Terms and Conditions
This agreement is made effective on the date of the purchase of the technology services between TruPIM (“Licensor”) and the purchaser of the software (“Client”) and shall be governed by the Terms and Conditions attached hereto. Client acknowledges and agrees to be bound by the Terms and Conditions.
TECHNOLOGY SERVICES AGREEMENTS
- Services, Generally. TruPIM shall provide a subscription to TruPIM Software (the “Technology Services”) as set forth in the TruPIM Technology Services Agreement to Client in accordance with these Terms and Conditions (“Agreement”). The parties may, from time to time, enter into Statements of Work (SOWs), and the parties agree that each such SOW shall be governed by these Terms and Conditions whether or not these Terms and Conditions are specifically referenced in such SOW. In the event of a conflict between these Terms and Conditions and a SOW, the SOW shall prevail.
- Access to the Technology Services; Service Level Availability (SLA). During the Term, Client will have full internet browser access to Technology Services. For TruPIM-hosted software, the Client will have no direct access to the TruPIM servers or infrastructure. The Technology Services will be available to Client with an uptime of 99.99% (the “SLA”) provided that the number of minutes that the Technology Services are not available to the Client, will not include (i) any unavailability resulting from: (a) planned outages, scheduled maintenance or pre-arranged, agreed upon downtime with Client; (b) acts or omissions of Client or entities authorized by Client; or (c) a Force Majeure Event. If TruPIM fails to meet the SLA in any calendar month, at Client’s request, TruPIM will credit to Client’s account the pro-rated charges for one (1) day of the Technology Services Fees with respect to which the SLA has not been met which credit shall not be reimbursable in cash to Client; provided, however, that Client may obtain no more than one (1) credit per month, irrespective of how often in that month TruPIM failed to meet the SLA. Should TruPIM fail to meet the SLA for two (2) consecutive months, or for any four (4) months in a calendar year, Client may terminate this Agreement without penalty.
- Software Maintenance. TruPIM shall make available to the Client each new Update of the Technology Services that is made generally available by TruPIM to TruPIM Clients at no additional separately stated software charge at such time as such Update is made generally available to TruPIM Clients, provided that Client is current with Technology Services Fees. Such Updates include New Releases, but not new products for which there is a separate charge. TruPIM may also provide “Patch Releases” that TruPIM, in its sole discretion, makes available. Patch Releases are intended to address material deviations between the Technology Services and the User Manual description until an Update can be made available.
- On-Site or Remote Assistance. Upon the mutual agreement of the parties, TruPIM shall furnish qualified personnel for on-site or remote assistance to the Client. In such event the Client shall pay TruPIM at TruPIM’s then-current time and materials rates for such on-site or remote assistance services and shall reimburse TruPIM for reasonable travel and living expenses incurred in connection with providing any on-site assistance services.
- Term/Termination. (a) This Agreement, and Client’s ability to request additional Technology Services from TruPIM, shall commence on the execution date of this Agreement and any applicable SOW(s) (the “Commencement Date”) and shall continue thereafter for twelve (12) months (the “Commitment Term”) unless earlier terminated as provided herein. If Client is not in default of any of its obligations hereunder, including but not limited to its obligation to pay fees to TruPIM, this Agreement and all applicable SOWs will automatically renew for successive twelve (12) month renewal periods (each a “Renewal Term”) after the conclusion of the Commitment Term or Renewal Term then in effect on the same terms and conditions, unless either party sends to the other a written notice of non-renewal at least ninety (90) days prior to the date of commencement of each Renewal Term. The Commitment Term and any Renewal Term(s) shall each be referred to as the “Term” of this Agreement. Technology Services fees are due in full for the intended Commitment Term regardless of the date when the written notice of non-renewal was provided.
(b) TruPIM may terminate this Agreement and the applicable SOW(s) and cease performance of the Technology Services (including, without limitation, (i) Client’s ability to request additional Technology Services, and (ii) any Technology Services then active) if Client defaults in the performance of, or breaches any of its obligations under, the Agreement or the applicable SOW, and has not cured such default or breach within thirty (30) days of notice thereof (to the extent that such default or breach is curable). Notwithstanding the foregoing, TruPIM may suspend the Technology Services (including, without limitation, any and all active Technology Services) immediately (i) in the event that TruPIM reasonably determines that one or more acts have violated Client’s obligations pursuant to the Agreement or the applicable SOW, and/or (ii) upon the occurrence of a Force Majeure Event.
