmental, state, federal or other body or authority in Hong Kong or elsewhere, in all cases being in the nature of taxation, and any related interest, penalty, surcharge or fine;
(xxxii) Terms means these terms and conditions (including the Privacy Policy), as revised, modified or otherwise updated by TOPO from time to time;
(xxxiii) TOPO is as defined under clause 2.1 of these Terms;
(xxxiv) TOPO Content means all Content that TOPO makes available through the TOPO Systems and/or the Services, including any Content licensed from a third party, but excluding any User Content;
(xxxv) TOPO Software means the software of which Specifications are as set out in schedule 1 to these Terms;
(xxxvi) TOPO Systems means collectively, the Hosted TOPO System and the On-Site TOPO Systems;
(xxxvii) User Accounts means collectively, the Customer Accounts and the Designated User Accounts, and User Account shall be construed accordingly;
(xxxviii) User Content means all Content that any User posts, uploads, publishes, submits, transmits or otherwise made available to or via the TOPO Systems;
(xxxix) Users means collectively, the Customers and the Designated Users, and User shall be construed accordingly; and
(xl) Website refers to the website of TOPO.
1.2 A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
1.3 Words importing one gender shall be treated as importing any gender, words importing individuals shall be treated as importing persons and vice versa, words importing the singular shall be treated as importing the plural and vice versa, and words importing the whole shall be treated as including a reference to any part thereof.
1.4 The words/phrases subsidiary , subsidiary undertaking , holding company and parent undertaking have the meanings given to them in the Companies Ordinance (Chapter 622 of the Laws of Hong Kong).
2. TERMS OF SERVICES
2.1 The contracting partner in relation to the use of the TOPO Systems and the Services is TOPO SOLUTIONS LIMITED ( TOPO ), a private limited liability company incorporated and having its registered office in Hong Kong.
2.2 TOPO provides an online platform service (the Services ) that facilitates the Users to collect and organize information through the TOPO Systems by deploying smart data entry forms to the Devices or otherwise. These Terms govern the access to and use of the TOPO Systems, the Services and/or the Collective Content. Failure to use the TOPO Systems and/or the Services in accordance with these Terms may subject you to civil and criminal liabilities.
3. USER REGISTRATION, SUSPENSION AND TERMINATION
User registration
3.1 A person or an entity becomes a customer ( Customer ) of TOPO upon (i) entering into Specific Terms with TOPO; and (ii) successful registration of a customer account (the Customer Account ) via the Registration Site or otherwise.
3.2 Upon successful registration of a Customer Account, each Customer may, in accordance with the relevant Specific Terms, submit an order to TOPO to designate such person(s) or entity(ies) to gain access to the TOPO Systems under its Customer Account. Each such designated person or entity shall become a designated user ( Designated User ) of TOPO upon either (i) successful registration of a designated user account (the Designated User Account ) respectively via the Registration Site or otherwise; or (ii) successful completion of a limited-access authorisation form (content of which to be agreed by TOPO from time to time) (the Authorisation Form ).
3.3 Each Customer understands and agrees that the Licence granted to it and each of its Designated Users is personal and non-transferrable.
Information provided in the registration process
3.4 Information provided in the registration process of relevant User Accounts and the relevant Authorisation Forms (as applicable) must be accurate, current and complete. Each User further undertakes to update such information to keep it accurate, updated and complete at all times during the Licence Term.
Safeguarding of User access
3.5 Each User undertakes to: (i) take all reasonable steps to safeguard and not to disclose to any third party its unique identifications, digital certificates, access codes, passwords and other identification devices (collectively, the Passwords ) relevant to its User Account and/or its access to the TOPO Systems to any third party; (ii) have in place necessary security systems and compliance procedures to prevent unauthorised access to, use or misuse of the TOPO Systems and/or the Services; and (iii) notify TOPO immediately regarding any suspected and/or actual loss of Passwords and/or unauthorised access, use or misuse of the TOPO Systems and/or the Services.
User Suspension and Termination
3.6 TOPO reserves the right to, without incurring any liability to the Users, without explanation and at any time, limit, suspend, deactivate, cancel or terminate any User Account and/or any User’s access to the TOPO Systems, the Services, its User Account and/or relevant User Content and/or any support from TOPO:
(i) with prior notice of thirty (30) calendar days, if any information provided by such User during the relevant account registration process or completion of the relevant Authorisation Form (as applicable) or thereafter proves to be fraudulent, inaccurate, outdated or incomplete; or
(ii) without prior notice, if it were to find any such User has breached any provision of these Terms and/or the Specific Terms (as applicable).
