TRUECONTEXT SUBSCRIPTION AGREEMENT
Last updated on November 3, 2023
By signing a TrueContext Order Form that references these terms and conditions (together, the Order Form and these terms and conditions are the “Agreement”), the entity identified on the Order Form (“Customer”) and TrueContext Inc. (“TrueContext”) each confirm that it has read, understands, and agrees to be bound by these terms and conditions. In this Agreement, TrueContext and Customer may be referred to individually as a “Party” and collectively as the “Parties.”
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to these terms and conditions through their authorized representatives identified on the Order Form.
- “Added Option” means any optional product, service, feature or functionality relating to the Service which TrueContext makes available to its customers subject to the agreement of additional terms.
- “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the Customer signing this Agreement. For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
- “Customer Data” means all data or information submitted by or on behalf of Customer to the Service, including without limitation, form submissions as well as form definitions, data sources and form resources, but does not include Aggregated Anonymous Data (as defined below in Section 6.5) or server and/or submission logs generated during Customer’s use of the Service, including User Log Data (as defined below in Section 6.6).
- “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
- “Order Form” means an ordering document executed by the Parties that specifies the Service purchased by Customer under this Agreement.
- “Professional Services” means any services available to Customer to implement and use the Service as detailed in a separate Statement of Work, which may include, configuration, implementation, customization, consulting, and training.
- “TrueContext Materials” means any materials that TrueContext provides to Customer as part of, or in the course of providing, the Service or the Professional Services. Customer agrees that TrueContext Materials are TrueContext’s Confidential Information, as defined in Section 7. Customer shall use the TrueContext Materials only as expressly permitted in this Agreement, or the applicable Order Form or Statement of Work. For clarity, any Customer Data presented back to the Customer as a result of using the Service remains Customer Data, and not TrueContext Materials.
- “Published Documentation” means the documentation describing the Service, as may be updated from time to time, available to Customer at the TrueContext Documentation Portal found on TrueContext’s website or in the Service.
- “Service” means TrueContext’s hosted, on-demand, offering subscribed to by Customer as identified in the Order Form(s), including any updates, upgrades and new Versions thereto. The Service as defined in this Agreement shall not include Professional Services (if any). TrueContext may update the Service at any time in its sole discretion, provided that updates shall not substantially diminish or eliminate the core functionality of the Service.
- “Statement of Work” or “SOW” means a document that describes certain Professional Services purchased by Customer under this Agreement.
- “Subscription Term” means the then-current Initial Term or Renewal Term of the applicable Order Form(s) during which Customer’s Users are authorized to access or use the Service pursuant to this Agreement, unless earlier terminated as set forth in Section 3.
- “Support Services” means the support services provided by TrueContext as identified on an Order Form. If a specific level of support is not identified on an Order Form, Customer shall receive a “standard” level of support as described in our Technical Support Handbook.
- “User” means an individual who is authorized by Customer to access or use the Service and who may be supplied with a unique identification by Customer. Unless otherwise expressly agreed by TrueContext in an Order Form, Users must be Customer’s or Customer’s Affiliates’ employees or contractors. Customer shall purchase a subscription to the Service for its Users (a “Subscription”).
- “Version” means a new program status which contains a material performance and functional increase compared to the previous program status of the Service, except to the extent that such new program status is an Added Option which may be subject to additional terms to which Customer will be required to agree and additional fees which Customer will be required to pay before being permitted to use the Added Option.
2. DESCRIPTION OF SERVICE AND PROFESSIONAL SERVICES.
2.1 General. Unless otherwise expressly agreed by TrueContext: (i) TrueContext reserves the right to amend this Agreement at any time upon notice to Customer, which notice shall be provided by posting the relevant amended and restated terms and conditions on the TrueContext website and such amendments to the Agreement are effective as of their date of posting; and (ii) Customer’s continued use of the Service after the amended Agreement’s terms and conditions are posted to the TrueContext website constitutes Customer’s agreement to and acceptance of the amended Agreement.
2.2 Provision of Service. In exchange for Customer’s payment of the applicable Fees, TrueContext shall make the Service available to Customer pursuant to this Agreement and all Order Forms during the Subscription Term, solely for Customer’s own internal business purposes. Customer agrees that its purchase of the Service or the Professional Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by TrueContext with respect to future functionality or features.