(c) TruPIM may also terminate this Agreement and Client’s ability to request the additional Technology Services at any time by providing Client with thirty (30) days prior written notice; provided, however, that (i) any termination pursuant to this Section 6(c) shall not be effective with respect to the Commitment Term of any Technology Services that have commenced but have not yet elapsed, and (ii) Client shall not have the right to request the extension of any Commitment Term then in effect with respect to any SOW(s).
(d) Client may terminate this Agreement and the applicable SOW(s) if TruPIM defaults in the performance of, or breaches any of its obligations under, the Agreement, and has not cured such default or breach within thirty (30) days of notice thereof (to the extent that such default or breach is curable).
(e) All rights and licenses granted to Client under this Agreement shall terminate immediately upon the expiration or termination of this Agreement. Client shall erase, destroy or return to TruPIM, and provide written certification to TruPIM with respect to, all copies of the Technology Services, documentation and Confidential Information of TruPIM and, upon TruPIM’s request, Client shall warrant compliance with this subsection (e) in writing within thirty (30) days of expiration or termination of this Agreement.
- Point of Contact. Client shall notify TruPIM (by emailing [email protected]) the name of the designated Point of Contact who shall be, throughout the Term, (a) an employee of Client, and (b) the authorized and designated point of contact of Client to communicate with TruPIM with respect to the Agreement and the use of the Technology Services, and Client shall timely notify TruPIM in the event of replacement.
- Ownership Rights. Client acknowledges and agrees that the TruPIM software is proprietary to TruPIM and is protected by applicable intellectual property and other laws. If Client is not in default of any of its obligations hereunder including its obligation to pay fees to TruPIM, TruPIM acknowledges that Client has the right to request electronic versions of the Client’s product data, and grants Client full rights to use such data. TruPIM acknowledges that it makes no claims to rights, title or interest in Client’s content as provided to TruPIM in its performance of the Technology Services. All rights, title and interest in Client’s content remain the property of Client.
- Disclaimer of Warranties; Exclusive Remedy; Client Warranties. (a) Although TruPIM has implemented certain measures designed to ensure the proper operation and integrity of the Technology Services, TruPIM does not warrant or represent that access to or use of the Technology Services will be error-free, uninterrupted, completely secure, free from viruses, bugs or other harmful code (collectively, “Harmful Code”) or that the use of the Technology Services will meet Client’s requirements. The Technology Services are provided “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. In furtherance of the foregoing, and not by way of limitation, TruPIM will not be responsible for: (i) impairments caused by: (1) use of the Technology Services in a manner inconsistent with the Specifications (as hereinafter defined), or (2) acts within the control of Client, (ii) the inability of Client to access or interact with any other service provider through the Internet, other networks or users that comprise the Internet or the informational or computing resources available through the Internet, (iii) performance impairments caused elsewhere on the Internet, (iv) performance impairments resulting from Client’s use of hardware and software not recommended by TruPIM, and/or (v) any and all errors and/or omissions relating to any third parties who may perform services for Client pursuant to this Agreement (collectively, the “Third Party Services”).
TRUPIM EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OF USE, NONINFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE) TO THE FULLEST EXTENT PERMITTED BY LAW, WHETHER RELATED TO THE TECHNOLOGY SERVICES, THE LANGUAGE SERVICES, THE THIRD PARTY SERVICES, OR OTHERWISE.
(b) Client acknowledges and agrees that (i) TruPIM has provided it with a demonstration or free trial of the Technology Services prior to Client’s execution of the Agreement, and (ii) Client has had adequate time to confirm that the Technology Services conform to the TruPIM’s then-current specifications (the “Specifications”), the non-conforming components of the Technology Services will be reported to TruPIM. TruPIM shall (provided that Client is not then in breach of the Agreement), at TruPIM’s option and as Client’s sole and exclusive remedy: (y) use commercially reasonable efforts to remedy the non-conforming component of the Technology Services, and/or (z) credit to Client the amount it has paid for such non-conforming component of the Technology Services for the period of time such component was non-conforming.
