Terms and Conditions
STANDARD TERMS OF SERVICE
Trendzact WMR Standard Terms of Service (“STOS”)
Effective Date October 01, 2023
Change Log
2023-08-30 added 10DLC SMS Terms and Conditions
2023-09-04 updated 10DLC SMS Terms and Conditions
2023-09-12 updated 10DLC SMS Terms and Conditions
2023-10-01 updated language for GDPR compliance
Please read these Terms and Conditions (“Terms”, “Terms and Conditions”) carefully before using the http://trendzact.com/ website or any products and services (the “Service”) operated by Trendzact, as used herein, “Trendzact” means Trendzact Inc (also “us”, “we”, or “our”), a State of Delaware USA corporation. “You” or “your” means the person or company set forth on the Order Form. Capitalized terms used in this Agreement will have the meanings set forth above, in the Order Form, or in Exhibit A attached hereto.
Introduction
Trendzact provides workplace monitoring services that organizations may use to confirm end user identity verification and validate workspace data security compliance standards. Such methods include viewing (a) stored images of an end users’ workspace and all therein and/or (b) stored images of an end users’ workstation computer display screen and/or (c) end users’ workstation computer hardware metadata that are periodically captured during designated times and intervals, and/or (d) certain other content and information (collectively referred to herein as “Content”). Trendzact provides these services solely on the terms and conditions set forth in this Agreement. You accept the terms and conditions of this Agreement by executing the Order Form, which expressly incorporates these Standard Terms of Service. Please carefully read and understand these Standard Terms of Service before you execute the Order Form because you will be legally bound by the terms and conditions of this Agreement by executing the Order Form.
Your access to and use of the Service is conditioned upon your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who wish to access or use the Service.
By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms then you do not have permission to access the Service.
These Standard Terms of Service (“STOS”), together with the Order Form, (collectively, the “Agreement”) contain the terms that govern your access to and use of the Services.
Communications
By creating an Account on our service, you agree to subscribe to newsletters, marketing or promotional materials and other information we may send. However, you may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or instructions provided in any email we send.
Privacy Policy
Your privacy is important to us. Your information will be used as described in our Privacy Policy, available at https://trendzact.com/privacy-policy/.
10DLC SMS Terms and Conditions
Introduction. This document outlines the terms and conditions for SMS communications sent via Trendzact’s 10DLC numbers. By opting into our SMS service, you agree to these terms and conditions. Carriers are not liable for delayed or undelivered messages. The brand ‘Trendzact’ uses the following campaign names with associated program description:
‘Solution Savant’ an automated knowledgebase solution generator,
‘Solver Sage’ an automated knowledgebase solution generator, and
‘Secure Virtual Meetings’ a secured hosted virtual meeting solution.
Opt-In Procedure. To opt-in to our SMS service, text STOP to 208-451-2014. You may also opt-in through our website or mobile application by providing your mobile number and confirming your subscription.
Message Frequency. Message frequency will vary based on your preferences and selections
Costs. Message and data rates may apply. Check with your mobile carrier for details.
Opt-Out Procedure. To opt-out of our SMS service, text STOP to 208-451-2014 at any time. You will receive a confirmation message confirming your opt-out.
Support/Help. For support or information about our SMS service, text HELP to 208-451-2014 or contact our customer service at [email protected].
Subscription
Access During the Term. Subject to the terms and conditions of this Agreement, Trendzact will use commercially reasonable efforts to provide the services set forth on the Order Form (the “Services”), for which you paid to access, in accordance with our then-current service level agreement, as amended from time to time.
Access Credentials and Authorized Users. You and your Authorized Users will create your own password(s), and may receive additional Access Credentials, which must be used to access and use the Services. You agree that any information you provide in creating login accounts is complete and accurate, and you agree to keep it up to date. Each Authorized User who accesses the Services through your login account(s) must be your employee, consultant, contractor, or agent. Authorized User subscriptions are for named Authorized Users only and cannot be shared or used by more than one Authorized User but may be transferred to new Authorized Users from Authorized Users who no longer require ongoing use of the Services, for example, when the employee is replaced by a new employee. By creating a login account to access the Services, you agree to subscribe to newsletters, marketing or promotional materials, and other information we may send. However, you may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or instructions provided in any communications that we send to you.
