(a) Agreement. These Terms of Service between True Ultimate Standards Everywhere, Inc. ("TRUSTe") and Company, and each applicable service schedule (each, a "Service Order") that is signed by TRUSTe and Company, and any other document that is signed by TRUSTe and the Company which specifically incorporates by reference these Terms of Service, shall create a contract between the parties (with all of such documents being collectively referred to as the "Agreement").
(a) Service Orders. The services to be provided by TRUSTe and purchased and paid for by Company are as set forth in each applicable Service Order (as so defined, the "Services"). TRUSTe will provide, and the Company will purchase and pay for, the Services indicated in each Service Order for the duration of the term indicated in such Service Order. At the end of any such term, the Services will automatically continue on an annual basis until either party terminates the Service Order with at least twenty (20) business days prior notice.
(b) Equipment and Software. Unless the applicable Service Order provides otherwise, TRUSTe will provide software-as-a-service to allow Company to utilize the applicable Services and Company will be wholly responsible for providing any Company-premises equipment necessary for Company to utilize the Services.
(c) Price. Company agrees to pay the price indicated for the Services in the applicable Service Order. Unless the Service Order provides otherwise, and except for fee increases due to increased charges to TRUSTe for number porting and related fees and international telecommunication carrier charges, TRUSTe may not change the prices for the Services during the Initial Term unless mutually agreed to by the parties in writing. Any increases in fees due to increased charges to TRUSTe as described in the preceding sentence shall be effective twenty (20) business days after Company receives written notice thereof. All prices are quoted in U.S. dollars and Company must pay all invoices in U.S. dollars.
(d) Payment. Company must pay all invoices within forty-five (45) days of the invoice date. Payment of TRUSTe invoices shall not be dependent upon any Company-generated purchase order. If Company desires for a TRUSTe invoice to reference a Company purchase order, Company shall deliver to TRUSTe a written purchase order within ten (10) days of the Effective Date set forth in the Service Order. If there is any inconsistency or conflicting terms between this Agreement and a Company purchase order, the terms of this Agreement shall prevail. All purchase orders must be signed on behalf of the Company by its authorized representative. All invoices are fully earned when due and non-refundable when paid, subject to the terms and conditions of any Service Level Agreement regarding service-level credits, as found in an applicable Service Order. Company will reimburse TRUSTe for all costs, including reasonable attorneys' fees, court costs, bank charges and other consequential fees and expenses if TRUSTe utilizes the services of a collections agency or attorney to collect any amounts due and unpaid hereunder. If any check tendered by Company is returned for insufficient funds, Company will pay, in addition to the invoice amount and any interest due, an NSF fee equal to the greater of $30 or five percent of the face amount of the check, whichever is greater.
(e) Company Obligations. Company and its end users: (i) will comply with any Company requirements pertaining to the Services set forth in documentation provided by TRUSTe to Company, (ii) are solely responsible for the hardware, software and network connectivity required by Company to connect to and utilize the Services, (iii) may not utilize the Services in connection with or in furtherance of any activity that violates applicable law or that violates the intellectual property rights of any third party, (iv) may not resell the Services unless Company is party to a written agreement with TRUSTe that expressly permits such activity, (v) will not authorize or encourage any third party to generate fraudulent impressions of or fraudulent clicks on any Icons, including through repeated manual clicks, the use of robots or other automated tools or any other method that may lead to artificially high numbers of impressions, downloads, or clicks; and (vi) will not edit or modify, the information contained in any Service.
i. At any time when there is no Service Order in effect, Company may terminate this Agreement immediately by giving written notice to TRUSTe. If TRUSTe materially breaches this Agreement and fails to cure such material breach within twenty (20) business days after receiving written notice thereof from Company, Company may terminate this Agreement immediately thereafter by giving written notice to TRUSTe. In the event that Company terminates this Agreement before the expiration of the Initial Term or Term as set forth in the Service Order, other than in connection with TRUSTe's uncured material breach as set forth in the preceding sentence, Company shall be obligated to pay TRUSTe an amount equal to the applicable minimum monthly payment obligation (as set forth in the Service Order) for each of the remaining months of the Initial Term (or Term, as applicable) of the Agreement.
ii. TRUSTe may terminate this Agreement by giving notice to Company if (a) Company fails to pay an invoice when due, (b) Company violates any of its contractual obligations under this Agreement, (c) Company violates applicable law through or in connection with its utilization of the Services, or (d) as provided in Section 6(d)(iii) of these Terms of Service. (h) Company of Record. For the avoidance of doubt, Company shall be TRUSTe's Company-of-record, and Company's end users shall not be Companys of TRUSTe. In addition, Company shall be responsible for communicating with and billing its end users, and Company will be responsible for providing Company support to its end users.