(c) To the extent that Client deposits information, documents or other materials with TruPIM (collectively, the “Client Materials”) as part of TruPIM’s performance of the Services, Client warrants and represents that it owns the Client Materials or has been authorized to deposit them on TruPIM’s servers and to make them available to the internet through the Technology Services without infringing or misappropriating any intellectual property rights including, but not limited to, any patent, copyright, trademark, trade secret, rights of publicity and privacy, or other proprietary or contractual right. Client further warrants and represents that the Client Materials are (i) free from Harmful Code, (ii) do not violate any applicable law, regulation or ordinance, (iii) are not defamatory, harmful to minors or obscene. Client assumes all risks, and TruPIM shall not be responsible or liable to Client for, the disclosure, distribution, replacement of, loss or damage to the Client Materials, or for damage caused to Client by Harmful Code, or for use by third parties of the Client Materials, whether or not authorized by Client, and/or the Administrator.
- Limitation on Damages; Limitation of Liability; Restriction on Actions; Client Acknowledgement. (a) IN NO EVENT SHALL TRUPIM BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT OR ANY SOW HEREUNDER INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF SAVINGS OR THE FAILURE OF CLIENT TO RECEIVE THE BENEFITS IT EXPECTS TO DERIVE FROM THE LICENSE, EVEN IF TRUPIM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE. IN FURTHERANCE OF THE FOREGOING, TRUPIM SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, LOSS OR DESTRUCTION OF ANY DATA, INCLUDING THE CLIENT MATERIALS, EQUIPMENT OR THE SERVICES, WHETHER THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD. (b) IN THE EVENT THAT CLIENT IS ENTITLED TO RECOVER DAMAGES FROM TRUPIM, ALL DAMAGES ARE LIMITED, REGARDLESS OF CAUSE, TO A MAXIMUM AGGREGATE AMOUNT EQUAL TO THE AMOUNT OF FEES ACTUALLY PAID BY CLIENT TO TRUPIM FOR THE TECHNOLOGY SERVICES GIVING RISE TO SUCH LIABILITY. (c) No action relating to this Agreement may be brought by Client more than six (6) months after the cause of action occurred. (d) Client acknowledges that: (i) TruPIM has relied on the enforceability of the disclaimers and limitations contained in Sections 9 and 10, respectively, in entering into the Agreement (collectively, the “Limitations”), (ii) the Limitations have been separately negotiated and form an essential part of the Agreement between the parties, and (iii) the parties desire that the Limitations be enforceable even if any provided remedies fail of their essential purposes.
- Indemnification. Client shall indemnify, defend and hold harmless TruPIM from and against any and all claims, damages, losses, judgments, settlements, liabilities, costs and expenses (including reasonable attorneys’ fees) relating or arising out of, directly or indirectly, to: (a) any materials, data or information provided to TruPIM by Client, including, without limitation, the Client Materials, and the use of, or access to, such Client Materials by Client and/or any third parties, (b) the breach by Client of this Agreement, the SOW, or any of Client’s representations, warranties, covenants and agreements contained herein, (c) the use of the Technology Services by Client not in accordance with this Agreement, the applicable SOW, and the Specifications, (d) any and all acts and/or omissions of the Administrator and other employees, representatives, independent contractors, and agents of Client, and/or (e) any and all breaches of any third-party agreements by and among Client. “TruPIM” shall mean TruPIM, its affiliates, and all of their respective owners, shareholders, officers, directors, employees, licensors, representatives and agents. Client’s obligation to defend, indemnify and hold harmless TruPIM is subject to TruPIM: (i) notifying Client in writing no later than forty-five (45) days after receipt by TruPIM of notification of a potential claim; (ii) giving Client sole control over the defense and settlement of any such claim; (iii) providing Client full cooperation for the defense of any such claim, at Client’s expense; and (iv) not entering into any settlement or compromise of any such claim without Client’s prior written approval.
- Non-Exclusive Licenses. The parties acknowledge that the Agreement is not an exclusive agreement and TruPIM may provide the Technology Services to third parties without Client’s prior consent.