4. ACCESS TO THE TOPO SYSTEMS
Access via Hosted TOPO System
4.1 For a Customer who elects to use the Hosted TOPO System, TOPO will grant to such Customer (and its Designated Users) a non-exclusive, non-sublicensable, non-transferable, limited licence to access and use the Hosted TOPO System during the relevant Licence Term.
Access via On-Site TOPO System
4.2 For a Customer who elects to use the On-Site TOPO Systems, TOPO will grant to such Customer (and its Designated Users) a non-exclusive, non-sublicensable, non-transferable, limited licence to install the On-Site TOPO Systems and to access and use such On-Site TOPO Systems during the relevant Licence Term.
5. TERM
5.1 The initial term (the Initial Licence Term ) of a Licence shall be specified in the relevant Specific Terms or otherwise as agreed in writing between TOPO and each Customer respectively.
5.2 Subject to TOPO’s sole and absolute discretion, each Licence shall be automatically renewed for additional period(s) each equivalent to the relevant Initial Licence Term on the same terms and conditions (unless otherwise notified by TOPO in writing), save and except that either Party may, at any time prior to the commencement of any such renewal term, give prior notice of non-renewal to the other Party in writing.
6. TERMINATION
Events of Termination
6.1 Either Party may terminate the Licence with immediate effect at any time during the Licence Term upon written notice to the other Party if the other Party makes an assignment for the benefit of its creditors, files or has filed against it a petition under any bankruptcy, insolvency, reorganization or similar law, appoints or has appointed against it a trustee or receiver for any of its property or commences or has commenced against it (by resolution or otherwise) the liquidation or winding-up of its affairs.
6.2 TOPO may terminate a Licence with immediate effect at any time during the Licence Term if the relevant Customer is in breach of clauses 7.3 and/or 7.4 of these Terms and fails to remedy such breach by paying to TOPO the relevant amount of outstanding Fees and any interest accrued thereon within thirty (30) calendar days from the date of the invoice of the relevant Fees.
6.3 TOPO may terminate a Licence with immediate effect at any time during the Licence Term if TOPO reasonably determines that the relevant Customer and/or any of its Designated Users is/are in material breach of any provision of these Terms (save and except for clauses 7.3 and 7.4 of these Terms) and/or the Specific Terms (as applicable) save and except where such breach (if considered by TOPO) to be capable of being remedied is not remedied to the reasonable satisfaction of TOPO, then within thirty (30) calendar days from the date of a written notice given by TOPO to the defaulting Customer requesting for remedy.
6.4 A Customer or any of its Designated Users may terminate a Licence with immediate effect at any time during the Licence Term if TOPO is in material breach of its obligations under clause 9 of these Terms and fails to remedy such breach within thirty (30) calendar days from the date of a written notice given to TOPO by the Customer or any of its Designated Users requesting for remedy.
6.5 A Licence shall terminate at the expiration of the remaining Licence Term where either Party gives prior notice of non-renewal to the other Party in writing.
Return of Information by Users to TOPO upon Termination
6.6 Upon termination of a Licence, the relevant Customer shall (and shall procure all its Designated Users to) forthwith deliver to TOPO or destroy (as requested by TOPO) all books, documents, papers, materials and other information in relation to the TOPO Systems, the Services, TOPO Content, TOPO and its Affiliates (including without limitation any Confidential Information) which may then be in possession of such Customer and/or its Designated Users or under the power or control of such Customer and/or its Designated Users.
Preservation of Rights and Surviving Provisions
6.7 The termination of a Licence pursuant to clause 6 of these Terms does not prejudice the rights, obligations or liabilities of TOPO or the relevant Users which have accrued or arisen before termination and which remain unsatisfied.
6.8 All rights and obligations of TOPO and the relevant Users under these Terms and the Specific Terms (as applicable) shall cease to have any effect immediately upon termination of a Licence save and except for relevant clauses in these Terms and/or the Specific Terms (as applicable) which are expressed to survive termination, or which from their nature or context it is contemplated that they are to survive termination.
7. FEES AND PAYMENT
Fees
7.1 The amount of Fees payable by each Customer to TOPO will be as set out in the relevant Specific Terms. Each Customer understands and agrees that any and all Fees received by TOPO from the Customers (or the relevant Designated Users (as applicable)) pursuant to these Terms, the Specific Terms or otherwise shall not and will not be refunded under any circumstances (including without limitation, early termination of the Licence Term), save and except in the event where there is early termination of the Licence Term by the Customer (or the relevant Designated User (as applicable)) (with no fault committed or otherwise relating to or from its/their part) under clause 6.1 and/or 6.4 of these Terms, TOPO shall refund such amount (if any) calculated by reference to payment of Fees already received by TOPO from the relevant Customer for the then remaining License Term (on a pro-rata basis calculated in the number of calendar days) after deduction of any then due and/or outstanding amount payable to TOPO from the relevant Customer (and/or the relevant Designated User (as applicable)) (if any).