Anonymous Data and Program Data. We may collect content, data, or information aggregated from use of the Services that does not identify or otherwise permit the identification of you or any Authorized Users with respect to the use of the Services, such as performance metrics and usage trends. We may use and disclose such data for statistical analysis, financial analysis, benchmarking, and other purposes, in our sole discretion.
Subcontractors. We may from time to time in our discretion engage third parties to perform the Services, including, without limitation, using third parties to provide hosting, data storage, technical support, or other services.
Changes to the Services. We reserve the right, in our sole discretion, to make any changes to the Services that we deem necessary or useful including, without limitation, to: (a) maintain or enhance (i) the quality or delivery of Services to our customers, (ii) the competitive strength of or market for the Services or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable laws, rules, directives, regulations, and other requirements of government and regulatory authorities, including, without limitation, employment and privacy related laws (collectively, “Laws”).
Changes to the Standard Terms of Service. We may revise and update these Standard Terms of Service from time to time in our sole discretion by (1) posting the amended Standard Terms of Service on our website; or (2) notifying you of any material changes by either (i) sending an email to you or (ii) posting a notice of the amended Standard Terms of Service in the Services. All changes are effective within thirty (30) days of when we post them on our website or otherwise notify you of the changes. By continuing to access or use the Services after we have provided you with notice of such changes, you agree to be bound by the amended Standard Terms of Service unless you notify us in writing that you do not agree to the amended Standard Terms of Service within thirty (30) days of the effective date of the changes. We may immediately suspend or terminate the Agreement upon notice to you if you do not agree to the amended Standard Terms of Service.
Assistance. You will: (i) respond promptly to any reasonable requests from Trendzact for instructions, information, or approvals required by Trendzact to provide the Services; (ii) reasonably cooperate with Trendzact in its performance of the Services; and (iii) take all steps reasonably necessary, including obtaining any required licenses or consents, to prevent customer-caused delays in Trendzact’s provision of the Services.
Acknowledgements and Consents. You will (i) inform all of your Authorized Users, including, without limitation, any and all Persons monitored through the use of the Services, of the Services and their purpose, including, without limitation, the Content that may be collected, stored, and used through the use of the Services and (ii) secure each Person’s digital acknowledgement and consent to the Services upon their first login. Exhibit B, is a current version of the “Trendzact Workspace Monitoring and Response Privacy Policy” and it can be updated from time-to-time without notice.
Controls. You will employ all physical, administrative, and technical controls, screening and security procedures, and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the access and use of the Content. Without limiting the foregoing, you will use the Services solely (a) on a device or devices owned by you or on devices of Persons that you have express permission to monitor, and (b) at times and for purposes reasonably related to monitoring the performance of their employment obligations.
Limitations. You will not and will not enable or knowingly allow any Person to, access or use the Services except as expressly permitted by this Agreement and the Documentation. For purposes of clarity and without limiting the generality of the foregoing, you will not, except as this Agreement expressly permits: (i) modify, copy, create derivative works, reproduce, or improve the Services in whole or in part; (ii) reverse engineer, decompile, disassemble, decode, adapt or otherwise attempt to derive or gain access to the source code form or structure of the Services software; (iii) bypass or breach any security device or protection used by the Services other than by an Authorized User through the use of his or her own then valid Access Credentials, attempt to gain unauthorized access to the Services, or perform any penetration testing or security scans of the Services; (iv) use the Services as a competitor or use the Services for competitive analysis or the development, provision, or use of a competing service or product or any other purpose that is to our detriment or commercial disadvantage; (v) provide, rent, lease, lend, license, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services to any Person, including on or in connection with the Internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (vi) input, upload, transmit, or otherwise provide to or through the Services, any information or materials that are unlawful or injurious; (vii) remove, delete, alter or obscure any proprietary notices or labels displayed on the Services; (viii) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services or our provision of services to any third party, in whole or in part; (ix) access or use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other subscriber), or that violates any applicable Law; (x) harass, threaten, intimidate, impersonate, or attempt to impersonate any other Person; (xi) sell, share, or otherwise transfer your account username, password, or other information, or your rights or obligations under this Agreement except as expressly permitted by this Agreement; or (xii) use the Services for any unlawful purpose. You will ensure that your Authorized Users comply with this Agreement, use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and use the Services only in accordance with the Documentation and applicable Laws.