(i) Taxes. Company will pay, and Company reserves the right to collect in arrears, all sales, use, excise or other transaction taxes (not including any taxes based on Company's net income or ownership of property) or similar charges imposed or assessed on Company by any foreign, federal, state, commonwealth, provincial, county, or other government authority upon or with respect to the Services provided under this Agreement. If Company claims exemption from any such taxes or charges, Company must provide Company in advance with a current, valid exemption certificate for the applicable tax or charge.
3. Intellectual Property
(a) TRUSTe Intellectual Property. As between TRUSTe and Company, TRUSTe owns all patent, copyright, trademark, trade secret and other intellectual property rights that may exist (i) in the Services, the TRUSTe equipment and network that may be utilized to provide the Services, (ii) any software or hardware provided by TRUSTe to Company to facilitate Company's utilization of the Services, (iii) any domain names provided by TRUSTe in connection with the provision of the Services, and (iv) any information, data, trends, analyses, metadata or other data which may be derived from any of the foregoing that is derived or created by TRUSTe by reference to the Services, TRUSTe's network and Company's usage of the TRUSTe Services (subject, at all times, however, to TRUSTe's obligation of confidentiality in favor of Company as provided in Section 4 below) (all of the foregoing intellectual property being the "TRUSTe Transactional IP").
(b) Company Intellectual Property. As between Company and TRUSTe, Company owns all patent, copyright, trademark, trade secret and other intellectual property rights that may exist (i) in any software or hardware provided by Company in connection with Company's use of the Services, (ii) in any data or communications transmitted or processed by Company through the Services (the "Company Content"), (iii) in any domain names provided by Company in connection with the utilization of the Services, and (iv) in any data that identifies Company, any of Company's employees, any of Company's vendors, or Company's trading partners (all of the foregoing intellectual property being the "Company Transactional IP").
(c) Mutual Respect. TRUSTe agrees to assert no claim of ownership over the Company Transactional IP and Company agrees to assert no claim of ownership over the TRUSTe Transactional IP.
4. Data Security and Confidentiality
(a) Confidentiality. In connection with the Services, TRUSTe and Company will each have access to confidential or proprietary information of the other party that is subject to reasonable limitations and restrictions that are intended to maintain the secrecy and confidentiality of such information (as applicable, "Confidential Information") For purposes of this Service Order, Confidential Information includes, but is not limited to, the following types of information and other information of a similar nature whether or not reduced to writing: discoveries, ideas, concepts, research, development, processes, operating procedures, "know-how" (whether or not patentable and whether or not copyrightable), trade secret, software, technology, personnel, marketing techniques, procedures and materials, marketing and development plans, client names and other information related to clients, vendor information, account fees, pricing and policies, and financial information. Each party will not, without the prior written consent of the other party, use or disclose to any person any Confidential Information of the other party disclosed or made available to it, except for use of such Confidential Information as required in connection with the performance of its obligations or use of the Services hereunder. Each party (as applicable, a "Recipient") will (i) treat the Confidential Information of the other party (as applicable, a "Discloser") as secret and confidential, (ii) limit access to the Discloser's Confidential Information to those of the Recipient's employees who require it in order to effectuate the purposes of this Agreement, and (iii) not disclose the Discloser's Confidential Information to any other person without the prior written consent of the Discloser. Notwithstanding the foregoing, however, the following shall not be considered Confidential Information: (i) any information that the Recipient can demonstrate was within its legitimate possession prior to the time of disclosure by the Discloser; (ii) any information that was in the public domain prior to disclosure by the Discloser; (iii) any information that, after disclosure by the Discloser, comes into the public domain through no fault of the Recipient, (iv) any information that is disclosed to the Recipient without restriction by a third party who has legitimate possession thereof and the legal right to make such disclosure; or (v) any information that, two years after expiration or termination of this Agreement, does not constitute a trade secret under applicable law. Notwithstanding its obligations of confidentiality in this Agreement, TRUSTe may disclose Company Confidential Information (1) in response to a subpoena or court order, (2) in response to an administrative order or other directive from a governmental entity having jurisdiction over TRUSTe, or (3) as otherwise required by applicable law.
(b) Use of Company Information. In connection with the Services, TRUSTe may have access to Company Transactional IP, including Company Confidential Information and TRUSTe may use such Company Transactional IP and Company Confidential Information to the extent such use is required to provide the Services, to maintain the security and integrity of the Services and TRUSTe's networks and to facilitate or confirm TRUSTe's compliance with its legal obligations, provided, however, that TRUSTe may not use the Company Transactional IP or Company Confidential Information for any other purpose.