2.3 Additional Users; Add-Ons. Customer’s use of the Service shall be limited to the number of Users purchased by Customer in an Order Form for use during the Subscription Term. At any time, Customer may increase its committed number of Users by separate Order Form or, if applicable, from within the Service itself. Any increase in the committed number of Users shall be for the remainder of the Subscription Term regardless of usage and unless otherwise expressly agreed by TrueContext in an Order Form, the committed number of Users cannot be reduced during the Subscription Term.
2.4 User Restrictions. Unless otherwise expressly permitted by TrueContext, Customer will not: (i) share Customer unique information such as a web form URL or permit Users to share their User identification with any other person; and (ii) create generic User identification(s) for use by multiple Users.
2.5 Customer Compliance. Customer is responsible for compliance by all Users with the Agreement, including without limitation, any and all activity occurring under all User identification(s).
2.6 Professional Services. If Customer purchases Professional Services, such Professional Services, and any additional terms relating thereto, will be set out in an Order Form and/or Statement of Work.
2.7 Technical Support. English language technical support is offered between the hours of 8:00 am – 8:00 pm Eastern Time Monday to Friday as well as Saturdays between the hours of 11 am – 7:00 pm, excluding January 1st and December 25th, via toll-free phone in North America:1-888-762-7472. Depending on shift coverage, Spanish language technical support may also be available during the same hours as English language technical support. Customer may contact technical support for assistance related to downloading and installing mobile forms on their handheld devices, or with questions related to using mobile forms. Technical support can also provide assistance to Customer on how to access and manage Customer Data. The TrueContext Technical Support Handbook contains additional information regarding response objectives, service and enhancement requests and escalations.
2.8 Maintenance/Upgrades. Occasionally the Service may be temporarily unavailable due to service maintenance and/or upgrades. In an effort to minimize the impact to customers, most maintenance and/or upgrade activities are scheduled to occur during low peak hours, as reasonably determined by TrueContext with reference to its service metrics. TrueContext will make commercially reasonable efforts to notify customers of scheduled maintenance and/or upgrade activities at least five (5) business days in advance. Notifications are delivered via the TrueContext status dashboard and administration portal. Maintenance and/or upgrade activities do not usually result in any interruption to the Service; however, on occasion, customers may see a service interruption. If real-time access to the Service is unavailable due to scheduled (or unscheduled) downtime, with limited exceptions, customers may continue to work offline and data can be synchronized later, when access to the Service is restored. The extent of the new features or functionality available to customers following such maintenance and/or upgrade activity will depend on each customer’s then-current Subscription.
3. TERM AND TERMINATION.
3.1 Term of Agreement. The “Term” of this Agreement shall be equal to the duration of the then-current Initial Term or Renewal Term(s) of the applicable Order Form(s). For purposes of clarity, the Term of this Agreement will commence on the Effective Date specified in the first Order Form and will continue until either (a) all Order Form(s) are terminated in accordance with Sections 3.3 or 3.4 herein, or (b) all Order Forms under this Agreement have expired.
3.2 Term of Subscription(s). The “Initial Term” of each Order Form will commence on the Effective Date set forth on such Order Form and will continue for the Subscription Term described in such Order Form. Unless otherwise set forth on the applicable Order Form, each Order Form will automatically renew after the Initial Term for successive twelve-month periods (each a “Renewal Term”), unless either Party gives prior written notice (in accordance with Section 11.2) of its intent not to renew such Order Form at least thirty (30) days prior to the end of the Initial Term or then-current Renewal Term. TrueContext may increase the Fees due for the applicable Renewal Term (if any) by providing notice to Customer of such increase at least thirty (30) days before the commencement of any such Renewal Term.
3.3 Termination for Cause. In addition to the other causal termination rights expressly set forth in this Agreement, a Party may terminate this Agreement, an Order Form, or a Statement of Work for cause: (i) if the other Party is in material breach under this Agreement and fails to cure such breach within thirty (30) days of receipt of written notice (in accordance with Section 11.2) of such material breach from the non-breaching Party, in which event, if the uncured material breach is that of TrueContext, Customer shall be entitled to a pro-rata refund of any pre-paid but unused Fees in relation to the applicable Subscription Term, calculated from the effective date of termination; or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors and such proceeding is not favorably resolved within sixty (60) days.
3.4 Termination for Convenience. Customer may terminate an Order Form for convenience by emailing TrueContext at email@example.com. If Customer terminates an Order Form for convenience: (i) all outstanding Fees for the unexpired portion of the then-current Initial Term or Renewal Term of the applicable Order Form will become immediately due and payable, irrespective of the payment frequency or other payment terms set out in such Order Form or this Agreement; and (ii) if Customer has pre-paid all or a portion of the Fees owed, such pre-paid Fees will not be refunded.
