Permitted and Prohibited Use
Limited Use. You and your Users may access the SAAS System and use the SAAS Services solely to support and operate in your internal business and operations. True Interaction reserves the right, in its sole discretion, to limit your and/or your Users’ use of the SAAS Services in the event that True Interaction determines that your and/or your Users’ use thereof to be inconsistent with such purposes, and/or otherwise inconsistent with these Terms.
Prohibited Uses. You agree, for yourself and all your Users, as a condition of use of the SAAS Services, not to use the SAAS Services for any purpose that is unlawful or prohibited by these terms, or by any law, regulation, statute or court order. You and your Users may not use the SAAS Service in any manner that could damage, disable, overburden, or impair any True Interaction or subscriber server, or the network(s) connected to any True Interaction or subscriber server, or interfere with any other party’s use and enjoyment of any of the SAAS Services. You and your Users may not attempt to gain unauthorized access to any part of the SAAS Services, other accounts, computer systems or networks connected to any True Interaction or subscriber server or to any part of the SAAS Services, through hacking, password mining or any other means. You and your Users may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the SAAS Services. Except as expressly set forth herein, you and your Users may not (i) copy, reproduce, alter, modify, transmit, perform, create derivative works of, publish, sub-license, distribute, or circulate the SAAS Services, or any associated applications, tools or data thereof; (ii) disassemble, decompile, or reverse engineer the software used to provide the SAAS Services, or use a robot, spider, or any similar device to copy or catalog any materials or information made available through the SAAS Services; or (iii) take any actions, whether intentional or unintentional, that may circumvent, disable, damage or impair the SAAS Services’ control or security systems, or allow or assist a third party to do so.
Suspension of Service. True Interaction may at any time suspend (or require that you suspend) the access of Users to the SAAS Services and/or disable their Account Information (as defined below) in the event of violation of these terms. Grounds for doing are not limited but may include, for example, legal or regulatory reasons, investigation of suspicious activities, or action by authorities, or if True Interaction or you have reason to suspect any such User is engaged in activities that may violate these Terms, applicable laws, or subscriber policies, or are otherwise deemed harmful to True Interaction, your organization, your and our respective network or facilities, or other Users. True Interaction shall not be liable to any User for suspension of SAAS Service, regardless of the grounds.
Ownership; Subscriber and User Submissions
As between you and your Users and True Interaction, the SAAS Services, any material or information provided pursuant to the SAAS Services, and any associated applications, tools or data, and all additions, modifications and improvements made or specified by True Interaction, its agents or contractors, are the property of True Interaction, and are protected by United States and international copyright, trademark and patent laws, as applicable. By using the SAAS Services, neither you nor your Users gain any ownership interest in such items.
True Interaction does not claim ownership of the usage information you or your Users provide for the use and operation of the SAAS Services. True Interaction and its vendors and contractors may use such information to operate and administer the SAAS Services. In addition, True Interaction may retain, analyze, use and share such information in anonymous, filtered, or aggregate form for general business purposes.
True Interaction reserves the right to upgrade, modify, replace or reconfigure the SAAS Services at any time, provided that you will be provided at least thirty (30) days’ advance notice for changes that materially and adversely affect any use of the SAAS Services. True Interaction may also change the fee schedule, support terms, and Statement of Works for the SAAS Services subject to at least thirty (30) days’ advance notice, except that the change will not apply for the remainder of the term of service to the amount and type of SAAS Services you have contracted for under existing Statement of Works. Any such notice may be given and shall be effective if provided in an email sent to your account representative, or if included in any amendment, extension or new version of this Agreement or any Statement of Work.
Links to Third Party Sites
The SAAS Service may provide links that allow you or your Users to leave True Interaction’s site and/or access third party websites. The linked sites in many cases are not under the control of True Interaction and True Interaction is not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. True Interaction is not responsible for webcasting or any other form of transmission received from any linked site. True Interaction provides these links only as a convenience, and the inclusion of any link does not imply endorsement by True Interaction of the site.