Responsibility For Use Of Services. You are solely responsible and liable for (a) all uses of (i) the Services and Content by you and your Authorized Users, (ii) the Content by Trendzact in accordance with the terms of this Agreement, and (iii) any and all acts and omissions by you and your Authorized Users relating to the Services and Content, whether such acts or omissions are permitted by or in violation of this Agreement or applicable Laws; (b) all information, instructions, and materials provided by or on behalf of you and any Authorized User in connection with the Services; (c) your information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by you or through the use of third-party services (“Your Systems”); (d) the security and use of you and your Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Content directly or indirectly by or through Your Systems or your or your Authorized Users’ Access Credentials, with or without your knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use. When you create an account with us, you guarantee that you are above the age of 18, and that the information you provide us is accurate, complete, and current at all times. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your account on the Service. You are responsible for maintaining the confidentiality of your account and password, including but not limited to the restriction of access to your computer and/or account. You agree to accept responsibility for any and all activities or actions that occur under your account and/or password, whether your password is with our Service or a third-party service. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account. You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than you, without appropriate authorization. You may not use as a username any name that is offensive, vulgar or obscene. You are responsible for maintaining the confidentiality of your account and password, including but not limited to the restriction of access to your computer and/or account. You agree to accept responsibility for any and all activities or actions that occur under your account and/or password, whether your password is with our Service or a third-party service.
Fees and Expenses.
Fees. The Subscription Fees and any other charges incurred in connection with the Subscription (including any applicable taxes) at the rates in effect when the charges were incurred and payable in the manner set forth on the Order Form. As a general matter, all fees and charges are non-refundable except as may be expressly set forth on the Order Form. We may change the fees and charges then in effect, or add new fees or charges, by giving you reasonable prior notice of any change in Subscription fees to give you an opportunity to terminate your Subscription before such change becomes effective. Your continued use of the Service after the Subscription fee change comes into effect constitutes your agreement to pay the modified Subscription fee amount.
Renewal. The Subscription will renew automatically, except as set forth in the manner set forth on the Order Form. or unless Trendzact terminates it in accordance with this Standard Terms of Service. For annual subscriptions, you must cancel the Subscription before it renews in order to avoid billing of subscription fees for the renewal term to your credit card. We will accept notification of your decision not to renew by e-mail (receipt of which must be confirmed by email reply from us) Any renewal of the Services will not be effective until the fees for such renewal have been paid in full.
Taxes. You will be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by you hereunder; provided, that, in no event will you pay or be responsible for any taxes imposed on, or regarding, Trendzact’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
Late Fees. You will (a) pay interest on past due amounts at the rate of 1.0% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (b) reimburse us for all costs incurred by us in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.
Suspension. In addition to all other remedies available under this Agreement, at law, or in equity (which Trendzact does not waive by the exercise of any rights hereunder), Trendzact will be entitled to suspend the provision of any Services if you fail to pay any amounts when due hereunder.
Intellectual Property Ownership. You acknowledge and agree that you do not acquire any ownership interest in the Services under this Agreement, or any other rights thereto, other than to use the same in accordance with and subject to all terms, conditions, and restrictions under this Agreement. Trendzact reserves and will retain its entire right, title, and interest in and to the Services and all Intellectual Property Rights arising out of or relating to the Services. You will safeguard all Services from infringement, misappropriation, theft, misuse, or unauthorized access. The Service and its original content (excluding Content provided by users), features and functionality are and will remain the exclusive property of Trendzact and its licensors. The Service is protected by copyright, trademark, and other laws of both the United States and foreign countries. Our trademarks and trade dress may not be used in connection with any product or service without the prior written consent of Trendzact.