3.5 Effect of Termination. Upon any termination (including non-renewal) of Customer’s Subscription to the Service, Customer’s access to and right to use the Service will immediately terminate and TrueContext may take such technical steps as may be necessary to prevent Customer’s further use of the Service. Any post-termination transition assistance required by Customer is subject to the mutual agreement of the Parties and may require the payment of additional Professional Services fees. The following provisions shall survive any termination or expiration of this Agreement: Sections 1, 3.5, 4, 6.2 – 6.7, 7, 8.2 – 8.3 and 9 – 11.
4. FEES AND PAYMENT.
4.1 Fees. Customer shall pay all fees specified in all applicable Order Form(s) and Statement(s) of Work (“Fees”). Except as otherwise specified herein or in any Order Form or Statement of Work, all Fees are quoted and payable in advance in United States dollars, payment obligations are non-cancelable, and Fees paid are non-refundable. Fees for the Service are based on Subscriptions purchased and not actual usage. For purposes of clarity, unless otherwise expressly agreed by TrueContext in an Order Form, the committed number of Users cannot be reduced during the Subscription Term.
4.2 Invoicing and Payment. Unless otherwise set forth in an Order Form, Customer will pay to TrueContext (by wire transfer, cheque, credit card or other method mutually acceptable to the Parties) all Fees upon Customer’s receipt of the applicable invoice. Late payment of Fees may be subject to interest on the past due amount at the lesser of 1.5% per month or the maximum rate permitted by applicable law. Customer is responsible for providing complete and accurate billing address and contact information to TrueContext. If Customer believes a particular invoice is incorrect, Customer must contact TrueContext in writing (firstname.lastname@example.org) within thirty (30) days of such invoice date to be eligible to receive an adjustment or credit, failing which, such invoice must be paid in full in accordance with the terms of this Agreement.
4.3 Suspension of Service. If Customer is thirty (30) days or more overdue (except for charges then under reasonable and good faith dispute), then, following fifteen (15) business days’ written notice and opportunity to cure (which notice may be provided via email), in addition to any of its other rights or remedies, TrueContext reserves the right but not the obligation to suspend Customer’s access to the Service until such amounts are paid in full. Additionally, without limiting TrueContext’s rights and remedies under this Agreement, TrueContext reserves the right, at its sole discretion, to suspend Customer’s access to the Service: (i) to address technical, security or other emergency issues; or (ii) if TrueContext believes Customer has violated any provision of this Agreement, including without limitation, the Use Restrictions described in Section 6.3 below. In such circumstances, TrueContext will use commercially reasonable efforts to notify Customer of the reasons for suspension as soon as practicable (or if the reason for suspension is to address an emergency issue, promptly thereafter). In the circumstances described in (i), TrueContext will promptly reinstate Customer’s access to the Service upon resolution of the issue. For clarity, Customer will continue to be charged for the Subscription during any period of suspension. In no event will TrueContext be responsible to Customer for damages suffered as a result of a suspension in accordance with this Section.
4.4 Taxes. Unless otherwise stated, Fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes“). Customer is responsible for paying all Taxes associated with its Order Form(s) and Statement(s) of Work, excluding taxes based on TrueContext’s net income or property. For clarity, Taxes are based on the “sold to” address that Customer provides to TrueContext. If TrueContext has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides TrueContext with a valid tax exemption certificate. Tax exemption will only apply as of the date that Customer provides a valid tax exemption certificate to TrueContext.
5. MUTUAL RIGHTS AND RESPONSIBILITIES.
5.1 TrueContext’s Responsibilities. TrueContext shall: (i) not use or modify Customer Data except as otherwise set forth in this Agreement; (ii) use commercially reasonable efforts designed to maintain the security and integrity of the Service and Customer Data; (iii) provide Support Services to Customer in accordance with the applicable Support Service purchased by Customer, and (iv) comply with all applicable laws in providing the Service and Professional Services.
5.2 Customer’s Responsibilities. Customer is responsible for all activity that occurs within its account and for its Users’ compliance with this Agreement. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data; (ii) prevent unauthorized access to, or use of, the Service, and notify TrueContext promptly of any such unauthorized access or use; and (iii) comply with all applicable laws and regulations relating to its use of the Service.