Use of Passwords; Internet
You are responsible for providing and administering usernames and passwords for all Users (the “Account Information”). Each User must have a valid username and password for the purpose of accessing the SAAS Services. You and your Users must keep all Account Information strictly confidential. Account Information may be used only by the assigned User and may not be shared or transferred without your consent and control.
You and your Users are responsible for maintaining the confidentiality of that User’s username and password. You and your Users are responsible for any and all activities that occur under all your Users’ accounts. You agree to notify True Interaction immediately of any unauthorized use of your Users’ accounts or any other breach of security. True Interaction will not be liable for any loss that you or a User may incur as a result of someone else using your Users’ passwords or accounts, either with or without the applicable Users’ knowledge.
True Interaction does not guarantee the security of any information transmitted to or from you or any User over the Internet, including through the use of e-mail. Access to the Internet, if employed, is your and each User’s sole responsibility and the responsibility of Internet provider(s) you select. True Interaction does not accept any responsibility for failure of service due to Internet facilities, including related telecommunications or equipment.
Communications from True Interaction
True Interaction may periodically contact you or Users for customer service purposes. By accessing the SAAS Services, you and each Use consent to receive such communications. You agree that True Interaction may reference its business relationship with you in its marketing or sales materials.
You agree to pay at the time indicated in each Statement of Work all payments due from you thereunder. If not otherwise indicated in the Statement of Work (which shall control), all payments are due thirty (30) days from invoice.
You agree to accept responsibility for paying and reporting (a) all federal, provincial, state and local taxes, however designated, levied or based on account of the purchase price of the SAAS Services or SAAS Services or on account of your acquisition or ownership or use of the SAAS Services (exclusive only of taxes based on net income derived by True Interaction), and (b) all foreign taxes, export or import tariffs, and custom duties, however designated, levied or based in connection with the sale conducted hereby, the purchase price of the SAAS Services, or your acquisition or ownership or use of the SAAS Services. You agree to hold True Interaction harmless from all claims and liability arising in connection with your or any associated purchaser’s failure to report or pay such taxes.
You agree that True Interaction and its assigns shall have a security interest in the SAAS Services until you have paid in full the total purchase price of those SAAS Services shown in each applicable Statement of Work. You agree that this agreement shall be a security agreement as defined by the Uniform Commercial Code in effect in the jurisdiction in which the SAAS Services are located and True Interaction is authorized to execute and file financing statement or other recordings in order to document the security interest.
In the event that you default in any of the terms and conditions of the SAAS Subscription Agreement, including these Terms and any Statement of Works completed and approved thereunder, or a petition for bankruptcy is filed by or against you, then, to the extent permitted by applicable law, True Interaction shall have the right to exercise one or more of the following remedies: (a) to declare the entire amount of the unpaid total purchase price due and payable plus all service fees that would otherwise come due for the remainder of the Term of the SAAS Service, together with interest thereon at the lesser of 18% per annum or the then highest allowable legal rate per annum; (b) without demand or legal process, you authorize True Interaction’s agents to enter into the premises where the SAAS Services may be found and take possession and remove the same and you specifically waive any claim or right of action for trespass or damages in connection with True Interaction’s exercise of such right. True Interaction shall have the right to sell, lease or retain the SAAS Services in complete or partial satisfaction of any outstanding claim and to retain all prior payments in respect of the purchase price or SAAS Services and previously accrued service fees. Notwithstanding the taking of possession by True Interaction of the SAAS Services, you shall remain liable for the total purchase price for the SAAS Services and all service fees that would otherwise come due for the remainder of the Term of the SAAS Service; and/or (c) to terminate this Agreement as to any or all of the Statement of Works. All remedies of True Interaction hereunder are cumulative and may, to the extent permitted by law, be exercised concurrently or consecutively and jointly or severally, and the exercise of any one remedy shall not be deemed to be an election of such remedy to preclude the exercise of any other remedy. No failure on the part of True Interaction to exercise, and no delay in exercising any right or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by True Interaction of any right or remedy hereunder preclude any other or further exercise of any partially exercised right or remedy.