Ownership. The text, graphics, images, video, design, organization, compilation, look and feel, advertising and all other protectable intellectual property (the “Content”) available through the Subscription is our property or the property of our advertisers and licensors and is protected by copyright and other intellectual property laws. Access and use of the Subscription is limited as follows:
Subscription shall only be for commercial use and the Subscription or any Content cannot shared with any other individual or subcontractor.
Information may not be forwarded, distributed, published, sold, or otherwise provide access to the emails or Content received through the Subscription to anyone, excluding other authorized and licensed users..
Content may not be rearranged or modified or abstracts for another web site, app, product or service. You may not post any Content to weblogs, newsgroups, mail lists or electronic bulletin boards, without our written consent.
The Subscription may not be used for any unlawful purpose. Trendzact reserves the right to terminate or restrict your access to the Subscription if, in our opinion, your use of the Subscription may violate any laws, regulations or rulings, infringe upon another person’s rights or violate the terms of this Agreement.
Contribution
Our Service might allow you to post, link, store, share and otherwise make available certain information, text, graphics, videos, or other material (“Contribution”). You are responsible for the Contribution that you post on or through the Service, including its legality, reliability, and appropriateness.
By posting Contribution on or through the Service, You represent and warrant that: (i) the Contribution is yours (you own it) and/or you have the right to use it and the right to grant us the rights and license as provided in these Terms, and (ii) that the posting of your Contribution on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. We reserve the right to terminate the account of anyone found to be infringing on a copyright.
You retain any and all of your rights to any Contribution you submit, post or display on or through the Service and you are responsible for protecting those rights. We take no responsibility and assume no liability for Contribution you or any third party posts on or through the Service. However, by posting Contribution using the Service you grant us the right and license to use, modify, publicly perform, publicly display, reproduce, and distribute such Contribution on and through the Service. You agree that this license includes the right for us to make your Content available to other users of the Service, who may also use your Contribution subject to these Terms.
Contribution found on or through this Service are the property of Trendzact or used with permission. You may not distribute, modify, transmit, reuse, download, repost, copy, or use said Content, whether in whole or in part, for commercial purposes or for personal gain, without express advance written permission from us.
Trendzact has the right but not the obligation to monitor and edit all Contribution provided by users.
Trendzact does not undertake to review your Content but, notwithstanding anything in this Agreement to the contrary, reserves the right to (a) take appropriate legal action, including without limitation, referral to or cooperation with law enforcement and (b) terminate or suspend the Services, for any actual or apparent illegal activity relating to the Content. YOU WAIVE AND HOLD HARMLESS TRENDZACT FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY TRENDZACT DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER YOU OR LAW ENFORCEMENT AUTHORITIES.
Feedback. You may provide and we may solicit suggestions, ideas, comments, input, or other feedback relating to the Services, including without limitation new features or functionality relating thereto (collectively, “Feedback”). You agree that all Feedback is and will be given entirely voluntarily. You hereby assign to Trendzact all right, title, and interest in, and Trendzact is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Trendzact is not required to use any Feedback.
Privacy Policy. User data and other information is subject to our Privacy Notice. We will, in handling and using your Content and Confidential Information, use commercially reasonable efforts to maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Content and Confidential Information that are consistent with industry standards for similar services and our privacy policy, as amended from time to time. Information may be stored and processed in the United States or any other country where Trendzact has processor facilities, and by subscribing to the Subscription, you consent to the potential transfer of information outside of your country.