6. PROPRIETARY RIGHTS AND USE RESTRICTIONS.
6.1 Access to the Service. In exchange for payment of the Fees listed on the Order Form, and subject to the terms of this Agreement and any applicable Order Form and/or SOW, TrueContext grants Customer (a) a nonexclusive, royalty-free, nontransferable (except in instances of permissible assignment in Section 11.5) right, solely during the Subscription Term (i) to access and use the Service solely for Customer’s internal business purposes; and (ii) to use the TrueContext Materials solely in conjunction with Customer’s authorized use of the Service.
6.2 Reservation of Rights. Except for the limited rights expressly granted to Customer in this Agreement, TrueContext reserves all right, title and interest in and to the Service, the underlying software, the TrueContext Materials, and the Professional Services, including all related Intellectual Property Rights inherent therein. No rights are granted to Customer other than as expressly set forth in this Agreement.
6.3 Use Restrictions. Except as expressly permitted in this Agreement, Customer shall not: (i) modify, copy, display, republish or create derivative works based on the Service or the underlying software; (ii) circumvent any User limits or other use restrictions that are built into the Service, the majority of which are available here; (iii) modify, copy or create derivative works of the TrueContext Materials; (iv) except for the purpose of interoperability, reverse engineer the Service or the underlying software; (v) access the Service in order to build a competitive product or service, or copy any ideas, features, functions or graphics of the Service; (vi) license, sublicense, sell, resell, rent, lease, transfer, assign (except as permitted in Section 11.5), distribute, time share or otherwise commercially exploit or make the Service available via a service bureau, software-as-a-service offering or otherwise, to any third party other than to Users; (vii) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights or other Intellectual Property Rights; (viii) store or process personal information characterized as “sensitive information” under applicable privacy laws, including any health information, social insurance, social security or credit card numbers; (ix) upload to the Service or use the Service to send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (x) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (xi) attempt to gain unauthorized access to the Service or its related systems or networks; (xii) use or permit use of the Service in a manner contrary to applicable law; (xiii) use the Service in the operation of critical data systems, such as those used for the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control systems, patient data systems, life support machines or other equipment in which the failure of the Service could lead to death, personal injury, or severe physical or environmental damage; (xiv) alter or remove, or permit any third party to alter or remove, any proprietary trademark or copyright markings incorporated in, marked on or affixed to the Service or any TrueContext Materials; or (xv) export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all applicable export control laws and regulations that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business, including any international treaties or agreements, and shall not cause TrueContext to violate the same.
For clarity, in relation to subsection (ii) above, even if Customer’s use of the Service is indicated as “Configurable by TrueContext”: (i) Customer’s use remains subject to reasonable limits; and (ii) TrueContext reserves the right, at its sole discretion, to impose upper limits on various aspects of Customer’s use of the Service. Use in excess of such limits shall entitle TrueContext to increase the Fee payable by Customer in accordance with the then-applicable fee schedule.
6.4 Customer Data. As between TrueContext and Customer, Customer retains control, ownership of all rights, title and interest in and to all Customer Data. Customer Data is deemed the Confidential Information of Customer under this Agreement. For the duration of the Subscription Term, Customer grants TrueContext a non-exclusive, transferable, sublicensable, royalty free license to use Customer Data solely to provide the Service and/or the Professional Services to Customer.
- Customer Data Access by TrueContext. Customer Data will not be accessed by TrueContext except as necessary, by authorized personnel and at Customer’s request, to identify, investigate or resolve technical problems with the Service or to verify Customer’s compliance with the terms of this Agreement (i.e. to monitor Customer’s use of certain features or functionality of the Service for billing purposes). Customer Data that is accessed by TrueContext will: (i) be kept confidential; (ii) be handled in accordance with applicable laws and regulations; and (iii) not be shared with any unauthorized personnel or comingled with other data.
- Customer Data Access by Customer. Customer manages and controls access to the Service and the use and processing of Customer Data. Customer is therefore responsible to develop, implement and maintain technical and organizational measures and procedures to retrieve and archive Customer Data on a regular basis. During the Subscription Term, Customer can access its form submissions on the TrueContext servers for a minimum of 365 days from the creation date of each form submission, after which time such submissions will be archived and retained for the balance of the Subscription Term (subject to TrueContext’s then applicable timeline and policies for data destruction).
- Customer Data Archival. Both during and following the Subscription Term, TrueContext may maintain back-up copies of Customer Data in a secure site for disaster recovery purposes, provided such back-up copies are destroyed in accordance with TrueContext’s then applicable timeline and policies for data destruction.