7.2 Each Customer understands and agrees that TOPO shall have the right to seek to adjust the amount of Fees for any renewal Licence Term by giving the Customer no less than one (1) month’s prior written notice before the commencement of any such renewal Licence Term. If TOPO does not receive the written consent of the relevant Customer prior to the commencement of any such renewal Licence Term, TOPO shall deem the Customer to have not agreed to the adjustment of Fees and shall have the right to, without incurring any liability to the relevant Users, cancel or terminate the relevant User Accounts and/or any relevant Users’ access to the TOPO Systems, the Services, relevant User Accounts and/or relevant User Content and/or any support from TOPO with immediate effect upon expiration of the then Licence Term.
Payment of Fees
7.3 TOPO will issue invoices to the Customer for payment of Fees. A Customer may make written request to have any or all of its invoices issued to a named third party whom shall make payment of relevant Fees thereunder to TOPO directly for and on behalf of the relevant Customer. TOPO shall, in its sole and absolute discretion, determine whether or not to provide its written consent to such payment arrangement, provided that each Customer understands and agrees that, in the event that any such named third party (as approved by TOPO) shall fail to timely and fully make any payment of Fees which is payable to TOPO in accordance with these Terms, any such late and/or outstanding Fees shall be fully recoverable by TOPO from such Customer. Each Customer shall (by itself or by approved third part(ies) on its behalf), within fourteen (14) calendar days from the date of the relevant invoice, make full payment to TOPO in such manner as specified in the relevant invoice.
7.4 All Fees payable by the Customer (by itself or by approved third part(ies) on its behalf) and/or its Designated Users shall be paid in full, free of any restriction or condition, without set-off or counterclaim, any transmission fee or charges and free and clear of any deduction or withholding for or on account of any Tax or otherwise.
7.5 If any Fee is not settled in full within the stipulated payment date, then interest shall accrue on the amount of such outstanding Fee from the due date of the payment to the date of actual payment at the rate of ten percent (10%) per annum.
7.6 TOPO reserves the right to, without incurring any liability to relevant Customer (or its approved third part(ies)) (and its Designated Users), suspend access to and use of the TOPO Systems and/or Services by the relevant Customer (and its Designated Users) in the event any outstanding Fees are not paid in full to TOPO within thirty (30) calendar days from the payment due date unless and until the relevant Customer (by itself or by approved third part(ies) on its behalf) settles all outstanding payment in full (together with interest accrued thereon).
8. OBLIGATIONS OF CUSTOMERS
Responsibilities of Customers relating to its Designated Users
8.1 Each Customer shall procure each of its Designated Users to comply with all applicable laws and regulations and all terms and conditions in relevant clauses in these Terms and/or the Specific Terms (as applicable) in using the TOPO Systems and/or the Services.
Maintain necessary equipment
8.2 Each Customer shall be solely responsible, at its own costs and expenses, for acquiring, installing and maintaining all connectivity equipment, hardware, software and other equipment as may be necessary for it and its Designated Users to connect to, access, and use the TOPO Systems (including, without limitation, standard computer workstations and necessary network connections).
Provision of access to server
8.3 Each Customer of an On-Site TOPO System agrees to provide prompt remote access to either production server of such Customer for the purpose of fixing an Error which occurs in an On-Site TOPO System requiring General Support and/or installing any upgrades or updates. Each such Customer acknowledges that such remote access may be subject to reasonable security procedures or hardware requirements and agrees that the cost for any such security procedures or hardware requirement shall be borne by such Customer.
Cooperation with TOPO
8.4 Each Customer agrees to cooperate with TOPO in the performance of the deployment of the TOPO Systems and the performance of any other services in relation to the TOPO Systems (including without limitation General Support and other additional support or services), including but not limited to providing all necessary data and information and assistance to TOPO from time to time.
Compliance of third party agreements
8.5 Each Customer understands and agrees that TOPO is entitled to enter into separate agreements with any third party suppliers or licensors as necessary for the performance of its obligations under these Terms and the Specific Terms (as applicable). Unless otherwise prior agreed by TOPO in writing, each Customer agrees to (and shall procure its Designated Users to) (i) comply with all terms and conditions of such third party agreements (as notified by TOPO) (including without limitation any restrictions or limitations imposed thereunder); and (ii) to indemnify TOPO from and against any and all loss or damages resulting from or relating to any non-compliance or otherwise breach of such third party agreements by itself and/or its Designated Users.
9. OBLIGATIONS OF TOPO
Maintain security features of TOPO Systems
9.1 TOPO will use its commercially reasonable endeavours to implement such security features, procedures and technologies to provide an appropriate level of protection for the User Content and other data hosted in connection with the Hosted TOPO System from unauthorised access.