Confidentiality. The Receiving Party (a) will hold the Disclosing Party’s Confidential Information in strict confidence; (b) will not disclose the Confidential Information to any third party and will implement practices and procedures as necessary to prevent such disclosure, which steps will include at least those taken by the Receiving Party to protect its own confidential information of like kind; and (c) will use Confidential Information only as expressly authorized by this Agreement or otherwise in writing by the Disclosing Party. The Receiving Party will promptly notify the Disclosing Party in writing of any unauthorized use or disclosure of any Confidential Information. The obligation of nondisclosure in this Agreement will not be breached by disclosure required in a judicial proceeding or governmental investigation, provided that the Receiving Party gives the Disclosing Party prior written notice of such requirement and affords the Disclosing Party an opportunity to oppose such disclosure or seek a protective order or to otherwise protect its interests. All Confidential Information and any modifications, enhancements, or improvements thereto will remain the property of the Disclosing Party and, except as expressly provided herein, no license or other rights to such Confidential Information or any such modifications, enhancements or improvements is granted or implied hereby.
Links To Other Web Sites. Our Service may contain links to third party web sites or services that are not owned or controlled by Trendzact. Trendzact has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third party web sites or services. We do not warrant the offerings of any of these entities/individuals or their websites. You acknowledge and agree that Trendzact shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third party web sites or services. We strongly advise you to read the terms and conditions and privacy policies of any third party web sites or services that you visit.
Suspension or Termination of Services. In addition to any express suspension right set forth elsewhere in this Agreement, we may, directly or indirectly, by any lawful means, suspend, terminate, or otherwise deny your, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) we receive a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires us to do so; or (b) we believe, in our discretion, that you or any Authorized User: (i) has failed to comply with any term of this Agreement or applicable Law; (ii) has accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any Documentation; or (iii) you or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; (c) your use of the Services disrupts, or threatens to disrupt, use of the Service by other subscribers; or (d) this Agreement expires or is terminated. This Section 7.5 does not limit any of Trendzact’s other rights or remedies whatsoever, including any rights or remedies at law, in equity or under this Agreement. If you wish to terminate your account, you may simply discontinue using the Service. All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Limited Warranties. Trendzact warrants that it will perform the Services (i) in accordance with the terms and conditions set out in the Sales Order Form and this Agreement; (ii) using personnel of commercially reasonable skill, experience, and qualifications; and (iii) in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services. Your sole remedy, and Trendzact’s sole and entire liability, for a breach of these warranties will be, in Trendzact’s sole discretion, (a) repair or re-performance of the Services, or (b) credit or refund of the price for the Services at the pro rata contract rate. When hosting the Services is provided by Client, the Client is wholly responsible for all hosting fees and resources to maintain the Services. For clarity, Trendzact is not responsible for any expected or unexpected costs for hosting the Services through the Term of the Agreement.
DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8.1, THE SERVICES ARE PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TRENDZACT, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, TRENDZACT PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW: IN NO EVENT WILL TRENDZACT OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SERVICES; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT TRENDZACT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL TRENDZACT AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO TRENDZACT PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM.
THE LIMITATIONS SET FORTH IN THIS SECTION 9 SHALL APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
Limitation of Liability By You. You agree to indemnify, defend, and hold harmless Trendzact and its affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors, and assigns, against any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs (collectively, “Losses”), for any claim or action brought against Trendzact by any third party arising out of or relating to (a) an alleged or actual breach by you of this Agreement; (b) your alleged or actual violation of or non-compliance with any Laws; or (c) any negligent, reckless, or willful act, error, or omission by you or any of your Authorized Users.
Limitation of Liability By Us. Trendzact agrees to indemnify, defend, and hold harmless you and your affiliates, and each of your and their respective officers, directors, employees, agents, subcontractors, successors, and assigns, against any and all Losses for any claim or action brought against you by any third party arising out of or relating to (a) an alleged or actual breach by Trendzact of this Agreement; (b) any claim or allegation that any of the Services infringe any U.S. Intellectual Property Right; or (c) any negligent, reckless, or willful act, error, or omission by Trendzact or any of its employees, agents, or representatives. Notwithstanding the foregoing, in no event will Trendzact be obligated to defend, indemnify, or hold you harmless from any Losses arising out of or resulting from the misuse or unauthorized use of the Services.