- Customer Data Deletion. Subject to the foregoing, upon termination of an Order Form, Customer will no longer be able to access the Service or the Customer Data. On termination of an Order Form, unless otherwise deleted by Customer prior to termination, Customer Data will be (i) retained in the Service for seven (7) days; and (ii) permanently deleted from TrueContext’s Disaster Recovery storage forty-five (45) days thereafter.
6.5 Aggregated Anonymous Data. TrueContext may collect, use and aggregate the metadata and usage data of Customer and/or Users collected or otherwise made available through the Service so that the results are non-personally identifiable with respect to Customer and/or such Users (“Aggregated Anonymous Data”). The Aggregated Anonymous Data will be deemed TrueContext Technology, and Customer acknowledges that TrueContext may use the Aggregated Anonymous Data, both during and after the Term, (i) for its own internal, statistical analysis, (ii) to develop and improve the Service, and (iii) to create and distribute reports and other materials regarding use of the Service. For purposes of clarity, nothing in this Section 6.5 gives TrueContext the right (or ability) to publicly identify Customer as the source of any Aggregated Anonymous Data.
6.6 User Log Data. TrueContext may collect and use the usage data of Users collected or otherwise made available through the Service (“User Log Data”). Customer acknowledges that TrueContext may use the User Log Data, both during and after the Term, (i) for its own internal, statistical analysis, and (ii) to develop and improve the Service. For purposes of clarity, nothing in this Section 6.6 gives TrueContext the right (or ability) to publicly identify Customer and/or Users as the source of any User Log Data.
6.7 Intellectual Property Rights Ownership, Use. TrueContext alone shall own all right, title and interest, including all related Intellectual Property Rights, in and to all of TrueContext’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) (hereafter, “TrueContext Technology”) made available to Customer by TrueContext in providing the Service, the Professional Services and the TrueContext Technology. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service, the Professional Services, the TrueContext Technology or the Intellectual Property Rights owned by TrueContext and its suppliers. The TrueContext name, the TrueContext logo, and the product names associated with the Service are trademarks of TrueContext or its suppliers, and no right or license is granted to use them. Customer will not accrue any residual rights to the TrueContext Technology, the Professional Services or the Service, including any rights to the Intellectual Property Rights in connection therewith. Customer may be asked to provide suggestions, ideas, recommendations, bug fixes, corrections, or other feedback (“Feedback”) regarding the Service and/or the Professional Services, though Customer is under no obligation to provide Feedback. Customer agrees that if Customer provides Feedback, TrueContext is free to reproduce, make, use, create derivative works of, publicly perform, display, import, transmit, distribute, license, sell, offer to sell, or otherwise dispose of such Feedback without payment of compensation or any other obligation of any kind to Customer.
7. CONFIDENTIALITY; PRIVACY AND SECURITY.
7.1 Exchange of Confidential Information. Each Party acknowledges that, in the course of performing its duties under this Agreement, it may obtain information relating to the other Party (for purposes of this Section 7, the “disclosing party”), which is of a confidential and proprietary nature (“Confidential Information”). Such Confidential Information may include, but is not limited to, the existence and terms of this Agreement, data, reports, specifications, formulae, software programs, technical data, documentation, financial information and projections, corporate strategy, methods of operation, correspondence, or any customer information, personnel information, information about marketing and sales, products or pricing, information systems and any other technology used in the Service, disclosed for the purposes of this Agreement. The Party in receipt of Confidential Information from the disclosing party (for purposes of this Section 7, the “receiving party”), agrees not to disclose such information to any third party and use such Confidential Information for the purposes specified under this Agreement and not for any other purpose. Each Party will keep the Confidential Information of the other Party confidential and in its possession. However, a Party may disclose all or part of the Confidential Information to its employees, contractors and professional advisors on a need-to-know basis relating solely to this Agreement. In such case, the receiving party undertakes to keep and treat such information confidential under terms no less protective than those set forth herein. The provisions of this Section shall not apply to any information or material which: (a) is or becomes public knowledge other than by breach of this Section; (b) is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; (c) is received from a third party who lawfully acquired it and is under no obligation restricting its disclosure; (d) is independently developed without access to the Confidential Information; or (e) is required to be disclosed by any court, tribunal, judicial body or other governmental authority or stock exchange. If the receiving party is required in any judicial or regulatory proceeding to disclose all or any part of the disclosing party’s Confidential Information, it will give the disclosing party prompt written notice of such request prior to disclosure. Upon the request of the disclosing party, the receiving party shall promptly return to the disclosing party all copies of the Confidential Information and shall destroy all memoranda, notes, and other writings prepared by it or any of its employees, contractors or professional advisors based upon or including any of the Confidential Information; however, the receiving party may retain those portions of the Confidential Information that are necessary to document compliance with this Section. The obligations in this Section 7 shall continue for a period terminating on the date five (5) years from the date on which Confidential Information is last disclosed under this Agreement.
