Cloud Products Terms of Service
These Terms of Service (these “Terms”) are entered into by and between TrustGrid (as defined below) and the person or entity registering to use our Cloud Products (such entity or individual, the “Subscriber”).
These Terms are effective as of the date that they are accepted by the Subscriber (the “Effective Date”).
ANY SUBSCRIBER INTENDING TO ORDER SERVICES PROVIDED BY TRUSTGRID IS REQUESTED TO READ THESE TERMS OF SERVICE CAREFULLY PRIOR TO PLACING THEIR ORDER, AS THESE TERMS SHALL APPLY TO ANY AND ALL ORDERS, CONTRACTS AND
AGREEMENTS CONCLUDED BETWEEN THE SUBSCRIBER AND TRUSTGRID ON THE SITE. BY SUBSCRIBING TO USE OUR SERVICES ANY SUBSCRIBER EXPLICITLY AGREES TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS REFERRED TO HEREIN. FOR THE
AVOIDANCE OF DOUBT, ANY ORDER MADE ON THE SITE SHALL BE DEEMED AS FULL ACCEPTANCE OF THESE TERMS. IF YOU SHALL NOT AGREE TO ANY PROVISIONS OF THESE TERMS, PLEASE REFRAIN FROM USING THE SITE AND PLACING SUCH ORDER FOR SERVICES. FULL TEXT OF THESE TERMS IS AVAILABLE AT THE SITE AND EACH SUBSCRIBER IS FULLY ENTITLED TO DOWNLOAD, STORE AND RECORD THESE TERMS.
IF THESE TERMS ARE BEING ENTERED INTO BY A SUBSCRIBER THAT IS AN ENTITY, THEN BY STARTING A SUBSCRIPTION TO OUR SERVICES (EVEN FOR A TRIAL PERIOD), THE INDIVIDUAL DOING SO HEREBY REPRESENTS AND WARRANTS THAT HE/SHE IS AUTHORIZED BY SUBSCRIBER TO BIND SUBSCRIBER TO THESE TERMS.
THE SERVICE RENDERED BY TRUSTGRID ON THE SITE IS DEVELOPED AND OFFERED SOLELY ON BUSINESS TO BUSINESS BASIS. TRUSTGRID PROVIDES THE SERVICE ONLY FOR BUSINESS OR PROFESSIONAL PARTNERS AND REFRAINS FROM PROVIDING THE SERVICE TO THE CONSUMERS, UNDERSTOOD AS NATURAL PERSONS WHO ORDER THE SERVICE WITHOUT DIRECT RELATION TO THEIR COMMERCIAL OR PROFESSIONAL ACTIVITY. THEREFORE, EVEN IN THE ABSENCE OF PROVISION BY THE SUBSCRIBER OF FULL DATA INDICATING HIS OR HER CORPORATE OR BUSINESS AFFILIATION, WE SHALL DEEM THAT SUCH SUBSCRIBER ORDERS THE SERVICES FOR THE PURPOSES RELATED DIRECTLY TO HIS OR HERS PROFESSIONAL ACTIVITY.
– “Account” means the user account, user name and password specifically associated with Subscriber with administrative powers. For the avoidance of doubt, each Account is held solely for one Subscriber who is a party to the contract with TrustGrid but each Account may be used by multiple persons authorised by the Subscriber – provided that a User Seat is created for each, named team member and subject to the User Seat limits of chosen Subscription Plan.
– “Confidential Information” has the meaning ascribed to it in Section 10.
– “Intellectual Property Rights” means all forms of proprietary rights, titles, interests and ownership relating to patents,
copyrights, trademarks, trade dresses, trade secrets, know-how, mask works, droit moral (moral rights) and all similar rights of every type that may exist now or in the future in any jurisdiction, including without limitation all applications and registrations therefore and rights to apply for any of the foregoing.
– “Login Credentials” has the meaning ascribed to it in Section 3.3.
– “Malicious Software” has the meaning ascribed to it in Section 2.3.
– “Payment” has the meaning ascribed to it in Section 4.1.
– “Planned Downtime” has the meaning ascribed to it in Section 2.2.
– “Prohibited Jurisdiction” has the meaning ascribed to it in Section 13.
– “Registration” has the meaning ascribed to it in Section 3.2.
– “Service” means the user interface design tool hosted and made available as a software-as-a-service called “TrustGrid”. References to “Service” herein shall be deemed to refer to the specific version of the Service referenced in the Subscription Plan.
