Terms and Conditions

1. SERVICES AND SUPPORT
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1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services in accordance with the Service Level Terms attached hereto as Exhibit A.  As part of the registration process, Cutomer will identify an administrative username and password for Customer’s Company account.

1.2 Customer is responsible for anyone who obtains, accesses or uses Customer’s Company account (the “Authorized Users”). This means (among other things) that Customer is responsible for complying with this Agreement among its Authorized Users.

1.3 Customer is also responsible for the security of the Customer’s Company account and all activity associated with the Customer’s Company account. This means (among other things) that Customer (i) will ensure that only the Authorized Users use the Services associated with the account, and (ii) will secure and not share user IDs or passwords (except with authorized account administrators). If Customer suspects unauthorized use of Customer’s Company account or the Authorized Users accounts, please contact the Company immediately.

‍2. LICENSE GRANTING
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2.1 For any Services that Company makes available or delivers to Customer, and subject to compliance with this Agreement and all payment obligations, Company grants Customer a non-exclusive, non-sublicensable, non-transferable license, during the Term of the Agreement, to install and use the Software (and permit the Authorized Users to use the Software) solely (i) in accordance with the this Agreement and (ii) within the scope of the Order Form in the entire world. Customer may not install, access or use (or allow installation of access to or use of) any Services other than as authorized by such license and this Agreement, and any other installation, access or use is unauthorized.

2.2 During the Term of the provided Services, Company may make available or deliver updates or upgrades to the Services. All such updates and upgrades are subject to the same license and other terms as the Services to which the updates or upgrades apply. Company will provide the Customer with any and all updates and upgrades and Customer is encouraged to use and follow Company instructions if receives an update or upgrade.

2.3 Any Services (including any update or upgrade) that Company makes available or delivers to Customer is licensed for a limited subscription period, not sold, and Customer may not transfer or assign the license, except to the extent expressly permitted by applicable law notwithstanding a contractual prohibition to the contrary or as otherwise expressly permitted by Company in writing. Company’s subscription to a Web Service does not grant a license to the underlying software used in providing the Web Service.

3.  SAAS

3.1 SAAS SERVICES
‍If Customer subscribes to Services provided as a web service (“SAAS” or “Web Services”), Company will provide those Web Services to Customer during the Term of the Agreement, subject to compliance with this Agreement and all payment obligations. Customer may access and use the Web Services solely (i) in accordance with the documentation attached to the Order Form, and (ii) within the scope of the contracted Services, including the permitted number of Authorized Users and other attributes specified for the type and level that Customer selects when subscribing to the Services. Customer may not access or use (or allow access to or use of) any Web Service other than as authorized by this Agreement, and any such access or use is unauthorized.

3.2 The Services will be provided to Customer and will be kept constantly up to date. Maintenance of the SaaS Software shall include: (i) Error Corrections: Company agrees to correct any errors or defects that prevent the Services from functioning properly; (ii) Upgrades: Company may make periodic updates to the Web Services to improve its performance, add new features or correct bugs. Such updates will be provided to Customer at no additional cost; (iii) Technical Support: Company will provide technical support to Customer in connection with the Web Services including the correction of any errors or defects that impede the proper functioning of the Services; (iv) Security Updates: Company agrees to take reasonable measures to provide security updates to the Services in order to protect it from known threats. The Customer shall be responsible for implementing and applying the security updates provided by the Company in their environment when applicable.

3.3 The Customer shall notify the Company in writing of any errors or defects, providing detailed information for their identification and reproduction. Technical support will be available as set forth in the Service Level Agreement (“SLA”) applicable to this Terms and Conditions. Company agrees to respond to Customer's inquiries and support requests in a timely and professional manner according to the SLA.

3.4 Customer acknowledges and agrees that Company may perform scheduled maintenance tasks that require temporary interruption of access to the Services. Company will endeavor to schedule such interruptions at times that minimize the impact on Customer and will provide as much advance written notice as possible.

3.5 Provision of the Services do not include access to the internet or any other network or to any communications services or any hardware, software, storage, security or other resources necessary for accessing or using the Services outside of those provided by the Company. Customer and Customer’s other suppliers and service providers are responsible for acquiring all such items and for their reliability, security, performance, and connection with the Services that are not covered by the Services.

3.6 From time to time, in order to provide the Services, the Company may carry out specific software developments aimed at creating connectors, scripts, add-ons or add-ins and similar developer material with which to correctly provide the contracted Services that form part of the Services. For any such developments established in this section that Company makes available or delivers to Customer, and subject to compliance with this Agreement and all payment obligations, Company grants Customer a non-exclusive, non-sublicensable, non-transferable license, for the Term hereby established, to use such developments only (i) internally in conjunction with and for Customer’s own authorized internal use of the Services for which the developments have been made available, and (ii) in accordance with any documentation associated with the Services. All developments are confidential and proprietary to Company and may not be distributed or disclosed to any third party or used for any purpose other than as permitted exclusively by Company.)