7.2 Privacy. The primary purpose of the Service is not to host, process or store personal information of third parties. TrueContext does not actively access, monitor, process or amend such personal information except to the extent requested by Customer in connection with the performance of Support Services and/or as an incidental part of the automated processing performed by the Service. To the extent that Customer uses the Service to upload, host, process or store personal information, Customer is responsible to ensure that such activity complies with all applicable privacy laws, including without limitation: (i) the provision of all necessary notices; and (ii) the receipt of all necessary consents.
7.3 Security. TrueContext uses commercially reasonable measures designed to maintain the security and integrity of the Service and Customer Data. TrueContext regularly engages third party experts to perform independent audits of the Service. Once per calendar year, TrueContext will, upon request, provide assurance reports to Customer at no charge. TrueContext will notify Customer’s designated security contact in the TrueContext Portal of any known breach of its security related to the Service containing Customer Data within seventy-two (72) hours following confirmation of such a breach and will cooperate with Customer, provide timely updates and take remedial actions to address the security breach.
8. WARRANTIES AND DISCLAIMERS.
8.1 Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement. TrueContext warrants that: (i) it owns (or has the authority by license to) all right, title and interest in the Service, sufficient to fulfill its obligations under this Agreement; (ii) it has taken and will take commercially reasonable measures designed to ensure that the Service does not contain any viruses, malicious code or undisclosed features capable of deleting, disabling, deactivating, interfering with or otherwise harming Customer Data; (iii) it will use commercially reasonable physical, organizational and technical measures designed to protect Customer Data against unlawful access, use or disclosure; (iv) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (v) the Service will perform materially in accordance with TrueContext’s Published Documentation under normal use and circumstances; and (vi) it will perform all Professional Services in a professional and workmanlike manner.
8.2 Remedies. Customer’s exclusive remedy and TrueContext’s entire liability for a breach of the warranties set forth in Section 8.1 above shall be as follows: (i) for a breach of the warranties set forth in Section 8.1(iv) and 8.1(v), TrueContext shall correct any material reproducible impairments to the features and functionality in the Service so that it materially conforms to this warranty, and if TrueContext is unable to provide such Service as warranted within thirty (30) days following receipt of written notice of breach from Customer, Customer shall be entitled to terminate the applicable Order Form and receive a pro-rata refund of any prepaid and unused Fees applicable to the remaining portion of the Subscription Term following the effective date of termination; (ii) for a breach of the warranty set forth in Section 8.1(vi), TrueContext shall re-perform the applicable Professional Services, provided that Customer provides TrueContext with written notice of such breach within thirty (30) days of completion of the applicable Order Form and/or Statement of Work.
8.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, CUSTOMER UNDERSTANDS AND AGREES THAT THE SERVICE AND CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND TRUECONTEXT, ITS AFFILIATES, SUPPLIERS, RESELLERS, AND ITS LICENSORS MAKE NO WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SPECIFICALLY, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TRUECONTEXT: (I) DISCLAIMS RESPONSIBILITY FOR ANY CUSTOMER DATA OR PERSONAL INFORMATION THAT IS ACCESSED BY UNAUTHORIZED PERSONS WHEN COMMUNICATED ACROSS THE INTERNET, NETWORK COMMUNICATIONS FACILITIES OR OTHER ELECTRONIC MEANS; AND (II) DOES NOT WARRANT THAT: (A) THE SERVICE AND/OR THE PROFESSIONAL SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; (B) THE SERVICE WILL BE FREE FROM ANY DISABLING CODE; (C) OPERATION OF THE SERVICE WILL BE UNINTERRUPTED; (D) THE SERVICE AND/OR THE PROFESSIONAL SERVICES WILL BE ERROR-FREE; (E) CUSTOMER WILL ENJOY USE OF THE SERVICE WITHOUT INTERFERENCE; (F) ERRORS OR OTHER DEFECTS IN THE SERVICE WILL BE CORRECTED OR WILL BE CORRECTED WITHIN A SPECIFIC PERIOD OF TIME; OR (G) UNAUTHORIZED THIRD PARTIES WILL BE RESTRICTED FROM ACCESSING OR INTERFERING WITH CUSTOMER DATA SENT OR RECEIVED USING THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY. CUSTOMER MAY HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