5. Service Errors and Remedies
(a) Service Performance. TRUSTe will provide the Services in accordance with the executed Service Order, and the service level commitments contained therein; and in a manner intended to provide for the timely delivery of communications, the accurate consummation of transactions and the ongoing accuracy and integrity of data and communications processed through its networks and its Services and otherwise as provided by the applicable Service Order.
(b) Disclaimer. TRUSTe's Services rely on the interoperability of TRUSTe's Services with the networks of third parties, public switched telephony networks, Internet access providers, international satellite services and other communications facilities and capabilities maintained by persons outside of TRUSTe's control. Accordingly, TRUSTe cannot guarantee that its Services will be available at all times, that its Services will be free from errors, that its networks will be completely secure, or that its Services will be fit for the particular purpose intended by Company.
(c) Sole Remedy. To the extent that a quality-of-service issue is addressed in a Service Level Agreement, Company acknowledges and agrees that the remedies provided for in such Service Level Agreement shall be Company's sole and exclusive remedies for Company's failure to meet a metric set forth in such Service Level Agreement. TRUSTe shall have no obligation in respect of any interruption or defects in the Services that (i) are caused by factors outside of TRUSTe's reasonable control; (ii) resulted from any actions or inactions of Company or any third parties; or (iii) resulted from Company's equipment or software or any third-party equipment or software not within the sole control of TRUSTe.
(a) Company shall defend, indemnify and hold harmless TRUSTe, its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the "TRUSTe Indemnitees"), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys' fees and costs) which any of the TRUSTe Indemnitees may incur resulting from or arising out of any third-party claim related to (i) Company's breach of any representation, warranty, or covenant contained in the Agreement, (ii) Company Content, (iii) claims by Company's end users, or (iv) violation by Company or any Company end user of applicable law.
(b) Subject to the provisions of Section 7(c), TRUSTe shall defend, indemnify, defend and hold harmless Company, its affiliates and their respective present, former and future officers, directors, employees and agents , and their respective heirs, legal representatives, successors and assigns (collectively, the "Company Indemnitees") from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys' fees and costs) which any Company Indemnitees may incur resulting from or arising out of any third-party claim or suit alleging that the Services infringe any U.S. trademark, copyright or trade secret existing on the date of the Agreement. TRUSTe shall have sole control of its defense and all negotiations for settlement in any matter subject to indemnification under this Section. Notwithstanding the foregoing, however, TRUSTe will have no obligation to indemnify any Company Indemnitee for infringement claims arising from (i) use of the Services with third-party products or services where the third-party products or services cause the infringement, (ii) any modification of the Services not authorized by TRUSTe in writing, (iii) the Company Content, or (iv) Company's use of any third-party software, hardware or services.
(c) In connection with any claim that may be subject to indemnification under this Section, the party seeking indemnification (the "Indemnified Party") shall provide the party providing indemnification (the "Indemnifying Party") written notice of such claim promptly after receipt of it, provided, however, that the failure of an Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations except to the extent that the defense of such claim is prejudiced thereby.
(d) If an injunction, decree or judgment is, or in TRUSTe's sole discretion is likely to be, entered providing that Company may not use the Services as contemplated in this Agreement, TRUSTe may, at its sole option and expense, either (i) procure for Company the right to use the Services or affected part thereof as provided in this Agreement; (ii) replace the Services or affected part thereof with other non-infringing services or modify the Services or affected part thereof so as to be non-infringing; or (iii) terminate the applicable Service Order upon written notice to Company.
(e) SERVICE PROVIDER'S DEFENSE AND INDEMNIFICATION OBLIGATIONS IN SECTION 6(b) STATE THE ENTIRE LIABILITY AND OBLIGATION OF SERVICE PROVIDER, AND THE EXCLUSIVE REMEDY OF COMPANY, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE SERVICES.
7. Limitations on Liability
(A) EXCEPT AS EXPRESSLY SET FORTH IN A SERVICE SCHEDULE OR SERVICE LEVEL AGREEMENT, SERVICE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND SERVICE PROVIDER HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO COMPANY HEREUNDER IS PROVIDED "AS IS" WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. SERVICE PROVIDER CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. SERVICE PROVIDER WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEMS OR NETWORKS.