– “Subscriber Data” means any and all data, information, content and materials created by Subscriber through use of the Service or uploaded or imported into the Service by or on behalf of Subscriber, including without limitation all design and wireframe content.
– “Subscription Plan” means the TrustGrid subscription plan Subscriber has elected to subscribe to, as described on TrustGrid’s website.
– “Subscription Term” has the meaning ascribed to it in Section 6.1.
– “Taxes” has the meaning ascribed to it in Section 4.6.
– “Usage Data” has the meaning ascribed to it in Section 2.10.
2.1. Provision of Service.
Subject to these Terms, TrustGrid shall provide Subscriber the right to access and use the Service during the Subscription Term consistent with the Subscription Plan Subscriber has subscribed to, solely: (i) for Subscriber’s own use for purposes of creating a user experience design or wireframe, saving and downloading the design or wireframe and sharing it with third parties via hyperlinks; (ii) in the manner enabled by TrustGrid; and (iii) in accordance with all applicable documentation and any usage limitations, rules or guidelines TrustGrid may provide. TrustGrid reserves the right to further develop the Service, and thus to modify and update the features and functionality of the Service occasionally in its sole discretion. Except for as expressly set forth herein, Subscriber is solely responsible for purchasing and configuring all hardware, software and services that may be necessary or desirable for Subscriber’s use of the Service (in particular, the technical requirements set forth at Community shall be met by the Subscriber to use the Service). Subscriber agrees to use the Service in compliance with all applicable laws, rules and regulations, including without limitation laws relating to non-discrimination in employment, wage and hour laws and all other employment and labor laws.
2.2. Service Availability.
TrustGrid will use commercially reasonable efforts to ensure that the Service is available twenty-four hours a day, seven days a week. However, TrustGrid makes no representation, warranty or guarantee regarding the continuous availability or performance of the Service. Subscriber acknowledges that the Service may be unavailable for use occasionally without notice to Subscriber. TrustGrid will use commercially reasonable efforts to make the Service continuously available to Subscriber, subject to scheduled maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment. Reasonable steps will be taken by TrustGrid to minimize such disruption where it is within TrustGrid’s reasonable control. TrustGrid reserves the right to temporarily suspend Subscriber’s access to and use of the Service: (i) during planned downtime for upgrades and maintenance to the Service, of which TrustGrid will use commercially reasonable efforts to notify Subscriber in advance via e-mail or through the Service (“Planned Downtime”); (ii) if TrustGrid suspects or detects any Malicious Software connected to Subscriber’s Account or use of the Service by Subscriber. TrustGrid will use commercially reasonable efforts to schedule Planned Downtime for nights, weekends and other off-peak hours.
Subscriber acknowledges that use of the Service is provided for Subscriber’s own design purposes only, and agrees not to use the Service for the benefit of any third party (provided that this does not prevent Subscriber from using the Service to perform design work for a Subscriber customer within the framework of his or hers commercial or professional activity). Subscriber agrees not to, not to attempt to, nor allow any third party to: (i) copy, distribute, lend, license, sublicense, sell, resell, time share, lease or transfer the Service or otherwise commercially exploit or make the Service available to any third party, (ii) decipher, decompile, reverse engineer or disassemble the Service or otherwise attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Service, (iii) adapt, modify or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (iv) create derivative works based on the Service; (v) modify, remove or obscure any copyright, trademark, patent or other notices or legends that appear in the Service or during the use and operation thereof; (vi) falsely imply any association or sponsorship with TrustGrid; (vii) publicly disseminate performance information or analysis (including benchmarks) relating to the Service; (viii) utilize any software or technology designed to circumvent any license keys or copy protection used in connection with the Service; (ix) use the Service in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (x) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (xi) use the Service to knowingly post, send, transmit, upload, link to or store any viruses, malware, Trojan horses, time bombs or any other similar harmful software (“Malicious Software”); (xii) use the Service to knowingly post, send, transmit, upload, link to or store any content that is unlawful, racist, hateful, abusive, libelous, obscene or discriminatory; or (xiii) use the Service to develop a competitive service or product offering. Subscriber may not use any automated means, including agents, robots, scripts or spiders, to access or manage the Service, except solely to the extent as may be specifically enabled and authorized by TrustGrid. Subscriber is responsible for compliance with the provisions of these Terms by any and all persons using the Service under Subscriber’s Account.