9.1 Indemnification by TrueContext. Provided that Customer complies with the procedures set forth in Section 9.3, TrueContext shall: (i) defend Customer, at TrueContext’s expense, against any claims, demands, suits or proceedings (“Claims”) made or brought against Customer by an unaffiliated third party alleging that the use of the Service as contemplated in this Agreement directly infringes a U.S. patent, copyright, or trademark of a third party or misappropriates such third party’s trade secrets and (ii) indemnify and hold Customer harmless against all reasonable costs (including reasonable attorneys’ fees) finally awarded against Customer by a court of competent jurisdiction or arbitrator or agreed to in a written settlement agreement signed by TrueContext, in connection with such Claims. Both Parties acknowledge and agree that TrueContext will have no obligation under this Section 9.1 with respect to any claim of infringement arising from (i) use of the Service in a manner not permitted by this Agreement; (ii) the combination of the Service with any services, hardware, data or business processes not provided or authorized in writing by TrueContext; or (iii) modification of the Service other than by or on behalf of TrueContext or with TrueContext’s written approval in accordance with TrueContext’s written specifications. If the Service is held or likely to be held infringing, TrueContext shall have the option, at its sole liability and expense, to (i) replace or modify the Service as appropriate, (ii) obtain a license for Customer to continue using the Service, (iii) replace the Service with a functionally equivalent service; or (iv) terminate the applicable Service and provide a pro-rata refund for any pre-paid but unused Fees of the Subscription Term immediately following the effective date of termination. This Section 9.1 states TrueContext’s entire liability and Customer’s exclusive remedy for any claim of intellectual property infringement.
9.2 Indemnification by Customer. Customer shall indemnify, defend, and hold harmless TrueContext and its subsidiaries and Affiliates from and against any liabilities, costs, damages, fees, or Claims made or brought against TrueContext by an unaffiliated third party arising directly or indirectly out of: (a) Customer’s use of the Service in violation of this Agreement; (b) Customer’s failure to comply with applicable law, including with respect to data privacy and/or the use of personal information; (c) TrueContext’s use of Customer Data in accordance with this Agreement; and/or (iv) TrueContext’s compliance with Customer’s data processing instructions.
9.3 Indemnification Procedure. Promptly upon receiving notice of a Claim, the Party seeking indemnification (the “indemnified party”) under Section 9.1 or 9.2, as appliable, shall: (a) give the indemnifying party prompt written notice of the Claim within twenty (20) days of being served, provided that the indemnified party’s failure to give timely notice shall not relieve the indemnifying party of its indemnification obligation except to the extent that it is prejudiced by such failure; (b) give the indemnifying party sole control of the defense and settlement of the Claim (provided that the indemnifying party may not settle or defend any claim unless it unconditionally releases the indemnified party of all liability); and (c) provide to the indemnifying party, at the indemnifying party’s expense, all reasonable assistance in the defense or settlement of such Claim. A Party’s indemnification obligation shall be offset to the extent its ability to defend or settle a claim is jeopardized by the indemnified party’s failure to comply with the preceding sentence.
10. LIMITATION OF LIABILITY.
10.1 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR ITS LICENSORS FOR ANY LOST PROFITS, LOSS OF DATA OR OTHER ECONOMIC LOSS (INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM A DATA BREACH OR BREACH OF SECURITY, EXCEPT TO THE EXTENT THAT SUCH DAMAGES ARE DIRECTLY ATTRIBUTABLE TO TRUECONTEXT’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT), OR FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES HOWEVER ARISING AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.
10.2 Limitation of Liability. EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS (SECTION 9) OR CUSTOMER’S BREACH OF RESTRICTIONS (SECTION 6.3) (IN EITHER CASE WHERE LIABILITY IS CAPPED AT FIVE TIMES (5X) THE CONTRACT VALUE OF ALL ORDERS MADE UNDER THIS AGREEMENT) OR DAMAGES CAUSED BY A PARTY’S GROSS NEGLIGENCE, WILFUL MISCONDUCT OR FRAUD, IN NO EVENT SHALL EITHER PARTY’S OR ITS LICENSORS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID (OR DUE) FROM CUSTOMER UNDER THE APPLICABLE ORDER FORM OR SOW IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE.