Notice Specific to Software
Any software that is made available to download from the SAAS Services (“Software”) is the copyrighted work of True Interaction and/or its suppliers. Use of the Software is governed by the terms of the end user license agreement, if any, which accompanies or is included with the Software (“License Agreement”). In some cases, you or a User may be unable to install any Software that is accompanied by or includes a License Agreement, unless you first agree to the License Agreement terms.
The Software so provided is made available for download solely for use according to the License Agreement. Any reproduction or redistribution of the Software not in accordance with the License Agreement is expressly prohibited by law, and may result in civil and criminal penalties. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE LICENSE AGREEMENT ACCOMPANYING SUCH SOFTWARE.
RESTRICTED RIGHTS LEGEND. Any Software which is downloaded from the Services for or on behalf of the United States of America, its agencies and/or instrumentalities (“U.S. Government”), is provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software — Restricted Rights at 48 CFR 52.227-19, as applicable.
Termination of the SAAS Subscription Agreement
In the event that you breach any provision of the SAAS Subscription Agreement, or you or your Users breach these Terms, and such breach is not cured within 10 days after receipt of notice thereof from True Interaction, True Interaction may terminate the SAAS Subscription Agreement and any Statement of Work, in whole or in part, immediately upon written notice to you. Notwithstanding the foregoing, there shall be no cure period for any event of default that is not curable.
Upon expiration or prior termination of the SAAS Subscription Agreement, all rights granted herein shall revert to True Interaction. All access to and use of the SAAS Services by Users must then cease, and all materials, applications and tools downloaded from the SAAS Service must be erased, deleted, or destroyed.
No Warranties, Limitation of Liability
To the extent that the original manufacturer is not True Interaction or its affiliates and such manufacturer makes any warranties covering the SAAS Services, True Interaction assigns those warranties to you, subject to the conditions and limitations provided by the manufacturer. True Interaction will cooperate with you, at your cost, to process any warranty claim, but True Interaction assumes no other responsibility for such warranties. THE FOREGOING ASSIGNMENT OF WARRANTIES IS EXPRESSLY IN LIEU OF ANY AND ALL OTHER WARRANTIES PERTAINING TO THE SAAS SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS WARRANTY ARISING FROM ANY DESCRIPTION OR SPECIFICATION PROVIDED FOR THE SAAS SERVICES, OR ANY SAMPLE OR MODEL PRESENTED TO YOU OR YOUR REPRESENTATIVES, OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR TITLE. YOUR EXCLUSIVE REMEDY FOR ANY CLAIM BASED ON THE CONDITION, PERFORMANCE, DEFECT OR NON-CONFORMITY OF THE SAAS SERVICES SHALL BE TO MAKE A CLAIM TO THE ORIGINAL MANUFACTURER FOR THE WARRANTIES (IF ANY) PROVIDED BY THE ORIGINAL MANUFACTURER.
THE SAAS SERVICES AND ANY TOOLS, APPLICATIONS, INFORMATION OR MATERIALS PROVIDED TO YOU IN CONNECTION WITH THE SAAS SERVICES ARE PROVIDED “AS IS,” AND ALL WARRANTIES OF ANY KIND, PAST OR PRESENT, WHETHER STATUTORY, COMMON-LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RESULTS OR OUTPUT, SECURITY AND, EXCEPT AS MAY BE OTHERWISE STATED IN THIS AGREEMENT, NON-INFRINGEMENT, ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. SAAS DOES NOT GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR ACCURACY OF THE SAAS SERVICES.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SERVICE PROVIDER OR ITS EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF SAAS’S OBLIGATIONS HEREUNDER. IN NO EVENT SHALL TRUE INTERACTION BE LIABLE FOR ANY LOST OR CORRUPTED DATA, DOWNTIME, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT SERVICE OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, INCLUDING NEGLIGENCE.