Provision of support services and training services
9.2 TOPO may, at its sole and absolute discretion, provide such general technical support (details as specified in the Specific Terms) ( General Support ) at no additional Fee to the Customers (and their Designated Users) in connection with the use of the latest version of the TOPO Systems from Monday to Friday (save and except for any public holiday in Hong Kong) during 9 a.m. to 6 p.m. (Hong Kong time).
9.3 In addition to General Support, TOPO may provide additional support, training and/or professional services from time to time at such additional Fees as set out in the relevant Specific Terms or as then agreed between TOPO and the Customers in writing.
9.4 Each Customer understands and agrees that, TOPO shall not be liable to provide any technical support (including without limitation General Support and any other additional support and services):
(i) in respect of any Error resulting from:
(a) misuse of the TOPO Systems or use of the TOPO Systems in a manner not specified in the Specifications or the Specific Terms, accident, or negligence by a Customer and/or its Designated Users;
(b) use of the TOPO Systems without application of all updates available from TOPO and/or not on such Devices as specified on the relevant Specific Terms; or
(c) the unavailability of or latencies attributable to the Internet or other public telecommunications infrastructure not caused by TOPO; and/or
(ii) in the event that TOPO considers that the relevant Customer and/or any of its Designated Users is/are in material breach of any provision of these Terms and/or the Specific Terms (as applicable).
Upgrades and Updates
9.5 TOPO may make available to all Users, at no additional Fee, upgrade or update to the TOPO Systems from time to time.
9.6 A Customer may make special request for upgrade or update to the TOPO Systems to TOPO in writing from time to time. Each of the Customers understands and agrees that such special request may be subject to additional Fees to be then agreed between TOPO and the Customer in writing.
10. TOPO’S RIGHT TO DISCLOSE INFORMATION
10.1 TOPO may disclose any User Content and other information relating to the Users if it is required to do so by law, or if it believes it is reasonably necessary to do so:
(i) to comply with the applicable laws and regulations, or to comply with the order or requirement of a court, administrative agency or other governmental body; and/or
(ii) to protect the rights, property or safety of TOPO, the Users or members of the public.
10.2 Each User acknowledges that TOPO has no obligation to monitor its access to or use of the TOPO Systems and/or the Services, or to review or edit any User Content, but has the right to do so for the purpose of operating and improving the TOPO Systems and/or the Services.
10.3 TOPO reserves the right, at any time without prior notice and without incurring any liability to any User, to remove, permanently delete or disable access to any User Content that TOPO, at its sole discretion, considers to be in violation of these Terms or otherwise harmful and/or poses risks to the TOPO Systems and/or the Services.
11. WARRANTIES
11.1 TOPO warrants and undertakes to each Customer that:
(i) it has been duly incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation;
(ii) it has full power and authority to enter into and perform these Terms and the Specific Terms (as applicable) and these Terms and the Specific Terms (as applicable) constitute or will, when executed, constitute binding obligations on it;
(iii) it is not required to obtain any approval, authorisation or consent of any third party, governmental or regulatory authority that has not been obtained in order for it to enter into and perform its obligations under these Terms and the Specific Terms (as applicable);
(iv) it has the right and authority to grant to each of the Customers a Licence and all other rights granted under these Terms; and
(v) the TOPO Systems conform in all material respects with the Specifications during the applicable Licence Term.
11.2 Each of the Users undertakes and warrants to TOPO that:
(i) it has been duly incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation;
(ii) it has full power and authority to enter into and perform these Terms and the Specific Terms (as applicable) and these Terms and the Specific Terms (as applicable) constitute or will, when executed, constitute binding obligations on it;
(iii) it is not required to obtain any approval, authorisation or consent of any third party, governmental or regulatory authority that has not been obtained in order for it to enter into and perform its obligations under these Terms and the Specific Terms (as applicable); and
(iv) it has in place all security systems and compliance procedures necessary for the prevention of violation of any applicable laws and regulations, unauthorised access to, use or misuse of the TOPO Systems and/or the Services.
11.3 Each User understands and warrants that it is solely responsible for compliance with any and all laws and regulations that may apply to its use of the TOPO Systems and/or the Services. In connection with its use of the TOPO Systems and/or Services, it agrees that it may not and will not:
(i) infringe the rights of any person or entity, including without limitation their intellectual property, privacy, publicity or contractual rights;
(ii) use or otherwise access the TOPO Systems and/or the Services for purposes other than expressly provided for in these Terms and the Specific Terms (as applicable);
(iii) use the TOPO System and/or the Services to transmit, distribute or submit any information concerning any other person or entity not permitted by any applicable laws and/or regulations;
(iv) (where applicable) interfere in any manner with the hosting of the Hosted TOPO System;
(v) (where applicable) use the On-Site TOPO System to operate in a time-sharing, outsourcing or service bureau environment, or in any way allow any third party to use or access the On-Site TOPO System; or
(vi) post, upload, publish, submit or transmit any Content that (a) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; and/or (b) violates any applicable law or regulation or would give rise to civil or criminal liability.