- Joint marketing and publicity TruPIM and client agree to implement the following marketing objectives below:
a. Completion of product/customer satisfaction survey after project completion.
b. Case study and testimonial after project completion.
c. Permission to list the Client’s logo, company name and website link within a list or collection of TruPIM clients and social media handles.
d. Reference Calls. Reference calls may occur immediately upon contract signature and could include one or more key client personnel involved in the project.
e. Immediately upon execution of this SOW, TruPIM may issue a Press Release that will be reviewed and approved by the client.
f. TruPIM is permitted from time to time to seek publicity opportunities that represent a mutual benefit to both the Client and TruPIM. These opportunities may include articles in newspapers or other public information sources, speaking engagements at conferences, and press briefings. The Client will have the opportunity to accept or decline participation in each individual opportunity.
- Reference. Client agrees to serve as a reference for TruPIM and the Technology Services on occasions where prospective and current TruPIM clients may request to speak with other clients, provided that TruPIM shall seek Client’s consent before referring any clients to Client.
- Dispute Resolution. TruPIM and Client will each use reasonable efforts to resolve a claim or controversy arising out of this Agreement through consultation and negotiation in good faith and a spirit of mutual cooperation. The parties agree that any dispute between them relating to this Agreement will first be submitted in writing to a panel consisting of one (1) executive from Client and one (1) executive from TruPIM, who will promptly meet and confer in an effort to resolve such dispute. Each party’s executive will be identified by notice to the other party. Any mutual decisions of those executives to compromise the dispute will be final and binding on the parties. Nothing in this Section 17 will prevent TruPIM from applying for interim relief from a court of competent jurisdiction if interim relief is necessary to prevent serious and irreparable injury to it and/or the Technology Services for which monetary damages may be an inadequate remedy.
- Miscellaneous. Client may not assign this Agreement or any of its rights or licenses hereunder, and any purported assignment by Client shall be void. If any part of this Agreement is held to be invalid or unenforceable, that part will be enforced to the maximum extent permitted by law, and the remainder of this Agreement will remain in full force and effect. The following sections shall survive the termination or non-renewal of this Agreement: Fees and Charges, Term/Termination, Ownership Rights, Disclaimer of Warranties; Exclusive Remedy; Client Warranties, Limitation on Damages; Limitation of Liability; Restriction on Actions; Client Acknowledgement, Indemnification, Dispute Resolution, Miscellaneous, Injunctive Relief, Non-Solicitation and Confidential Information. In this Agreement, the word “or” is not exclusive and the word “including” is not limiting (whether or not non-limiting language such as “without limitation” or “but not limited to” or other words of similar import are used with reference thereto) and the headings to the sections of this Agreement are inserted for convenience of the parties only, do not form a part of this Agreement and are not intended to interpret, define or limit the scope, extent or intent of this Agreement or any terms or conditions hereof. References to “days” in the Agreement shall refer to calendar days.
- GDPR Compliance. In order for the parties to comply with the EU Data Protection Directive (95/46/EC) and/or Regulation EU 2016/679 (the “GDPR”), Client acknowledges and agrees that it shall notify TruPIM in writing at such time as Client provides any documents or information to TruPIM containing “personal data” of European citizens (a “GDPR-Governed Project”). The parties further agree that for any GDPR-Governed Projects, the parties will execute a Data Protection Addendum Addressing Article 28 GDPR (Processor Terms) and Incorporating Standard Contractual Clauses for Controller to Processor Transfers of Personal Data from the EEA to a Third Country (the “GDPR Addendum”).
- Injunctive Relief. It is expressly agreed that a material breach of this Agreement shall cause irreparable harm to TruPIM and that a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, TruPIM shall be entitled to obtain timely injunctive relief or other equitable remedies to protect TruPIM’s rights under the Agreement in addition to any and all other remedies available at law.
- Non-Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, Client and TruPIM agree not to solicit, encourage or cause others to solicit or encourage any employees of the other party to terminate their employment with the other party, except that personnel who are hired pursuant to a party’s general recruiting processes and advertising shall not be considered to have been “solicited” or “encouraged.”
- Confidential Information.