True Interaction and its affiliates shall not be liable for loss, injury or damage of any kind to any person or entity resulting from any use, condition, performance, defect or failure in the SAAS Services. You and your Users release and waive all claims against True Interaction, its parent, subsidiaries, affiliated companies, agents or content providers, and the directors, trustees, officers, shareholders, employees, agents and representatives of each of the foregoing (collectively its “Representatives”), from any and all claims, damages, liabilities, costs and expenses arising out of your and your Users’ use of the SAAS Services. California residents waive any rights they may have under §1542 of the California Civil Code, which reads: “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 known by him must have materially affected his settlement with the debtor.” You and your Users agree to release unknown claims and waive all available rights under California Civil Code §1542 or under any other statute or common law principle of similar effect. To the extent permitted by applicable law, this release covers all such claims regardless of the negligence of True Interaction and its Representatives.
You represent and warrant that (i) you have full power and authority to enter into the SAAS Subscription Agreement, and to agree to all the terms and conditions contained therein and in these Terms; (ii) only you and your Users shall be permitted to access the SAAS Services and any related tools, applications, information and materials provided in connection with the SAAS Services; and (iii) you shall obtain and maintain in effect all permits, licenses and authorizations necessary for the purchase and intended use of the SAAS Services.
By accessing and/or using the SAAS Services, Users agree to report to True Interaction all claims or suspected claims of copyright or other infringement of True Interaction’s intellectual property or other proprietary rights. Claims of infringement should be directed to Legal Counsel, True Interaction, If you believe that any information on the SAAS Site infringes on your copyright, you should notify True Interaction of your claim in accordance with the following procedures. True Interaction will process notices of alleged infringement in accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable copyright laws. The DMCA requires that notification of claimed infringement be in writing and provided to True Interaction’s designated agent of service:
To be effective, the notice of infringement must contain the following information: (1) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (2) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (3) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the True Interaction to locate the material; (4) information reasonably sufficient to permit the True Interaction to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; (5) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (6) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
True Interaction shall not be liable for any loss or damage of any kind or for any consequences thereof resulting from delay or inability to deliver caused by strikes, lockouts, fire, theft, shortage, inability to obtain materials or shipping space, breakdowns, delays or carriers, manufacturers, or suppliers, acts of God, governmental statutes, proclamations or regulations, riot, civil commotion, war, malicious mischief, receipt of necessary information from Purchaser, or by any cause beyond your reasonable control.
You acknowledge and agree that the SAAS Services and the tools, applications, information and materials provided in connection with the SAAS Services possess a special, unique and extraordinary character that makes difficult the assessment of the monetary damages that would be sustained as a result of unauthorized use, and that unauthorized use may cause immediate and irreparable damage to True Interaction or other Subscribers for which True Interaction or such other Subscribers would not have an adequate remedy at law. Therefore, you agree that, in the event of such unauthorized use, in addition to such other legal and equitable rights and remedies as may be available to True Interaction, True Interaction shall be entitled to injunctive and other equitable relief without the necessity of proving damages or furnishing a bond or other security.
This Agreement shall be construed and enforced under the laws of the State of New York, without reference to the choice of law principles thereof. User hereby consents to and submits to the jurisdiction of the federal and state courts located in the State of New York. User waives any defenses based upon lack of personal jurisdiction or venue, or inconvenient forum.
If any provision herein is unenforceable, then such provision shall be of no effect on any other provision hereof. No waiver of any breach hereof shall be deemed a waiver of any other breach hereof.
FOR NOTICES, YOU MAY WRITE OR EMAIL TO: TRUE INTERACTION, LLC
office at trueinteraction dot com