ENTERPRISE AUTHORIZED USER TERMS OF SERVICE
1. Overview of Services.
- Subject to these Terms, anyone can visit or browse the Website. If you are being asked to accept these Terms by clicking your acceptance or through another active method of indicating electronic acceptance of the Terms, it is because Truelytics, Inc. (“we” or “us” or “Truelytics”) and a third-party (the “Enterprise”) have entered into an agreement whereby Truelytics has granted to the Enterprise a certain number of licenses to use the Services and access the Platform (the “Enterprise Subscription”), and the Enterprise has granted you one of these licenses under the Enterprise Subscription as one of its “Authorized Users.”
- In connection with your access to the Platform and use of the Services as an Authorized User, you (“you”) will provide Truelytics with certain data, materials and information (“User Data”). User Data may be comprised of, without limitation, (i) data with respect to professional financial advisors, (ii) data with respect to customers and clients of Advisors (“Clients”) and (iii) data with respect to a practicing entity or firm of financial advisors. As an Authorized User under the Enterprise Subscription, you will access and use the Platform subject to these Terms, and Truelytics will provide the Services, including, without limitation providing certain data generated by Truelytics through your use of the Platform as a result of anonymizing, normalizing, analyzing, mapping, aggregating and otherwise processing the User Data (the “Truelytics Processed Data”).
Following your acceptance of these Terms (your “Registration”), you will receive an electronic notification from Truelytics confirming your Registration has been accepted or rejected by Truelytics. Although it is rare for Truelytics to reject a Registration, Truelytics reserves the right to do so in its sole discretion. Truelytics may provide you the opportunity to convert your Registration from a license granted through the Enterprise in connection with the Enterprise Subscription to a direct licensing arrangement with Truelytics, in which event the terms of the Services and related payment terms would be separately agreed between you and Truelytics, and you would become subject to separate terms of service applicable to such direct customer relationships.
3. Our Agreement.
4. Rights Granted to You.
Subject to the Enterprise Subscription pursuant to which the Enterprise has granted to you one of the licenses under it has purchased from Truelytics, you have a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Platform solely to be able to access and use the Services covered by the Enterprise Subscription (“Your Subscription Services”). Access and use by you of the Platform and Your Subscription Services is subject to all the limitations and restrictions in Our Agreement. If there is an unauthorized access or use of the Platform or any Service by you, Truelytics has the right immediately to disable or suspend your access to or use of the Platform and any or all of Your Subscription Services.
5. Use of the Services.
Your accepted Registration will enable Truelytics to create an account covering your use of Your Subscription Services. You agree that you will maintain and update your Registration and account information on the Website to ensure that it is current, complete and correct at all times. Truelytics has the right to suspend or terminate your account, your Subscription or your use of Your Subscription Services if we determine that your use of the Services (i) poses a security risk to the Services or our Confidential Information, (ii) is connected with service attacks, spamming, misappropriation of third-party rights, illegal activity or may otherwise subject us or our affiliates to any liability or (iii) constitutes a breach of Our Agreement.
- Your Responsibilities.
- You are responsible for providing and paying all fees and charges for the equipment, internet access and connections (the speed of which may have a significant impact on the responsiveness of the Platform and Your Subscription Services) and services (other than Your Subscription Services) that you need to access, download, install, and use the Platform and Your Subscription Services. Although we may from time to time recommend types of equipment, Truelytics does not guarantee that the Services are accessible on or from any particular equipment or device or with any particular software or service plan and we are not responsible at all for any equipment, whether or not recommended by us.
- You acknowledge that utility and performance of the Platform and Your Subscription Services is based on and requires that you have the necessary equipment installed and functioning properly. To the extent that you don’t comply with the requirements in this Section 5(b), the Platform and Your Subscription Services may not be able to function or to convey accurately the intended information to you and Truelytics is not responsible for that failure or for any costs associated with restoring systems and services.
- You are allowed to access and use the Platform and Your Subscription Services only for your internal business purposes and in accordance with all applicable laws, rules and regulations (including those relating to internet, data, and email privacy).
- You agree that you will not access or use the Platform or Your Subscription Services for unlawful purposes or to engage in any illegal, offensive, indecent or objectionable conduct, including violation of any third-party privacy or other rights.
- You will not use the Platform and Your Subscription Services to transmit, store or publish any content that is obscene, libelous, threatening or unlawful or that infringes or violates any rights. Subject to the terms and conditions of Our Agreement, we may impose limits on your bandwidth use and file hosting storage used by you with the Platform. We also reserve the right to disable immediately your access to the Platform in the event of your unauthorized use, disruption or abuse of Truelytics’ resources (as determined by Truelytics in its sole and absolute discretion).