Injunctive Relief. Each party acknowledges and agrees that damages may be an inadequate remedy in the event of an actual, intended, or threatened breach of this Agreement and that any such breach by a party may cause the other party irreparable injury and damage. Accordingly, each party agrees that the other party will be entitled to seek preliminary and permanent injunctive relief in the event of an actual, intended, or threatened breach by such party (without waiving any additional rights or remedies, including monetary damages, otherwise available to such party at law, in equity, or by statute).
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Amendments. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party.
Waiver. No waiver by any party of any of the provisions of this Agreement will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Export Regulation. The Services software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release such software to, or make such software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services software available outside the US.
US Government Rights. The Services software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are the US Government or any contractor therefor, you shall receive only those rights with respect to the Software and documentation related thereto as are granted to all other end users, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government entities and their contractors.
Force Majeure. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of thirty (30) days or more.
Assignment. You will not assign, transfer, delegate, or subcontract any of your rights or delegate any of your obligations under this Agreement without the prior written consent of Trendzact; provided, however, that you may assign this Agreement to the purchaser of all or substantially all of your assets to which this Agreement relates, without consent so long as you provide Trendzact with written notice of the assignment within thirty (30) days of the assignment and you remain liable for the assignee’s compliance or noncompliance with this Agreement. Any purported assignment or delegation in violation of this Section 11.7 will be null and void.
Exclusions. Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you.
Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any disputes hereunder will be within the exclusive jurisdiction of the state and/or federal courts located within the State of Delaware, and the parties hereby consent to such exclusive jurisdiction and waive objections to venue therein and jurisdiction thereof. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
Entire Agreement. This Agreement, including and together with the Sales Order Form and Exhibits A and B attached hereto, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
No Third-party Beneficiaries. Except as expressly provided otherwise in this Agreement, this Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Counterparts. This Agreement may be accepted as set forth in the introduction above. The Sales Order Form and any amendment may be executed simultaneously in any number of counterparts, each of which will be deemed an original, but all of which together constitute one and the same agreement. The parties agree that facsimile or electronic signatures are valid signatures for enforcement of this Agreement.
EXHIBIT A – DEFINITIONS
1. “Acknowledgements and Consents” has the meaning set forth in Section 2.2.
2. “Authorized User” means your employees, consultants, contractors, or agents who (a) you identify when setting up your account as accessing or using the Services, and (b) who have a bona fide need to access and use the Services. For purposes of clarity, and notwithstanding the foregoing, Authorized Users include Persons who execute the Acknowledgements and Consents.
3. “Confidential Information” means any confidential or proprietary information in any form or medium (whether oral, written, electronic, or other) that one party (the “Disclosing Party”) discloses to the other party (the “Receiving Party”) in connection with this Agreement, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, employees, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated, or otherwise identified as “confidential.” Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Agreement; (b) is obtained by Receiving Party on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; (c) Receiving Party establishes by documentary evidence, was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information.
4. “Content” has the meaning set forth in Section 1.
5. “Documentation” means manuals, instructions, or other documents or materials that Trendzact makes available to you in any form or medium and which describe the functionality, components, features, or requirements of the Services, as updated by Trendzact from time to time.
6. “Force Majeure Event” has the meaning set forth in Section 11.6.
7. “Intellectual Property Rights” means all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
8. “Laws” has the meaning set forth in Section 2.4.
9. “Order Form” means a separate agreement entered by the parties for your purchase of the Services.
10. “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
11. “Scheduled Downtime” means scheduled downtime for routine maintenance of the Services.
12. “Services” has the meaning set forth in Section 1.
13. “Fees” means the subscription fees, including all taxes thereon, paid or required to be paid by you for the Services as set forth on the Order Form.
14. “Term” means the period during which you are subscribed to the Services as set forth on the applicable Order Form.