(B) NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY SERVICE SCHEDULE, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
(C) IN NO EVENT WILL EITHER PARTY'S LIABILITY IN CONNECTION WITH THE SERVICES PROVIDED BY TRUSTE UNDER THIS AGREEMENT, WHETHER CAUSED BY FAILURE TO PERFORM, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED ONE MILLION DOLLARS ($1,000,000) IN THE AGGREGATE.
(D)The limitations contained in Sections 7(B) and (C) apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or intentional misconduct.
(a) Agreement. The Agreement shall begin on the date the first Service Order is executed by both parties and shall continue until no Service Orders are in effect.
(b) Service Orders. Unless a Service Order provides otherwise, at the end of any term of service provided in the Service Order, such Service Order will renew each year for an additional twelve-month period unless a party has provided twenty (20) business days' prior notice of its intent not to renew such Service Order.
(a) Scope of this Section. The provisions of this Section 9 apply to (i) any Company subsidiary or affiliate that is organized under the laws of any jurisdiction outside of the United States (a "Non-U.S. Company"), (ii) any Company subsidiary or affiliate that is receiving or utilizing any Services under this Agreement at a location outside the U.S., or (iii) any Company subsidiary or affiliate that at any time pays TRUSTe for any Services using funds originating outside the U.S.
(b) Compliance with OFAC Regulations. Company represents and warrants that neither the Company nor any of its subsidiaries, nor any person controlling, controlled by or under common control with the Company; or its clients is (i) on the list of Specially-Designated Nationals and Blocked Persons maintained by the United States Department of the Treasury, Office of Foreign Asset Control (the "US-OFAC") (currently available at http://treas.gov/offices/enforcement/ofac/sdn/index.shtml) or (ii) is subject to any sanctions programs currently managed by US-OFAC (collectively, the "OFAC Sanctions"). Company agrees promptly to notify TRUSTe in writing if the foregoing representation ceases to be true.
(a) Independent Contractor. TRUSTe and Company are independent contractors and nothing contained in this Agreement places TRUSTe and Company in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
(b) Governing Law; Jurisdiction. Any controversy or claim arising out of, or relating to, or in connection with the Agreement or the relationship of the parties, the formation of the Agreement or a breach of the Agreement, including any claim based upon or arising from an alleged tort, shall be governed by the substantive laws of the State of California (without regard to its rules governing conflicts of law). The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement. Article 2 of the Uniform Commercial Code as adopted and implemented by the State of Delaware shall not apply to the Agreement. ANY CONTROVERSY, CLAIM, SUIT, ACTION OR PROCEEDING ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH THE AGREEMENT OR THE RELATIONSHIP OF THE PARTIES, INCLUDING ANY CLAIM BASED UPON OR ARISING FROM AN ALLEGED TORT, SHALL BE BROUGHT EXCLUSIVELY IN STATE COURT LOCATED IN SAN FRANCISCO COUNTY, CALIFORNIA OR THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH CONTROVERSY, CLAIM, SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY HAVE TO SUCH CHOICE OF LAW, CHOICE OF VENUE, OR THAT SUCH COURT MAY BE IN AN INCONVENIENT FORUM. Company may bring claims against TRUSTe only in Company's individual capacity and not as a plaintiff or class member in any purported class action or representative proceeding.
(c) Headings. The headings herein are for convenience only and are not part of this Agreement.
(d) Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters addressed herein. No additional terms or conditions relating to the subject matter of this Agreement shall be valid or effective unless approved in writing by an authorized representative of TRUSTe. This Agreement may not be modified or amended except by a written instrument executed by the parties hereto.
(e) Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
(f) Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties' signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. TRUSTe may give written notice to Company via e-mail to the Company's e-mail address as maintained in TRUSTe's billing records.
(g) Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
(h) Assignment; Successors. Company may not transfer or assign this Agreement or any of its rights or obligations hereunder without the prior written consent of TRUSTe. Any attempted assignment in violation of the foregoing provision shall be void and have no force or effect whatsoever. TRUSTe may assign its rights and obligations under this Agreement, without the consent of Company. Either party may assign all of its rights under this Agreement in connection with the sale of all or substantially all of its capital stock or assets to a third party. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(i) Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
(j) Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, TRUSTe's records of such execution shall be presumed accurate unless proven otherwise.
(k) Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including without limitation fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment, software or material required for such party to perform its obligations hereunder.
(l) Third-Party Beneficiaries. The parties do not intend to create any third-party beneficiaries of this Agreement, and nothing in this Agreement is intended, nor shall anything herein be construed to create any rights, legal or equitable, in any person other than the parties to this Agreement.
(m) Government Regulations. Company may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with applicable export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Company operates or does business.