- You are responsible for all of your activities that occur within, through or as a result of your access or use of the Platform or Services, whether or not such activities are authorized or known by you. You are also responsible for all activities that occur within, through or as a result of access or use of the Platform or Services by a person who uses your login credentials or identity, whether or not such access, use or activities are authorized or known by you. Please do not share your login credentials, including passwords, with anyone else.
- You agree that, without our express pre-approval, you will not: (a) use or launch any automated system that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (b) access or use the Platform or the Services in any manner that damages, disables, overburdens, or impairs the Platform or Services or interferes with our or any other customer’s or user’s access to or use of the Platform or Services; or (c) attempt to gain unauthorized access to or use of the Platform or the Services.
- You will notify us promptly of any unauthorized use of any of your login credentials, including passwords, or identifications.
- If you access or use the Platform or Services on a mobile device, you are solely responsible for all message and data fees charged by your wireless service providers. Please contact your mobile service provider for pricing plans and details. Truelytics is not liable for any delays, interruptions or other transmission errors related to your devices, services or wireless service providers.
- The Platform and Services are protected by intellectual property laws, and except as specifically allowed in these Terms, you agree not to: distribute, sell, assign, encumber, transfer, rent, lease, sublicense, modify, or time-share the Platform or the Services; use any of the Platform or Services in any service bureau arrangement or on behalf of any third-party; reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify any of the Platform or Services; or authorize any third-party to do any of the things described in this paragraph.
- You agree not to: remove or change any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in any of the Platform or the Services; decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any of the Platform or the Services; use any means to discover the source code of the Platform or the Services or to discover the trade secrets in the Platform or the Services; or otherwise circumvent any functionality that controls access to or otherwise protects the Platform or the Services
c. Our Responsibilities.
- We are responsible for providing to you and to the Enterprise’s Authorized Users access to and use of the Platform and Your Subscription Services as described in these Terms and the other parts of Our Agreement, and subject to all United States federal and state laws, rules and regulations applicable to our performance of Your Subscription Services.
- We will maintain administrative, physical and technical safeguards that we intend to protect the security, confidentiality and integrity of User Data and all other information that you provide to, through, or in connection with Your Subscription Services.
- We may modify the Platform or Services from time to time, including by adding or deleting features and functions, in an effort to improve the experience of you and other customers and users; but we are not required to do so. If we believe any improvements or modifications will significantly and harmfully affect how you access and use the Platform or Your Subscription Services or how the Platform or Your Subscription Services perform, we will notify you and/or the Enterprise.
- We are not responsible for the content of Other Services (as defined below) or for losses, liabilities, actual or pending claims, actions, damages, expenses, costs of defense and attorneys’ fees arising from your access or use of content, information, web sites, software, services and other materials of third parties with which you may interact when you access or use the Platform or Services (collectively, “Other Services”). YOU WILL ACCESS OR USE ANY OTHER SERVICES ENTIRELY AT YOUR OWN RISK AND YOU ARE RESPONSIBLE FOR YOUR COMPLYING WITH TERMS AND CONDITIONS APPLICABLE TO YOUR ACCESS OR USE OF OTHER SERVICES.
- As applicable and as needed, Truelytics will provide you with the user documentation related to Your Subscription Services, the Platform and necessary equipment (the “Documentation”).
- Availability: We try to make the Platform and Your Subscription Services available to you 24 hours per day, 7 days per week, except for scheduled or emergency down-time for maintenance, repair, upgrades or other changes. We will make reasonable efforts to minimize the amount of downtime.
- Support: Support for Authorized Users is included in the Enterprise Subscription for Services only if the Website expressly states that support is included as part of the Enterprise Subscription for that Service and in that case only the support stated in the Website to be included will be provided to you without additional charge.
d. Third-Party Websites.
The Website and the Platform may include links that will take you to other Web sites outside of the Website or Platform, including Web sites operated by unaffiliated third parties (collectively, “Linked Sites”). Truelytics has no control over the Linked Sites and you therefore acknowledge and agree that we have no responsibility for the information, content, products, services, advertising, code or other materials which may or may not be provided by or through any Linked Site. You further acknowledge and agree that Truelytics is not responsible for any form of transmission received from a Linked Site. The Linked Sites are provided by Truelytics as a convenience, and links to Linked Sites do not constitute an affiliation or endorsement by us of such Web sites or the information, content, products, services, advertising, code or other materials presented on or through such Linked Sites.
6. Additional Terms Applicable to the App.
Although we do not currently make available an App to access the Platform or to use the Services, we anticipate that we will make one available to users in the future, and at such time and subject to your compliance with Our Agreement and subject further to the continuation of the Enterprise Subscription between us and the Enterprise, we grant you a limited, non-exclusive, non-transferrable, non-sublicensable license to download, install, and run a copy of the App on mobile devices. Except as expressly permitted in these Terms, you may not: (a) copy, modify, or create derivative works based on the App; (b) distribute, transfer, sublicense, lease, lend, or rent the App to any third-party; or (c) reverse engineer, decompile, or disassemble the App. Truelytics reserves all rights to the App not expressly granted to you under these Terms.