12. INTELLECTUAL PROPERTY RIGHTS OF THE TOPO SYSTEMS
12.1 Each User understands and agrees that it shall not license or sublicense the TOPO Systems, or transfer or convey the TOPO Systems or any right in the TOPO Systems to anyone else.
12.2 Each User understands and agrees that it shall not:
(i) in relation to the Hosted TOPO System:
(a) download, reproduce, copy, alter, adapt, modify, improve, enhance, translate, create derivative works or otherwise from, reverse engineer, disassemble, decompile or otherwise actions, the Hosted TOPO System in whole or in part; or
(b) sublicense, resell, sublease or transfer any of the User’s rights under these Terms and the Specific Terms (as applicable) for the benefit of a third party or to develop any product that is similar to the Hosted TOPO Systems or to operate in a time-sharing, outsourcing or service bureau environment; and
(ii) in relation to an On-Site TOPO System:
(a) make available or distribute all or any part of the On-Site TOPO System to any third party whether by assignment, sublicense or any other means;
(b) alter, modify, reverse engineer, decompile, disassemble, reverse translate or otherwise decode, in whole or in part, all or any part of the On-Site TOPO System to derive the source code or design thereof or for any other reason provided that information relating to the On-Site TOPO System which is necessary to enable the production of software which is interoperable with the On-Site TOPO System may be made available from TOPO upon written request;
(c) make any derivative work, modification, enhancement, adaptation or translation of the On-Site TOPO System;
(d) make any copy of the On-Site TOPO System save and except for such number of copies as necessary for internal backup, testing and security purposes subject to TOPO’s prior written approval; or
(e) install or use any other instance or copy of the On-Site TOPO System other than expressly permitted under these Terms and the Specific Terms (as applicable).
Intellectual Property Rights in TOPO Systems
12.3 Each User understands and agrees that the ownership of, and the Intellectual Property Rights in, the TOPO Systems (including the source code thereof) together with any related materials or documentation are and shall remain the sole property of TOPO, its licensors or suppliers (as applicable) and no User shall have any interest in or claim to the Intellectual Property Rights in the TOPO Systems (or any part thereof).
12.4 TOPO reserves the right to perform all or any of its obligations under these Terms and/or the Specific Terms (as applicable) through a subcontractor. All source code, object code, associated documentation and other Confidential Information of TOPO provided to the Users by any such subcontractor(s) shall, as between the Users and TOPO, be owned by TOPO and subject to all applicable confidentiality and use restrictions as if such code, documentation, or other Confidential Information had been provided by TOPO.
Defending Alleged Infringement
12.5 TOPO shall in its sole discretion determine what action (the Enforcement Action ), if any, shall be taken in respect of any actual or suspected infringement of any of the Intellectual Property Rights, any act of passing off or unfair competition or similar cause of action in respect of any of the Intellectual Property Rights, and any challenge to the validity of any of the Intellectual Property Rights, and shall have sole control over such matters. The relevant Customer shall provide such reasonable assistance to TOPO in connection with such Enforcement Action, including in legal proceedings in the name of TOPO and/or the relevant Customer. In these circumstances, unless the Parties agree otherwise, TOPO shall be responsible for the costs and expenses of all legal proceedings that it instigates, and shall be exclusively entitled to any monetary remedies or any costs and expenses that are recovered.
13. USER CONTENT
Responsibilities of Customer regarding User Content
13.1 Each Customer acknowledges and agrees that it is solely responsible for all User Content that are made available through the TOPO Systems and/or the Services by it and/or its Designated Users and/or for and on behalf of it and/or its Designated Users. Each Customer represents and warrants that:
(i) it and/or its Designated Users either:
(a) is the sole and exclusive legal and beneficial owner of all User Content that are made available through the TOPO Systems and/or Services by it and/or its Designated Users and/or for and on behalf of it and/or its Designated Users; or
(b) has all rights, licenses, consents and releases that are necessary in relation to the User Content and/or to grant to TOPO the rights in such User Content, as contemplated under these Terms and the Specific Terms (as applicable);
(ii) neither the User Content nor the posting, uploading, publication, submission or transmittal of the User Content by it and/or its Designated Users and/or for and on behalf of it and/or its Designated Users or TOPO’s use of such User Content (or any portion thereof) on, through or by means of the TOPO Systems and/or the Services:
(a) will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation;
(b) will contain any viruses or programming routines which will or may damage, intercept or expropriate any system, data or personal information of the TOPO Systems and/or the Services; or
(c) is materially false or misleading.