Without limiting the generality of Section 6.3, TrustGrid may limit, suspend or terminate Subscriber’s access to or use of the Service and/or terminate these Terms at any time if: (i) Subscriber’s bandwidth usage significantly exceeds the average bandwidth usage (as determined solely by TrustGrid) of other TrustGrid subscribers; (ii) more than one person attempts to access a Subscriber’s Account using the same Login Credentials; (iii) in the sole discretion of TrustGrid, such action is necessary to prevent material errors or harm to any system or network, or to limit TrustGrid’s liability; or (iv) Subscriber attempts to access or use the Service in an unauthorized manner, including without limitation any attempt to gain access to data or information relating to any other users of the Service or any use that infringes third party Intellectual Property Rights or violates any applicable law, rule or regulation.
2.5. Third Party Services.
The Service may include features or functionality that interoperate with online services operated by third parties (such services, “Third Party Services”), pursuant to agreements between TrustGrid and the operators of such Third Party Services (such agreements, “Third Party Agreements” and such operators, “Operators”) or through application programming interfaces or other means of interoperability made generally available by the Operators (“Third Party APIs”) which TrustGrid does not control. Third Party Agreements and Third Party APIs (and the policies, terms and rules applicable to Third Party APIs) may be modified, suspended or terminated at any time. TrustGrid shall have no liability with respect to any of the foregoing. Without limiting the foregoing, when Subscriber uses functionalities which interoperate with online services operated by Third Parties, the Subscriber is responsible for ensuring that Subscriber’s use of the Service in connection with Third Party Services complies with all policies, terms and rules applicable thereto.
Provided that Subscriber timely pays all Payment due hereunder, TrustGrid shall provide during the Term reasonable technical support to Subscriber regarding the use of the Service during TrustGrid’s normal business hours (which currently are and 9am – 5pm Pacific Standard Time and 8am – 5pm Central European Time, but may be changed from time to time) via e-mail sent to email@example.com. Responses from TrustGrid may be delayed if the inquiry is submitted on the weekend or during a weekday after business hours.
In the event the Subscriber finds any malfunctions or errors of the Service which constitutes infringement of these Terms of Service attributable to TrustGrid, he shall file a complaint via e-mail sent to firstname.lastname@example.org. Such complaints shall be dealt with by TrustGrid during normal business hours via e-mail sent to the Subscriber, no later than within five (5) business days from delivery of such complaint. Responses from TrustGrid may be delayed if the complaint is incomplete, that is, fails to provide the details required to identify such malfunction or infringement.
Subscriber acknowledges and agrees that TrustGrid has no obligation to monitor or edit the Subscriber Data, and that as between the parties Subscriber is solely responsible therefor. TrustGrid reserves the right remove any Subscriber Data which TrustGrid becomes aware may violate these Terms or infringe, misappropriate or violate any third party Intellectual Property Right or privacy right.
2.9. Subscriber-Owned Data.
As between the parties, Subscriber shall own all right, title and interest in and to Subscriber Data. The Subscriber explicitly authorises TrustGrid to process the Subscriber Data for the limited reasons and purposes listed hereinunder which is called “a license” in the legal language. The Subscriber Data remains the Subscriber’s property but it’s usage under such limited license by TrustGrid may be necessary in particular to perform the Service, improve the Service, use third-party service providers or to perform TrustGrid’s legal obligations. Therefore, Subscriber hereby grants TrustGrid a non-exclusive, worldwide license to use, reproduce, modify, create derivative works of, display, perform and transmit the Subscriber Data in connection with TrustGrid’s operation of the Service and as otherwise authorized herein. TrustGrid may use and disclose Subscriber Data as follows: (i) TrustGrid may use Subscriber Data for TrustGrid’s internal business purposes (such as analyzing usage of and developing and improving TrustGrid’s products and services); (ii) TrustGrid may disclose Subscriber Data to its third-party service providers that assist it in making the Service available as is reasonably necessary for such assistance, subject to appropriate confidentiality obligations; and (iii) TrustGrid may disclose Subscriber Data as may be required by law or legal process.