If you access or download the App from any app store or distribution platform (such as the Apple Store, Google Play, or Amazon Appstore) (each, an “App Provider”), then you acknowledge and agree that you must comply with the applicable terms and conditions and other requirements of such App Provider and that:
- These Terms are among you and Truelytics, and not with App Provider, and that, as between Truelytics and the App Provider, Truelytics is solely responsible for the App.
- You are responsible for (a) installing the App on mobile devices that meet the hardware, software, internet and cellular service requirements specified in the applicable Documentation and (b) obtaining internet access for those mobile devices to enable the App to communicate with the Platform via the internet.
- App Provider has no obligation to furnish any maintenance and support services for the App.
- App Provider is not responsible for addressing any claims you have or any claims of any third-party relating to the App or your possession and use of the App, including by not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third-party claim that the App, or your possession and use of the App, infringes that third-party’s intellectual property rights, the App Provider will not be responsible for the investigation, defense, settlement and discharge of any intellectual property infringement claim.
- App Provider and its subsidiaries are third-party beneficiaries of these Terms as related to your license of the App, and when you accept these Terms, App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary of these Terms.
- You must also comply with all applicable third-party terms of service when using the App.
- Excluded Data. You agree that you will not provide any of the following (in any format) to Truelytics or upload any of the following (in any format) in using the Services or accessing the Platform: any personal health information; biometric information; social security numbers; credit report information; debit or credit or payment card information or bank or other financial account information or other financial or credit data (other than (x) financial information and records related to the User Data, and (y) your payment information provided in your Registration, if applicable) (collectively, “Excluded Data”). Notwithstanding anything to the contrary in Our Agreement, except to the extent required by applicable law that cannot be waived, Truelytics will not have any obligation or liability under Our Agreement or otherwise with respect to Excluded Data.
- Your Data. As between you, on the one hand, and Truelytics, on the other hand, you are the sole owner of all information or data relating to you or your business, including User Data and all results generated by your use of the Services, including without limitation, reports, analysis, valuation models and a “scorecard” derived from the Platform (collectively, the “Work Product”), that is communicated to or collected by Truelytics or the Platform under Our Agreement (in these terms we call all of this “Your Data” but the Term “Your Data” expressly excludes any Excluded Data and Contributions (as defined below)), and our Agreement does not provide Truelytics with title or ownership of Your Data. For the avoidance of doubt, any information and data provided to Truelytics by the Enterprise shall be owned exclusively by Enterprise and shall not be deemed “Your Data,” and you shall have no title or ownership interest in or to any such information and data. You hereby agree that you have the right to provide all of Your Data, including User Data, to Truelytics and you will provide all of Your Data and User Data in accordance with all applicable laws and regulations, including, without limitation, 15 U.S.C. §§6801-6809 (the Gramm-Leach-Bliley Act) – “Protection of nonpublic personal information” and 16 C.F.R. §313.13 – “Exceptions to opt out requirements for service providers and joint marketing,” Securities and Exchange Commission (SEC) Regulation S-P, and any state laws relating to the sharing of data related to Clients in the jurisdictions where the Clients’ data is derived, including any notice requirements, privacy policies, and/or data sharing agreements necessitated under such laws. Truelytics may, in our sole discretion, include functionality within the Services to enable you to share access (but not ownership) of your User Data, Work Product and the Truelytics Processed Data with third parties.
- License to Your Data. Notwithstanding the foregoing, you grant to Truelytics a perpetual, royalty free, worldwide right and license to copy, use, distribute, display, disclose and create derivative works of Your Data prior to and after the End Date (as defined below): (i) to provide Your Subscription Services to you, to generate Truelytics Processed Data, and otherwise perform Truelytics’ obligations under Our Agreement; (ii) to monitor for security and compliance purposes your access and use of the Platform and Your Subscription Services; (iii) to perform statistical and other analysis, including to improve the Platform and the Services, but in doing those analyses we won’t publicly disclose any of Your Data except in an aggregated form that would not reasonably be expected to permit a third-party to identify the disclosed information as associated with you or any other Authorized User of the Enterprise; and (iv) to enforce the terms of Our Agreement. The license granted in this Section is sublicensable and assignable by Truelytics to any of its affiliates, co-marketers, co-developers and successors. Furthermore, for so long as you remain an Authorized User and until the End Date, the Enterprise shall be entitled to full and free unrestricted access to all Work Product generated by you and all User Data you provide to Truelytics. Our agreement with the Enterprise shall provide that the Enterprise’s access to such Work Product and User Data shall be solely for the Enterprise’s internal business purposes, and that the Enterprise shall not disclose such Work Product or User Data to any third parties, or otherwise transfer, sell, license, distribute or duplicate such Work Product or User Data, or create any derivative works therefrom.