13.2 Each Customer hereby grants to TOPO a worldwide, irrevocable, sub-licensable, perpetual (or for the term of the protection), non-exclusive, royalty-free license to use, view, copy, adapt, distribute, transmit, access and otherwise exploit such User Content made available by itself or its Designated Users on or through the TOPO Systems and/or the Services to fulfil its obligations to such Customer under these Terms and the Specific Terms (as applicable). TOPO does not claim any ownership rights in any such User Content and will use the User Content only to the extent necessary to:
(i) perform its obligations under these Terms and the Specific Terms (as applicable);
(ii) deliver Services to the Customer and/or its Designated Users (including but not limited to making their respective User Content available to other such relevant Customers (and/or their Designated Users) as necessary to perform its obligations under these Terms and the Specific Terms (as applicable));
(iii) provide General Support in relation to the TOPO Systems;
(iv) fulfil authorised requests from the Customer and/or its Designated Users; or
(v) enhance the TOPO Systems (including but not limited to developing new features, functionalities and products, conducting market research and industry trends and distributing benchmarks, algorithms and models) provided for such purposes TOPO shall only disclose or otherwise make available any User Content in an anonymized and/or aggregated format whereby individual Customer and/or its Designated Users cannot be identified.
13.3 Each User understands and agrees that TOPO is under no obligation to review any User Content for accuracy or potential liability. TOPO reserves the right to seek and/or take any actions against relevant Customers and/or Designated Users in the event there is any breach of clauses 13.1 and/or 13.2 of these Terms.
Provision of User Content by TOPO to Customers
13.4 At any time during the Licence Term, TOPO will, upon written request by the relevant Customer, deliver to such Customer a text file of all User Content of such Customer and its Designated Users (excluding any part of the TOPO Systems) within fourteen (14) calendar days from such written request subject to an additional fee of US$1,200 per request.
13.5 Each User understands and agrees that TOPO’s obligation to maintain any User Content shall not extend beyond ten (10) years from the date of receipt of the relevant User Content save and except that TOPO will upon written request by the relevant Customer (which shall be made to TOPO no later than one (1) month from the termination of the Licence), deliver to such Customer a text file of all User Content of such Customer and its Designated Users (excluding any part of the TOPO Systems) within fourteen (14) calendar days from such written request subject to an additional fee of US$1,200 per request.
13.6 Notwithstanding clause 13.5 of these Terms, TOPO shall have no obligation to provide any User Content to the Customer where such Customer has made prior request(s) to TOPO to return, delete or otherwise destroy any such User Content. For avoidance of doubt, there may be auto-generated backup copies of any such returned, deleted or otherwise destroyed User Content in the TOPO Systems which will be deleted periodically from time to time.
14. CONFIDENTIALITY
14.1 Both during and after the Licence Term, the Parties shall treat as confidential (and shall procure that their respective personnel (including without limitation the Designated Users of the relevant Customer) and each of them treat as confidential) and shall not (and shall procure that each of their respective personnel (including without limitation the Designated Users of the relevant Customer) does not), other than in the performance of the terms and conditions of these Terms and the Specific Terms (as applicable), use or disclose to any person, firm or company, any Confidential Information belonging to the other Party, nor permit its use or disclosure. In particular, both Parties shall maintain any source code provided by the other Party under maximum security conditions.
14.2 The provisions of clause 14.1 of these Terms shall not apply where the Confidential Information:
(i) is disclosed by TOPO to its suppliers, licensors, and/or subcontractors for the purpose of performing these Terms and the Specific Terms (as applicable);
(ii) is divulged to either Party’s own employees and only to those employees who need to know the same provided that such employees have agreed or are otherwise subject to confidentiality obligations (to the extent permitted by applicable laws and regulations) comparable to clause 14 of these Terms to have access to the Confidential Information;
(iii) is required to be disclosed by law or any court of competent jurisdiction, any governmental, official or regulatory authority or securities exchange or any binding judgment, order or requirement of any other competent authority;
(iv) is in the public domain at the date of disclosure other than through breach of these Terms and/or the Specific Terms (as applicable) by any Party; or
(v) subsequently comes lawfully into the possession of a Party from a third party who is not under a confidential obligation.
14.3 The Parties agree that damages would not be an adequate remedy for any breach of these Terms and the Specific Terms (as applicable) (including but not limited to clause 14 of these Terms) and the remedies of injunction, specific performance and other equitable relief are appropriate for any threatened or actual breach of any such provision and no proof of special damages shall be necessary for the enforcement of the rights under these Terms and the Specific Terms (as applicable) (including but not limited to clause 14 of these Terms). The rights conferred on the Parties pursuant to clause 14.3 of these Terms do not prejudice any rights they may have, pursuant to these Terms and the Specific Terms (as applicable) or otherwise.