2.10. Usage Data.
As between the parties, TrustGrid shall own all right, title and interest in and to all data collected by TrustGrid in connection with the operation of the Service and Subscriber’s use thereof (“Usage Data”). Usage Data may include, by way of example and not limitation, when and how often Subscriber uses the Service and which Service features are used the most often. TrustGrid will not disclose Usage Data or Subscriber Data to any third party in a manner that identifies Subscriber without Subscriber’s consent other than (i) disclosure to the TrustGrid’s third-party service providers who use it for the benefit of TrustGrid and the Subscriber and subject to reasonable confidentiality terms; or (ii) as may be required by law or legal process.
Subscriber acknowledges that: (i) the Service uses the Internet for data transfer and Internet-connected servers to store Subscriber Data and Usage Data; (ii) while TrustGrid uses commercially reasonable security measures with respect to such servers, no security measures are 100% effective, and (iii) that Internet communications have inherent insecurities. As such, TrustGrid does not represent or warrant the security of the Subscriber Data.
3.1. Service Account.
When Subscriber signs up and pays for a Subscription Plan, TrustGrid will provide Subscriber with an Account within the Service with and administrative powers.
3.2. Login Credentials.
Subscriber’s Account will be provided with a unique user name and password (“Login Credentials”). Subscriber is responsible for the activities of any and all persons accessing the Service using Login Credentials. Login Credentials must not be shared among multiple individuals. Each of the users of the Service shall use all reasonable means to secure their Login Credentials and shall promptly notify TrustGrid if it suspects that the user name and password have been compromised. Subscriber acknowledges that use of Subscriber’s Account by any person or entity other than Login Credentials holder shall constitute a material breach of these Terms.
TrustGrid may communicate with Subscriber using the e-mail provided by Subscriber during Registration or using the messaging options within the Service (in-app messaging). TrustGrid and Subscriber may choose to communicate with other means subject to preceding mutual arrangements between TrustGrid and Subscriber by an e-mail or in writing. Subscriber agrees that all agreements, notices, disclosures and other communications provided by TrustGrid electronically satisfy any legal requirement that such communication be in writing.
4. Subscription plan and Payment
a) Payment. All charges associated with Subscriber’s access to and use of the Service (“Payment”) are due according to a monthly or yearly pre-payment schedule that automatically charges Subscriber. If Subscriber fails to pay the Payment within five (5) business days of TrustGrid’s notice to Subscriber that payment is due or delinquent, or if Subscriber does not update payment information upon TrustGrid’s request, in addition to TrustGrid’s other remedies, TrustGrid may suspend or terminate access to and use of the Service by Subscriber. All sales are final. TrustGrid reserves the right to adjust pricing for the Service in any manner and at any time as TrustGrid may determine in its sole and absolute discretion. Except as otherwise expressly provided for in these Terms, any price changes to Subscriber’s Service will take effect following e-mail notice to Subscriber, starting from the new Subscription term.
b) Recurring Billing. BY STARTING A SUBSCRIPTION AND PROVIDING OR DESIGNATING A PAYMENT METHOD, SUBSCRIBER AUTHORIZES TrustGrid TO CHARGE TO SUBSCRIBER’S PAYMENT METHOD TrustGrid’S STANDARD SUBSCRIPTION CHARGES FOR THE SUBSCRIPTION PLAN TO WHICH SUBSCRIBER HAS SUBSCRIBED AS OF THE TIME SUCH SUBSEQUENT TERM COMMENCES, AND ANY OTHER CHARGES SUBSCRIBER MAY INCUR IN CONNECTION WITH SUBSCRIBER’S USE OF THE SERVICES. SUBSCRIBER ACKNOWLEDGES THAT THE AMOUNT BILLED MAY VARY FROM PERIOD TO PERIOD FOR REASONS THAT MAY INCLUDE DIFFERING AMOUNTS DUE TO PROMOTIONAL OFFERS AND/OR CHANGING OR ADDING SERVICES, AND SUBSCRIBER AUTHORIZES TrustGrid TO CHARGE SUBSCRIBER’S PAYMENT METHOD FOR SUCH VARYING AMOUNTS, WHICH MAY BE BILLED PERIODICALLY IN ONE OR MORE CHARGES.
4.2. Payment Processing.
All fees are payable in Australian Dollars. TrustGrid uses third-party service providers (each, a “Processor”) for payment services (e.g., credit card transaction processing, merchant settlement, and any related service fees). TrustGrid’s Processors are currently Stripe Inc. in Australia. By using the Site or Services, Subscriber agrees to be bound by Processor’s Terms of Service (currently accessible at: https://stripe.com/us/terms;). Subscriber hereby consents to provide and authorize TrustGrid and Processor to share any information and payment instructions Subscriber provides to the extent required to complete the payment transactions in accordance with these Terms, including personal, financial, credit card payment, and transaction information. If Subscriber is interested in an alternative payment mechanism, please contact TrustGrid at email@example.com.