11. GENERAL PROVISIONS.
11.1 Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. TrueContext may have its rights and obligations under this Agreement exercised or performed by third party contractors.
11.2 Notices. All required notices shall be sent in writing and shall be deemed to have been given upon (i) the date it was delivered by courier, (ii) if sent by certified mail return receipt requested, on the date received, or (iii) if sent by email on the date received, in each case addressed as follows: if to TrueContext, to the attention of the Legal Department to the address set forth above, with copy by email to email@example.com, and, if to Customer, to the attention of the signatory of the Order Form(s), or to such other address or individual as the Parties may specify from time to time by written notice to the other Party.
11.3 Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
11.4 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision shall be severed from this Agreement, and the remaining provisions of this Agreement shall remain in full force and effect.
11.5 Assignment. Neither Party may assign any of its rights or obligations under this Agreement, and any attempts at such assignment will be void without prior written consent of the other Party. For purposes of this Agreement, “assignment” shall include use of the Service for benefit of any third party to a merger, acquisition, and/or consolidation by, with, or of Customer, including any new or surviving entity that results from such merger, acquisition and/or other consolidation. Notwithstanding the foregoing, the following shall not be considered “prohibited assignments” for purposes of this Agreement: TrueContext’s assignment of this Agreement or of any TrueContext’s rights under this Agreement to TrueContext’s successor by merger or consolidation or to any person or entity that acquires all or substantially all of its capital stock or assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
11.6 Governing Law and Venue. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of Ontario, without giving effect to its conflicts of laws rules, the United Nations Convention on the International Sale of Goods, or the Uniform Computer Information Transactions Act. Each Party irrevocably submits to the non-exclusive jurisdiction of the courts of Ontario for the purpose of any suit, action or other proceeding arising out of this Agreement or the subject matter hereof. Each of the Parties hereby waives: (a) the right to trial by jury of any such suit, action or proceeding; (b) any right, claim or entitlement to any punitive or exemplary damages whatsoever; and (c) any right, claim or entitlement to participate in a class action relating to this Agreement.
11.7 Third Party Products, Services or Content; Open Source Software. The Service may contain features or functions that enable interoperation with third party products, services, or content. TrueContext may also provide access to third party products, services, or content directly within the Service. With the exception of certain dashboard and/or analytics functionality that may be included in the Service, the terms of service for which are available here and, if included, form part of this Agreement, all other third party products, services, or content, and customer content in third party services, are not part of the Service and are not warranted or supported by TrueContext. Customer’s use of such third party products, services, or content is subject to the terms of the third party provider. Certain open source software included in the Service has been modified by TrueContext and such modifications have been noted by TrueContext in the documentation provided with such open source software.
11.8 Force Majeure. Neither Party shall be responsible for failure or delay of performance to the extent such failure or delay is caused by: an act of war, hostility, sabotage, flood, earthquake, or natural disasters; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated Party; government restrictions (including the denial or cancellation of any export or other license); epidemic, pandemic or other event outside the reasonable control of the obligated Party. Each Party shall use commercially reasonable efforts to mitigate the effect of a force majeure event. If any such force majeure event continues for more than twenty (20) days, either Party may cancel the Service and/or unperformed Professional Services upon written notice (which notice may be made via e-mail to the other Party) provided however that notwithstanding any such cancellation, (i) neither Party is excused of its obligations to take reasonable steps to follow its normal disaster recovery procedures; and (ii) Customer’s obligation to pay for the Service and/or Professional Services remains unchanged.
11.9 Publicity. Customer consents to publication of its name, logo and tradename by TrueContext in a factual listing of customers. Both Parties must approve in writing all other public announcements or other promotional efforts made regarding the terms and conditions of this Agreement, such approval not to be unreasonably withheld.
11.10 Entire Agreement; Counterparts. This Agreement, including all Order Forms and Statements of Work, constitutes the entire agreement between the Parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. For purposes of clarity, any non-disclosure or confidentiality agreement between Parties (if any) is terminated and completely superseded by this Agreement and all information that had been considered “Confidential Information” under such agreement will instead be treated as “Confidential Information” of the relevant Party under this Agreement. The Parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this agreement, express or implied, except for the representations and warranties set forth in this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form or Statement of Work, the terms of such Order Form or Statement of Work shall prevail. No terms or conditions set forth on any Customer, reseller, or other purchase order, quote or preprinted form or document shall add to or vary the terms and conditions of this Agreement, and all such terms or conditions shall be null and void.