- What Happens to Your Data After the End Date. Truelytics will keep all Your Data for a period of one hundred eighty (180) days after the End Date, and, if you request it of Truelytics in writing during that one hundred eighty (180) days, Truelytics will transfer to you a copy of Your Data that has been kept by Truelytics. Truelytics will have no obligation to keep any of Your Data after the end of that one hundred eighty (180) days (though it may keep a copy solely for purposes of exercising its license in Section 7(c)).
- Truelytics Processed Data. Truelytics owns and at all times shall retain all right, title and interest in and to, including all intellectual property rights related to, the Truelytics Processed Data. During the term of your Subscription and until the End Date, Truelytics grants to you, solely for your own internal business purposes, a non-exclusive, non-transferable, royalty free, worldwide right and license to use the Truelytics Processed Data and to use the Platform to access the Truelytics Processed Data.
- Confidential Information. Subject to the ability to share access to User Data Work Product and Truelytics Processed Data with third parties as set forth in Section 7(b) and subject to the Enterprise’s right to access Work Product and User Data as set forth in Section 7(c), each of you and Truelytics shall retain in confidence all non-public information and know-how disclosed pursuant to Our Agreement, whether oral or in writing or electronically, that is either designated as proprietary and/or confidential or, by the nature of the circumstances surrounding disclosure, should in good faith be treated as proprietary and/or confidential (“Confidential Information”), using at least the same standard of care used by it to protect its own confidential information (but in no event less than a reasonable standard of care). Excluded Data is not part of your Confidential Information.
- Exclusions. The parties’ obligations under Section 8(a) shall not apply to Confidential Information that the receiving party can demonstrate: (i) is or becomes a matter of public knowledge through no fault of the receiving party; (ii) was rightfully in the receiving party’s possession prior to disclosure by the disclosing party; (iii) subsequent to disclosure by the disclosing party, is rightfully obtained by the receiving party from a person in lawful possession of such Confidential Information; (iv) is independently developed by the receiving party without use of or reference to Confidential Information of the disclosing party; or (v) is required to be disclosed by law (but only to the extent of such required disclosure).
9. Intellectual Property
- Truelytics Intellectual Property. The Platform and the Services, including the “look and feel” (e.g., text, graphics, images, logos), content and other material, are protected under copyright, trademark and other laws. You acknowledge and agree that Truelytics and its licensors own all right, title and interest in and to the Platform and the Services, and of all copyright, trade secret, patent, trademark and other intellectual property rights in and to the Platform and the Services (including any modifications or improvements made to the Platform and the Services in the course of providing any Services to you), and Our Agreement does not provide you with title or licenses to or ownership of the Platform or the Services, or any copies or modifications or improvements, or to or under any of Truelytics’ copyrights, patents, patent applications, copyrights, trade secrets, trademarks or other intellectual property rights, but you have only a right of limited, remote access and use of the Platform and Your Subscription Services as expressly permitted and limited by Our Agreement.
- Prohibited Actions. You will not, and will not allow any of your employees or agents to copy, market, distribute, export, translate, reverse engineer, unencrypt, decompile, disassemble, or derive the source code, application source code, or data base design for, modify, alter, adapt or create derivative works from, duplicate or re-engineer or use internal applications that mimic the functionality of, transmit, merge, modify, transfer, adapt, loan, rent, lease, assign, share, redistribute, host, hyper-link to, frame or store all or any portion of the Platform and the Services. You also will not, and will not allow any of your employees or agents to remove, obfuscate or alter any patent, copyright, trademark or other intellectual property or proprietary notices of Truelytics. You will not, and will not allow any of your employees or agents to (i) use any device, software or routine to interfere or attempt to interfere with the proper working of the Platform and the Services; (ii) use the Platform or any Services to display or share any libelous, defamatory or inappropriate information; or (iii) use the Platform and the Services except in strict compliance with all laws, rules, regulations, privacy policies, contracts, agreements, judgments, orders and decrees binding on you or applicable to your business. You will not, and will not allow any of your employees or agents to take any action(s) inconsistent with our ownership of our intellectual property.
- Contributions. Any feedback, evaluations, suggestions and comments that you or your employees or agents provide to Truelytics (in whatever format) on or through the Platform or Services, and all improvements, updates, modifications or enhancements to the Platform and the Services (including any based on or resulting from any of that feedback, evaluations, suggestions or comments) are owned exclusively by Truelytics. You agree that any contribution of feedback, evaluations, suggestions and comments and any resulting improvements, updates, modifications, and enhancements (collectively “Contributions”) does not give you or any of your employees or agents any rights in or to the Platform or the Services. These Contributions are all property of Truelytics and Truelytics may use and disclose the Contributions without notice or compensation to you or your employees or agents. You, on your behalf and on behalf of your employees and agents, irrevocably assign to Truelytics any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights, and any and all other intellectual property rights) that you or they may have in and to any and all Contributions. If we request, you will, and will cause your employees and agents to execute any document, registration or filing required to give effect to the foregoing assignment.