The Subscriber agrees that all invoices issued by TrustGrid in relation to the Service and Subscription Plan, shall be issued solely in an electronic form (PDF) and sent to the email address indicated by the Subscriber.
4.4. Payment Information.
All payment information that Subscriber provides in connection with the Services must be accurate, current and complete. SUBSCRIBER REPRESENTS AND WARRANTS THAT SUBSCRIBER HAS THE LEGAL RIGHT TO USE ANY PAYMENT CARD(S) OR OTHER PAYMENT MEANS USED TO PAY ANY FEE OR CHARGE. By providing TrustGrid or Processor with Subscriber’s payment information, Subscriber agrees that Processor is authorized to immediately invoice Subscriber for all fees and charges due and payable to TrustGrid hereunder and that no additional notice or consent is required. Subscriber agrees to immediately notify TrustGrid and Processor (as applicable) of any change to Subscriber’s payment information.
4.5. Refunds on Termination.
No refunds or credits for Payment or other fees or payments will be provided to Subscriber if Subscriber elects to terminate Subscriber’s subscription to the Service or cancel Subscriber’s Account prior to the end of Subscriber’s then effective Subscription Term.
4.6. Deletion of Subscriber Data.
Unless otherwise stated, TrustGrid’s charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Subscriber is responsible for paying Taxes except those assessable against TrustGrid based on its net income, and Subscriber will indemnify and hold harmless TrustGrid and Processor from any and all Taxes, including sales tax, based on any payments made or received by Subscriber in connection with the Services. Any taxes imposed on payments will be Subscriber’s sole responsibility. TrustGrid will invoice Subscriber for such Taxes if TrustGrid believes it has a legal obligation to do so and Subscriber agrees to pay such Taxes if so invoiced. If TrustGrid is legally required to report such information, Subscriber will provide TrustGrid with official receipts issued by the appropriate taxing authority, or other such evidence that Subscriber has paid all applicable taxes.
5.1. TrustGrid Intellectual Property Rights.
As between the parties, TrustGrid owns all right, title and interest (including all Intellectual Property Rights) in and to the Service (including without limitation all underlying source code, algorithms and models) and any software, technology, materials and information owned by TrustGrid prior to the Effective Date or created, authored, developed, made, conceived or reduced to practice by TrustGrid after the Effective Date. Nothing herein shall be construed to transfer any rights, title or ownership of the Service or any TrustGrid software, technology, materials, information or Intellectual Property Rights to Subscriber.
5.2. Subscriber’s Feedback.
Subscriber is not required to provide any ideas, feedback or suggestions regarding any of TrustGrid’s products or services to TrustGrid. To the extent Subscriber does provide any Feedback to TrustGrid, Subscriber agrees to assign and hereby does assign all right, title and interest in and to such Feedback to TrustGrid and acknowledges that TrustGrid may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other consideration to Subscriber.
6. Subscription Term and Termination
6.1. Subscription Term.
These Terms shall be effective as of the Effective Date and will terminate at the sooner of (i) the end of the Free Trial, if Subscriber does not subscribe to the Service, or (ii) the end of the Subscription Plan period (the “Subscription Term”).
UNLESS CANCELLED PURSUANT TO SECTION 6.3 (CANCELLATION) BELOW BEFORE THE END OF SUBSCRIBER’S CURRENT SUBSCRIPTION TERM THAT HE OR SHE WANTS TO CANCEL THE SUBSCRIPTION PLAN, SUBSCRIBER’S SUBSCRIPTION PLAN WILL AUTOMATICALLY CONTINUE AND SUBSCRIBER AUTHORIZES TrustGrid (WITHOUT NOTICE, UNLESS REQUIRED BY APPLICABLE LAW) TO COLLECT THE THEN-APPLICABLE SUBSCRIPTION FEE AND ANY TAXES, USING ANY ELIGIBLE PAYMENT METHOD WE HAVE ON RECORD FOR SUBSCRIBER.
Either Subscriber or TrustGrid may elect to terminate Subscriber’s Account and subscription to the Service as of the end of Subscriber’s then current Subscription Term by providing notice, in accordance with these Terms, on or prior to the date two (2) days preceding the end of such Term.