22.1 Scope. For purposes of this Agreement, “Confidential Information” shall mean all nonpublic information, whether in oral, written or other tangible form that the party disclosing the information (the “Discloser”) designates as being confidential or which, under the circumstances surrounding disclosure, the receiving party (the “Recipient”) knows or has reason to know should be treated as confidential, including without limitation pricing information and the terms and conditions of this Agreement.
22.2 Nondisclosure Obligations. Each of the parties, as Recipient, agrees that such Recipient shall not use, disseminate, or in any way disclose any Confidential Information of the other party, as Discloser, to any person, firm or business, except to the extent necessary for the performance of such party’s obligations hereunder, and for any other purpose such Discloser may hereafter authorize in writing. Each of the parties, as Recipient, agrees that such Recipient shall treat all Confidential Information of the other party, as Discloser, with the same degree of care as such Recipient accords to such Recipient’s own Confidential Information, but in no case less than reasonable care. Each of the parties, as Recipient, agrees that such Recipient shall disclose Confidential Information of the other party, as Discloser, only to those of such Recipient’s employees and independent contractors who need to know such information, and such Recipient certifies that such Recipient employees and/or independent contractors have previously agreed, either as a condition to employment or in order to obtain the Confidential Information of the Discloser, to be bound by confidentiality terms and conditions substantially similar to those terms and conditions applicable to such Recipient under this Agreement. Each of the parties, as Recipient, shall immediately give notice to the other party, as Discloser, of any unauthorized use or disclosure of Discloser’s Confidential Information. Each of the parties, as Recipient, agrees to assist the other party, as Discloser, in remedying any such unauthorized use or disclosure of Discloser’s Confidential Information.
22.3 Exclusions. The obligations under Paragraph 24.2 (“Nondisclosure Obligations”) of each of the parties, as Recipient, with respect to any portion of the Confidential Information of the other party, as Discloser, shall not apply to such portion that such Recipient can document: (i) was in the public domain at or subsequent to the time such portion was communicated to such Recipient by such Discloser through no fault of such Recipient, (ii) was rightfully in such Recipient’s possession free of any obligation of confidence at or subsequent to the time such portion was communicated to such Recipient by such Discloser, (iii) was developed by employees or agents of such Recipient independently of and without reference to any information communicated to such Recipient by such Discloser, or (iv) was communicated by such Discloser to an unaffiliated third party free of any obligation of confidence. A disclosure by each of the parties, as Recipient, of Confidential Information of the other party, as Discloser, either (i) in response to a valid order by a court or other governmental body or (ii) otherwise required by law, shall not be considered to be a breach of this Agreement by such Recipient or a waiver of confidentiality for other purposes; provided, however, such Recipient shall provide prompt prior written notice thereof to the Discloser to enable such Discloser to seek a protective order or otherwise prevent such disclosure.
- Arbitration. If any dispute arises between the Client and TruPIM at any time, in connection with the validity, interpretation, implementation or alleged breach of any provision of this Agreement, the same shall be referred to a sole Arbitrator who shall be an independent and neutral third party appointed exclusively by TruPIM. The Client shall not object to the appointment of the Arbitrator so appointed by TruPIM. The place of arbitration shall be Houston, Texas, USA. The arbitration proceedings shall be held in the English language.
- Electronic Signature Agreement. By selecting the “I Accept” button, you are signing this Agreement electronically. You agree your electronic signature is the legal equivalent of your manual signature on this Agreement. By selecting “I Accept” you consent to be legally bound by this Agreement’s terms and conditions. You further agree that your use of a key pad, mouse or other device to select an item, button, icon or similar act/action, or to otherwise provide TruPIM or in accessing or making any transaction regarding any agreement, acknowledgement, consent terms, disclosures or conditions constitutes your signature (hereafter referred to as “E-Signature”), acceptance and agreement as if actually signed by you in writing. You also agree that no certification authority or other third party verification is necessary to validate your E-Signature and that the lack of such certification or third party verification will not in any way affect the enforceability of your E-Signature or any resulting contract between you and TruPIM. You also represent that you are authorized to enter into this Agreement for all persons who own or are authorized to access any of your accounts and that such persons will be bound by the terms of this Agreement. You further agree that each use of your E-Signature in obtaining TruPIM Technology Services constitutes your agreement to be bound by the terms and conditions of the TruPIM Technology Services Agreement.