Unless otherwise expressly agreed among you, Truelytics and/or the Enterprise, the fees for Your Subscription Services have been or will be paid directly to Truelytics by the Enterprise on behalf of all of its Authorized Users in connection with its Enterprise Subscription. If other payment methods are ever expressly agreed among you, Truelytics and/or the Enterprise, we will mutually determine the amount, timing and method of payment. Your access to and use of the Platform and the Services is dependent upon the full and timely payment by the Enterprise for Your Subscription Services and similar services for its other Authorized Users, and Truelytics reserves the right to suspend or discontinue Your Subscription Services in the event the Enterprise is delinquent or has otherwise defaulted with respect to its payment obligations. Truelytics reserves the right to change the amount of fees payable for Authorized Users’ access to and use of the Platform and Services, subject to the terms of our agreement with the Enterprise.
11. Express Warranties.
We warrant that we have validly entered into Our Agreement and have the legal right and power to do so. You warrant that (i) you have validly entered into Our Agreement and have the legal right and power to do so and (ii) you have all necessary rights, licenses, consents and permissions to disclose and use Your Data with Your Subscription Services and to grant to us the license in Section 7(c) and the rights in Section 9(c).
12. DISCLAIMER OF WARRANTIES, LIMITATIONS ON LIABILITY AND DAMAGES.
- DISCLAIMER OF WARRANTIES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM AND THE SERVICES ARE MADE AVAILABLE “AS-IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE.” YOU BEAR ALL RISK OF YOUR ACCESSING AND USING THE PLATFORM, THE SERVICES AND THE TRUELYTICS PROCESSED DATA. TRUELYTICS, ON BEHALF OF ITSELF AND ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE VENDORS, LICENSORS, AGENTS, AND SUPPLIERS (“DISTRIBUTORS”), GIVES NO EXPRESS WARRANTIES, GUARANTEES, OR CONDITIONS UNDER OR IN RELATION TO THE PLATFORM, THE SERVICES AND THE TRUELYTICS PROCESSED DATA. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS WHICH THESE TERMS CANNOT CHANGE. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, TRUELYTICS AND ALL DISTRIBUTORS EXCLUDE ANY IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TRUELYTICS DOES NOT WARRANT (A) THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR ANY OTHER AUTHORIZED USER, (B) THAT ACCESS, USE AND OPERATION OF THE PLATFORM, THE SERVICES AND THE TRUELYTICS PROCESSED DATA WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE, (C) THAT THE PLATFORM AND THE SERVICES WILL OPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATIONS OR ANY PARTICULAR SYSTEMS OR DEVICES, (D) THAT DEFECTS IN THE PLATFORM AND THE SERVICES WILL BE CORRECTED OR (E) THAT THE PLATFORM AND THE SERVICES WILL BE AVAILABLE FOR REINSTALLS ON THE SAME OR MULTIPLE DEVICES. ANY ORAL OR WRITTEN ADVICE PROVIDED BY TRUELYTICS OR ITS AUTHORIZED AGENTS WILL NOT BE DEEMED TO CREATE ANY WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
- LIMITATIONS ON LIABILITY TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRUELYTICS’ TOTAL LIABILITY WITH RESPECT TO ANY CLAIM (OR GROUP OF RELATED CLAIMS) BY YOU ARISING OUT OF OR RELATED TO OUR AGREEMENT, INCLUDING THE DELIVERY, ACCESS, USE, AVAILABILITY, LACK OF AVAILABILITY OR PERFORMANCE OR NON-PERFORMANCE OF THE PLATFORM, THE SERVICES OR THE TRUELYTICS PROCESSED DATA (WHETHER SUCH CLAIM IS FOR BREACH OR NON COMPLIANCE OR OTHERWISE AND WHETHER IN CONTRACT, STRICT LIABILITY, NEGLIGENCE OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY), WILL NOT EXCEED THE TOTAL AMOUNT PAID BY THE ENTERPRISE TO TRUELYTICS WITH RESPECT YOUR ACCESS TO AND USE OF THE PLATFORM AND SERVICES, AS A PROPORTION OF THE PAYMENTS WITH RESPECT TO ALL OF THE ENTERPRISE’S AUTHORIZED USERS, IN THE TWELVE (12) MONTHS PRECEDING THE FIRST ASSERTION OF THAT CLAIM (OR THE FIRST OF THE GROUP OF RELATED CLAIMS); BUT TRUELYTICS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO OUR AGREEMENT, INCLUDING THE DELIVERY, ACCESS, USE, AVAILABILITY, LACK OF AVAILABILITY OR PERFORMANCE OR NON-PERFORMANCE OF THE PLATFORM, THE SERVICES AND THE TRUELYTICS PROCESSED DATA (WHETHER SUCH CLAIM IS FOR BREACH OR NON COMPLIANCE OR OTHERWISE AND WHETHER IN CONTRACT, STRICT LIABILITY, NEGLIGENCE OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY), WILL NEVER EXCEED AND WILL UNDER ALL CIRCUMSTANCES BE CAPPED AT AND LIMITED TO THE TOTAL AMOUNT THAT HAS BEEN PAID BY THE ENTERPRISE TO TRUELYTICS WITH RESPECT ITS AUTHORIZED USERS’ ACCESS TO AND USE OF THE PLATFORM AND SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE FIRST ASSERTION OF THAT CLAIM (OR THE FIRST OF THE GROUP OF RELATED CLAIMS). THIS LIMITATION WILL NOT AND DOES NOT LIMIT THE ENTERPRISE’S PAYMENT OBLIGATIONS.