14.4 No disclosure or announcement concerning these Terms and/or the Specific Terms (as applicable) or its subject matter shall be made by the Parties without the prior written consent of all Parties.
14.5 The provisions of clause 14 of these Terms shall survive the termination of the Licence.
15. DISCLAIMER
15.1 Nothing in these Terms shall limit liability for personal injury or death caused by negligence, fraud or for fraudulent misrepresentation.
15.2 Each User understands and agrees that actions or inactions caused by third parties or external instrumentalities (including without limitation the Internet) may create situations in which connections to the TOPO Systems may be impaired or disrupted. While TOPO will use commercially reasonable efforts to take any actions it deems appropriate to remedy and avoid such events, TOPO makes no guarantee that such events will not occur and each User agrees that TOPO shall have no liability for any breach of these Terms and/or the relevant Specific Terms to the extent caused by any such event.
15.3 Each User understands and agrees that, save and except as expressly provided in these Terms, the Specific Terms (as applicable), the TOPO Systems, the Services and/or the TOPO Content are provided “as is” and “as available”, without warranty of any kind, either express or implied. TOPO makes no warranty that the TOPO Systems and/or the Services will meet each User’s requirements or be available on a continued, an uninterrupted, secure or error-free basis, save and except where the situation arises as a result of TOPO’s gross negligence or wilful misconduct.
15.4 TOPO expressly disclaims and excludes all warranties, terms and conditions not expressly set out in these Terms and the Specific Terms (as applicable), whether implied by operation of law or by custom, statute or otherwise, including, without limitation, the implied warranties as to title, merchantability, quality or fitness for a particular purpose, care and skill and time for performance, all of which are expressly disclaimed.
15.5 Without limiting the foregoing, TOPO makes no representation or warranty of any kind with respect to the third-party components of the TOPO Systems.
15.6 Each User understands and agrees that none of TOPO, its suppliers or its licensors will have any liability whatsoever for the accuracy, completeness, or timeliness of any Collective Content, any consent required to process any Collective Content, or for any decision made or action taken by any User in reliance upon any Collective Content or other information obtained by User through the TOPO Systems and/or the Services.
16. LIMITATION OF LIABILITY
16.1 Neither TOPO nor any other party involved in creating, producing or delivering the TOPO Systems and/or the Services will be liable for any incidental, special, exemplary or consequential damages arising out of or in connection with these Terms and the Specific Terms (as applicable) (including but not limited to any loss of profits, business interruption, loss of data or business information), or from the use or inability to use the TOPO Systems and/or the Services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, whether or not TOPO has been informed of the possibility of such damage.
16.2 Each User acknowledges and agrees that TOPO’s aggregate liability under these Terms and the Specific Terms (as applicable) shall not exceed an amount equivalent to the aggregate actual amount of Fees received by TOPO from the relevant Customer (i) during and in respect of, exclusively, the period commencing from a date which is three (3)-month preceding the date of the incident giving rise to the liability and ending on the date of the relevant incident; and (ii) all other actual amount of Fees received from the relevant Customer by TOPO and attributable to such three (3)-month period.
16.3 Each User understands and agrees that no action, regardless of form, arising out of these Terms and the Specific Terms (as applicable) may be brought by a User more than one (1) year after the cause of such action has arisen.
17. INDEMNIFICATION
17.1 Each Customer agrees to indemnify, and keep indemnified and hold harmless, and pay to TOPO and its Affiliates an amount equal to any claims, liabilities, damages, losses, and expenses, including, without limitation, legal and other fees payable or suffered by, or imposed on, TOPO and its Affiliates arising out of or in connection with:
(i) access to, use or misuse of the TOPO Systems and/or the Services or violation of these Terms, the Specific Terms, applicable laws or regulations by such Customer and/or any of its Designated Users;
(ii) any unauthorised activities or actions under its accounts or the accounts of its Designated Users, whether or not it (or its Designated User) has authorised or aware of such activities or actions;
(iii) the User Content of such Customer and/or any of its Designated Users.
17.2 Subject to clause 17.3 of these Terms, TOPO agrees to indemnify, and keep indemnified and hold harmless, and pay to a Customer an amount equal to any and all claims, liabilities, damages, losses, and expenses, including, without limitation, legal and other fees payable or suffered by, or imposed on, such Customer arising out of or in connection with:
(i) any breach of warranties given by TOPO in clause 11.1 of these Terms;
(ii) any invalidity or defect in the title of TOPO to the TOPO Systems; and/or
(iii) any material breach of these Terms and/or the Specific Terms by TOPO.