4. RESTRICTIONS AND RESPONSIBILITIES

4.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms, APIs, add ins and/or add ons, or other internals, the protocols, data structures or other externals except as expressly permitted under applicable law notwithstanding a contractual prohibition to the contrary relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.  With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices.

4.2 Customer represents, covenants and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

5. CONFIDENTIALITY; PUBLICITY
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5.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service.  Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.  

5.2 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services.  Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.     

5.3 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (excluding any type of personally identifiable information), and  Company will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or another de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.   

5.4 Customer permits the Company to use its name, logo and/or trademark, pending prior written approval by Customer, in the customer section on the website or other relevant sections of Company’s website and in marketing collateral, provided that the Company abides by the Customer’s brand identity standards available and that the Company will abide by any requests the Customer may make to remove or change the Customer’s logo at any time. Notwithstanding the foregoing, Company shall not use Customer’s name and logo for any other purpose not explicitly permitted by Customer in writing in advance and shall immediately cease all uses of Customer’s name and logo upon termination of this Agreement.

6. PAYMENT OF FEES

6.1 Customer will pay Company the applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”).  Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to Company’s customer support department.
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6.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice.

7.  INTELLECTUAL PROPERTY
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7.1 You acknowledge and agree that Company and its licensors and suppliers will have all ownership of and all rights with respect to (i) the Services, Software and other information or material provided or made available by Company to the Customer and (ii) any copies of the foregoing, or any materials or other information based on, derived from or otherwise using any of the foregoing (including all rights under trade secrets, copyrights, trademarks, patents and all other intellectual property or proprietary rights relating to any of the foregoing). The structure and organization, the underlying algorithms and other internals, the protocols, data structures and other externals, and the source code of the Services and the correspondent APIs constitute proprietary and confidential information of the Company, and Customer will not disclose such information to third parties, or use such information for any purpose other than as required for ordinary-course access to and use of the Services as set forth in this Agreement, without Company’s prior written consent. Also, Customer agrees not to access or attempt to access the Services by any means other than the interface Company’s provides or authorizes. Company may make available or provide access to other confidential and proprietary information (either marked as such or understood to be such under the circumstances). If Customer receives such information, Customer will not disclose it to any third party, or use such information for any purpose other than as required for access to and use of the Services as set forth in this Agreement, without Company’s prior written consent. Customer has only the rights expressly granted under this Agreement. Customer agrees not to take any action, or to authorize or encourage any third party to take any action (or cooperate with any third party in taking any action), inconsistent with the foregoing.
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8. TERM AND TERMINATION
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8.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

8.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement.  Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, intellectual property and limitations of liability.

8.3 Upon any termination of this Agreement for any reason, (i) Customer account and access to the Services, including those of the Authorized Users, will immediately terminate and (ii) Customer will cease all access to and use of any on-premise and SaaS Services (including all access and use by the Authorized Users).

9. WARRANTY AND DISCLAIMER
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9.1 Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
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COMPANY IS NOT A PROVIDER OF ANY LEGAL SERVICES AND DOES NOT HOLD ANY CAPACITY TO DO SO. ALL PRODUCTS AND SERVICES ARE CONFIGURED AS TECHNOLOGY SUPPORT TOOLS BASED ON MARKET STANDARDS BUT DO NOT IMPLY THE PROVISION OF ANY LEGAL SERVICES. THE CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THAT IT COMPLIES WITH ITS LEGAL AND COMPLIANCE OBLIGATIONS. COMPANY MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO CUSTOMER'S COMPLIANCE WITH ITS APPLICABLE REGULATIONS.

10. INDEMNITY
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10.1 Company shall hold Customer harmless from liability to third parties resulting from infringement by the Services rendered of any patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Customer is solely responsible for maintaining in force all licenses that are necessary for the Company to properly provide the Services to Customer, and the Company shall not be liable for any infringement incurred by Customer in receiving the Services. Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement.  If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

11. LIMITATION OF LIABILITY

11.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS, LOSS OF DATA,OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12. DATA PROTECTION

12.1 The Customer acknowledges that its employees’ use of the Services will be subject to Company’s Privacy Policy, available at www.TrustWorks.io (or any successor site), as they may be updated from time to time. Company and Customer shall comply with its Privacy Policy and all applicable law in connection with its operation of the Services.

12.2 To the extent Company collects, records, organizes, alters, accesses, consults or transmits personal data, as defined in applicable privacy regulations, for which Customer is data controller or processor and as it relates to the provision of the Services, Company shall process such personal data in accordance with the Data Processing Addendum (“DPA”) available. The terms of the DPA are valid upon the Effective Date of this Agreement, and as may be updated by Company from time to time, provided any such updates are required by applicable law.

13. MISCELLANEOUS

13.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sublicensable by either party except with the other party’s prior written consent, such consent not to be unreasonably withheld; provided, however, that either party may assign or transfer this Agreement without the other party’s consent upon and in connection with a merger, acquisition, change of control, or a sale of all or substantially all assets of the transferor or assignor.

13.2 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  This Agreement shall be governed by the laws of Ireland without regard to its conflict of laws provisions. Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.