- LIMITATIONS ON DAMAGES TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRUELYTICS WILL NOT BE LIABLE TO YOU, ANY OTHER AUTHORIZED USER OR ANY THIRD-PARTY FOR INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL AND PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES, LOSS OF USE, LOSS OF DATA, LOSS OF CONTENT, LOSS OF PROFITS OR REVENUE, LOSS OF GOODWILL OR BUSINESS INTERRUPTION), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER OUR AGREEMENT OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH OUR AGREEMENT OR THE DELIVERY, ACCESS, USE, AVAILABILITY, LACK OF AVAILABILITY OR PERFORMANCE OR NON-PERFORMANCE OF THE PLATFORM, THE SERVICES AND THE TRUELYTICS PROCESSED DATA (WHETHER SUCH CLAIM IS FOR BREACH OR NON COMPLIANCE OR OTHERWISE AND WHETHER IN CONTRACT, STRICT LIABILITY, NEGLIGENCE OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY), EVEN IF TRUELYTICS HAS BEEN ADVISED OF THE POSSIBILITY OF THAT DAMAGE OR IF YOUR REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. YOU AGREE NOT TO ASSERT A CLAIM FOR OR SEEK TO RECOVER ANY DAMAGES NOT PERMITTED UNDER THIS SECTION. THIS DISCLAIMER OF LIABILITY WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
You expressly agree that the above limitations of liability and limitations on damages, together with the other provisions in these Terms and Our Agreement that limit liability and damages, are essential parts of these Terms and Our Agreement and that Truelytics would not be willing to grant you or any Authorized User the rights set forth in these Terms and Our Agreement without your agreement to these limitations of liability and limitations on damages.
NOTHING IN OUR AGREEMENT EXCLUDES ANY PARTY’S LIABILITY FOR MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED UNDER APPLICABLE LAW. NOTHING IN THIS AGREEMENT LIMITS ANY PARTY’S LIABILITY FOR MATTERS FOR WHICH LIABILITY CANNOT BE SO LIMITED UNDER APPLICABLE LAW.
If Your Subscription Services, the Platform or the Truelytics Processed Data becomes or, in our opinion, may become the subject of any claim, suit or proceeding for infringement of any United States or European Union patent, trademark, copyright or other intellectual property right under United States or European Union law, Truelytics will, at its option and expense, either (i) obtain for you any additional right required under United States or European Union law for you to access and use the Platform and Your Subscription Services, (ii) replace Your Subscription Services with a non-infringing Service, or (iii) modify the Platform or Your Subscription Services so that it does not infringe. Truelytics will not be liable for any infringement arising from: the combination of the Platform or a Service with other products or services; from the access or use of the Platform, a Service or the Truelytics Processed Data in practicing a process; or resulting from Your Data or Excluded Data. Truelytics’ total liability under Our Agreement with respect to actual or alleged infringement by a Service, the App or the Website will not under any circumstances exceed the aggregate subscription fees that are paid by the Enterprise to Truelytics for all Authorized Users’ use of that Service, the App or the Website during the period of actual infringement by that Service, the App or the Website.
This Section 13 constitutes Truelytics’ only obligation and liability, and your exclusive remedy, for actual or alleged infringement of the intellectual property rights of third parties by any of the Platform, the Services or the Truelytics Processed Data.
14. Term and Termination; What Happens After the End Date.
- Term of Our Agreement. Our Agreement starts and is first effective on the date that Truelytics accepts your Registration and Our Agreement stays in effect until, and terminates, on the earliest of: (i) the date that the Enterprise Subscription is terminated or otherwise expires (and on or prior to which date we or the Enterprise will provide you notice); (ii) the date that the Enterprise has informed us, upon at least thirty (30) days’ prior written notice, will be the last date of your license under its Enterprise Subscription to access the Services (and on or prior to which date we will provide you notice); (iii) the date that your Registration is terminated by you upon thirty (30) days’ prior written notice to us; and (iv) the date that your Registration is terminated by you or us for failure to perform in accordance with Section 14(b) below (whatever the reason for such expiration or termination, the “End Date”).