17.3 TOPO’s obligation shall not extend to a claim based on any alleged infringement of any intellectual property rights of any third party arising from any:
(i) third party components of the TOPO Systems;
(ii) additions, changes or modifications to the TOPO Systems by or on behalf of the Users;
(iii) incorporation of the TOPO Systems (or any component thereof) into, or combination of the TOPO Systems (or component thereof) with, any other product, technology, service or process; or
(iv) use of the TOPO Systems (or any component thereof) other than as permitted by these Terms and the Specific Terms (as applicable).
18. STANDARD TERMS FOR USE OF APPLICATION
18.1 By accessing or using the Application, each User acknowledges and agrees to be bound by the standard terms imposed by Apple App Store, Google Play and/or Microsoft Store (as applicable) as amended from time to time.
18.2 As and when applicable, by accessing or using the Application, each User may be required to use the built-in GPS functionalities on his phone in conjunction with Apple Maps, Google Maps, Bing Maps or other then applicable maps. Each User acknowledges and agrees that, by accessing or using the service of Apple maps, Google maps or other such maps, each User is indicating that he understands and agrees to be bound by the terms of use each required respectively by Apple Maps, Google Maps, Bing Maps or other such maps as amended from time to time. EACH USER’S USE OF THE REAL TIME ROUTE GUIDANCE APPLICATION IS AT HIS SOLE RISK. LOCATION DATA MAY NOT BE ACCURATE. IF YOU DO NOT AGREE, YOU HAVE NO RIGHT TO ACCESS OR USE THE TOPO SYSTEMS THROUGH THE APPLICATION AND/OR SERVICES.
19. DATA PROTECTION
These Terms and Conditions incorporate the European Commission’s Standard Contractual Clauses (SCCs) 2021/914/EU (of 4 June 2021) for the transfer of personal data to third countries, including the requirement to conclude a controller-processor agreement according to Art. 28 of the General Data Protection Regulation (GDPR) available here, if the GDPR applies to TOPO’s services. These SCCs replace and supersede any previously agreed data protection agreements between Customer and TOPO.
20. MISCELLANEOUS
20.1 Except for obligations to make payment, neither Party shall be liable for any failure to perform or delay in performing any obligation under these Terms and/or the Specific Terms (as applicable) if such failure or delay is due to fire, flood, earthquake, strike, war (declared or undeclared), embargo, blockade, legal prohibition, governmental action, riot, insurrection, damage, destruction, component or materials shortage, or any other cause beyond the reasonable control of such Party.
20.2 These Terms together with the relevant Specific Terms constitute the entire and exclusive understanding and agreement between TOPO and each of the Users regarding the TOPO Systems, the Services and the Collective Content, and these Terms and the relevant Specific Terms supersede and replace any and all prior oral or written understandings or agreements between TOPO and each of the Users regarding the same.
20.3 Each User may not assign or transfer these Terms and the Specific Terms (as applicable), by operation of law or otherwise, without TOPO’s prior written consent. TOPO may assign or transfer these Terms and the Specific Terms (as applicable), at its sole discretion, without restriction. Subject to the foregoing, these Terms and the Specific Terms (as applicable) will bind and inure to the benefit of the Parties, their successors, permitted assigns and legal representatives.
20.4 A person who is not a party to these Terms and the Specific Terms (as applicable) has no right under the Contracts (Rights of Third Parties) Ordinance (Chapter 623 of the Laws of Hong Kong) to enforce any provision of these Terms and the Specific Terms (as applicable).
20.5 Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms and the Specific Terms (as applicable), will be in writing and given by TOPO via email transmitted.
20.6 If any part of these Terms and/or the Specific Terms (as applicable) is unenforceable, the enforceability of the remaining parts shall not be affected and shall remain in full force and effect.
20.7 The failure of TOPO to enforce any right or provision of these Terms and/or the Specific Terms (as applicable) will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorised representative of TOPO. Except as expressly set forth in these Terms and/or the Specific Terms (as applicable), the exercise by either party of any of its remedies under these Terms and the Specific Terms (as applicable) will be without prejudice to its other remedies thereunder.
20.8 These Terms and the Specific Terms shall be governed by and construed in accordance with the laws of Hong Kong. The Parties hereunder irrevocably agrees that the courts of Hong Kong shall have exclusive jurisdiction in relation to any claim or dispute concerning or arising from these Terms and the Specific Terms (as applicable).
SCHEDULE 1 – SPECIFICATIONS OF TOPO SOFTWARE
TOPO is a SaaS (Software-as-a-Service) mobile data platform that provides facilities to
Functional Summary