- Early Termination for Failure to Perform. Each of you and Truelytics has the right to terminate your Registration, Your Subscription Services and/or Our Agreement if the other party fails to perform any of its obligations under Our Agreement, by giving written notice of termination to the other party. In the case of a failure to perform an obligation that relates to the intellectual property or Confidential Information of the other party, termination may be effective immediately upon delivery of written notice and no opportunity to cure is required. In all other cases, ten (10) days’ prior written notice and an opportunity to cure is required before the early termination notice may be effective.
- What Happens on The End Date. On the End Date, you must immediately stop accessing and using the Platform, the Services and the Truelytics Processed Data. All rights granted to you to access and use the Platform, the Services and the Truelytics Processed Data will end automatically and immediately on the End Date. Termination of your Registration, Your Subscription Services and/or Our Agreement for any reason shall not release either you or us from any liability, which, at the time of such termination, has already accrued to the other party or which is attributable to a period prior to such termination, nor shall it preclude either you or us from pursuing any right or remedies hereunder or at law or in equity which accrued or are based upon any event occurring prior to such termination.
- Surviving Provisions. Section 3 and Sections 7 through 30 will survive the End Date and continue to be effective after the End Date.
Truelytics’ rights and remedies are cumulative (and not exclusive) and may be exercised at the same time or at different times, and are in addition to any other remedies available at law, in equity or otherwise.
16. Irreparable Damage; Injunctive Relief.
Each of you and Truelytics acknowledges that a violation of certain provisions of Our Agreement will result in substantial and irreparable damage to Truelytics for which Truelytics will not have an adequate remedy at law and for which money damages would not be a sufficient remedy, and you agree that, in addition to all other remedies, in the event of any breach or alleged or threatened breach by you or your Users of any of the provisions of Our Agreement, Truelytics will be entitled to equitable relief by any court of competent jurisdiction, including injunction and specific performance, in each case without being required to prove irreparable harm or damages, post a bond or otherwise provide security. The rights provided under this Section shall be in addition to, and not in lieu of, any other rights and remedies available to Truelytics at law or in equity.
Notices to Truelytics must be sent by you to: Truelytics, Inc., 396 Washington Street, Suite 290, Wellesley, MA 02481 or firstname.lastname@example.org or to another physical or email address that Truelytics tells you (in a notice) is its new notice address. Notices to you may be sent by Truelytics to the physical address that you provide in your most recent Registration but we may also give electronic notices to you by general notice via the Platform and Your Subscription Services and we may give electronic notices specific to you on your dashboard on the Platform or by email to your email address on record with us. Notices are effective when actually delivered on a business day at the applicable physical address or when delivered on a business day by email to the applicable email address (or shall take effect on the next business day when delivered by email to the applicable email address on a day other than a business day).
Subject to your prior approval, we may request from you the right to list your company name and company logo as a customer on the Website and promotional material.
Our Agreement is binding upon you and Truelytics and the parties’ respective successors and permitted assigns. Truelytics may assign any of its rights and obligations under Our Agreement to an affiliate or lender of Truelytics or to someone that acquires all or any substantial part of Truelytics’ business (by asset acquisition, acquisition of equity securities, merger or otherwise). Truelytics may also assign or sublicense the license granted to it under Section 7(c) as permitted in Section 7(c). You may assign your rights and obligations under Our Agreement only with Truelytics’ written consent, which Truelytics won’t deny unreasonably.
20. We Don’t Pay Kickbacks.
You agree that you have not received or been offered any bribe or illegal or improper kickback, payment, gift, or thing of value from any of Truelytics’ employees or agents in connection with Our Agreement and Your Subscription Services, but this doesn’t prevent us or our Distributors from offering or providing reasonable entertainment or gifts in the ordinary course of business unless that is prohibited by applicable law. If you learn of any prohibited offer or payment, please let us know as soon as possible. Please notify us at email@example.com.
21. Force Majeure.
No party will be responsible for failure or delay of performance (other than a payment obligation) if that failure or delay is caused by events beyond that party’s reasonable control, including, but not limited to, fire; storm; flood; earthquake; explosion; war; act of terrorism; strike or labor disruption; internet, telecommunication or utility outages; rebellion; insurrection; quarantine; boycott; embargo; shortage or unavailability of supplies or qualified personnel; riot; governmental law, regulation or edict; or scheduled or emergency inspection, maintenance, repair, or replacement of equipment, software or structure. But the party whose performance is blocked should make reasonable efforts to resume performance as soon as reasonably practicable.
22. Amendment; Waiver of Our Agreement.
- Amendment. Except for updates and modifications by Truelytics described in clauses (a) and (b) above, no part of Our Agreement can be changed, amended or modified except by written agreement of you and Truelytics expressly stating it is an amendment to Our Agreement.
- Waiver. If Truelytics or you fails to perform an obligation under Our Agreement, that failure can only be waived (so that it doesn’t matter) if the other party waives it in writing and a waiver will only apply to that specific failure. In other words, if another obligation is breached or if the same obligation is breached again, another written waiver is needed. The fact that the other party doesn’t object to a failure or demand that it be fixed or enforce its rights resulting from that failure does not mean that there is a valid waiver or that that party can’t object, demand it be fixed or enforce its rights for that or any other failure.
We believe all of the parts of Our Agreement are permitted under all the laws that apply to Our Agreement, but there are a lot of different laws that apply and sometimes laws change or the interpretation of laws change. If any section of Our Agreement is invalid, illegal or unenforceable under any of the laws that apply to Our Agreement, then you and Truelytics agree that section of Our Agreement will be reformed automatically (in other words fixed) so that it is valid, legal and enforceable under all the applicable laws consistent with what you and Truelytics originally intended that section to mean. In any case, the rest of Our Agreement stays in effect and isn’t affected by that invalid, illegal or unenforceable or reformed section.
24. Relationship of the Parties.
Truelytics and you are independent contractors. Nothing in Our Agreement creates a partnership, franchise, joint venture, agency, fiduciary, agency, representative or employment relationship between Truelytics and you. There are no third-party beneficiaries under Our Agreement except for any applicable App Provider as stated expressly in Section 6.
25. Entire Agreement.
26. Contract for Services.
Our Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code, the Uniform Computer Information Transaction Act, or any substantially similar legislation shall not apply to Our Agreement. You and Truelytics agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the interpretation or construction of these terms or any other part of Our Agreement.
27. Export Laws.
You agree that you will not export or re-export the Services and/or other information or materials provided by Truelytics to any country that requires any export license or government approval without first getting that license or approval. You agree to comply with all applicable United States export laws and regulations, and are responsible for these laws and regulations at your own expense. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
28. Governing Law.
Our Agreement is governed by the internal laws of the Commonwealth of Massachusetts, without giving effect to the principles of conflicts of laws of Massachusetts, and is binding upon the parties hereto in the United States and worldwide.
29. Copyright Agent.
We respect the intellectual property rights of others, and require that the people who use the Website do the same. Truelytics will, in appropriate circumstances, terminate the accounts of users who infringe the intellectual property rights of others. Truelytics will investigate notices of copyright infringement and take appropriate actions under the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2) (the “DMCA”). If you believe that your work has been copied in a way that constitutes copyright infringement and such infringement is occurring on the Website or on sites linked to from the Website or in connection with the Services, please forward the following information to Truelytics’ Copyright Agent, designated as such pursuant to the DMCA, named below:
- Information sufficient to permit Truelytics to contact you, such as your address, telephone number, and email address;
- A description of the copyrighted work or works that you claim have been infringed and identification of what content in such work(s) is claimed to be infringing and which you request to be removed or access to which is to be disabled;
- A description of where the alleged infringing material is located on the Website;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest that is alleged to have been infringed; and
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Truelytics’ designated agent for notice of claims of copyright infringement can be reached as follows:
14425 Falcon Head Blvd
Building E, Suite 100
Austin, TX 78738
Phone Number: (800) 834-7494
The designated agent should be contacted only if you believe that your work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on the Website or on sites linked to from the Website or in connection with the Services.
30. Binding Arbitration.
Any dispute, claim or controversy arising out of or relating to Our Agreement or the breach, termination, enforcement, interpretation or validity of any of those, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Boston, Massachusetts before one arbitrator. Either Truelytics or you may commence the arbitration process called for in this Section by filing a written demand for arbitration with JAMS, with a copy to the other party. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures, each as in effect at the time of filing of the demand for arbitration. Each party will cooperate with JAMS and with the other party in selecting an arbitrator from JAMS’s panel of neutrals, and in scheduling the arbitration proceedings. Each of you and Truelytics agrees that it will participate in the arbitration in good faith. The costs of the proceedings (including attorneys’ fees and costs on a full indemnity basis or otherwise) shall be borne in the manner determined by the arbitrator. The provisions of this Section may be enforced by any court of competent jurisdiction. In the event of any procedural matter not covered by the relevant JAMS rules, the procedural law of the Commonwealth of Massachusetts shall govern. The parties acknowledge and agree that their obligations under this arbitration provision survive and will continue to bind them after the End Date. Judgment on the arbitration award may be entered in any court having jurisdiction. This Section won’t preclude either party from seeking equitable relief or provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The parties shall maintain the confidential nature of the arbitration proceeding and the arbitration award, including the hearings and filings, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy or unless otherwise required by law or judicial decision.
Please direct questions regarding these Terms to our team by submitting a request to: firstname.lastname@example.org.
or by regular mail to:
14425 Falcon Head Blvd
Building E, Suite 100
Austin, TX 78738