A SUBSCRIBER MAY CANCEL HIS OR HER ACCOUNT THROUGH THE TrustGrid WEB PAGE (TrustGrid.COM), OR SUBSCRIBER CAN TERMINATE THE SUBSCRIPTION VIA E-MAIL SENT TO HELLO@TrustGrid.COM. UNLESS SUBSCRIBER’S ACCOUNT AND SUBSCRIPTION TO THE SERVICE IS SO TERMINATED, SUBSCRIBER’S SUBSCRIPTION TO THE SERVICE WILL RENEW ON A REGULAR BASIS.
6.4. Termination by the Subscriber.
If Subscriber terminates Subscriber’s subscription to the Service or cancels Subscriber’s Account prior to the end of Subscriber’s then effective Subscription Term, or TrustGrid effects such termination or cancellation pursuant to Section 2.4, in addition to other amounts Subscriber may owe TrustGrid, Subscriber must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable by Subscriber in the event Subscriber terminates Subscriber’s subscription to the Service or cancel Subscriber’s Account as a result of a material breach of these Terms by TrustGrid, provided that Subscriber provides advance notice of such breach to TrustGrid and afford TrustGrid not less than thirty (30) days to reasonably cure such breach.
6.5. Termination by the TrustGrid.
TrustGrid reserves the right to modify, suspend or terminate the Service (or any part thereof), Subscriber’s Account or Subscriber’s right to access and use the Service, and remove, disable and discard any of the Subscriber Data if TrustGrid believes that Subscriber has violated these Terms. Unless legally prohibited from doing so, TrustGrid will use commercially reasonable efforts to contact Subscriber directly via email to notify Subscriber when taking any of the foregoing actions. TrustGrid shall not be liable to Subscriber or any other third party for any such modification, suspension or discontinuation of Subscriber’s right to access and use the Service. Any suspected fraudulent, abusive, or illegal activity by Subscriber may be referred to law enforcement authorities at TrustGrid’s sole discretion.
6.6. Effect of Termination.
All rights and obligations of the parties hereunder shall terminate upon expiration or termination of these Terms, provided that Sections 1, 2.3 through 2.5, 2.8 through 2.11, 4 (with respect to any accrued but unpaid amounts), 5, 6.3, 6.4, 6.5 and 7 through 12 shall survive expiration or termination of these Terms.
7. Representations and warranties
Each party represents and warrants to the other party that: (i) it has the full power and authority to enter into these Terms; and (ii) these Terms constitute a legal, valid and binding obligation when executed and delivered.
Subscriber represents and warrants to TrustGrid that: (i) it has all right, title, and interest in and to the Subscriber Data necessary for its use in connection with the Service; (ii) it shall not use the Service in a manner or in connection with any activity that would violate any law, rule or regulation, including those relating to privacy or data protection, employment and labor laws or the CAN-SPAM Act; and (iii) the Subscriber Data (including the storage, reproduction, and use thereof as contemplated hereunder) does not and will not (x) infringe upon, violate or misappropriate the Intellectual Property Rights of any third party or (y) slander, defame or libel any person.
Subscriber agrees to, at its own expense, defend, indemnify and hold harmless TrustGrid and its directors, officers and employees from and against any liabilities, damages, losses, judgments, costs, expenses (including reasonable attorney’s fees), claims, actions, demands and suits arising out of or relating to any actual or alleged breach by Subscriber of any covenant, representation or warranty of these Terms or any use or misuse by Subscriber of the Service, except to the extent any of the foregoing arises directly from the gross negligence or willful misconduct of TrustGrid.
THE SERVICE AND SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS, AND EACH PARTY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR PERFORMANCE. TrustGrid AND ITS SUPPLIERS, LICENSORS, PARTNERS AND SERVICE PROVIDERS DO NOT WARRANT THAT THE FUNCTIONALITY PROVIDED BY THE SERVICE WILL BE CORRECT, UNINTERRUPTED, TIMELY OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. TrustGrid DOES NOT WARRANT THE RESULTS OF USE OF THE SERVICE.
Each party shall keep confidential all information and materials provided or made available by the other party that is marked as confidential or proprietary or (for orally disclosed information) is identified as confidential or proprietary at the time of disclosure and confirmed in writing (including e-mail) as such within fifteen (15) days of the disclosure (“Confidential Information”). The features, functionality and content of the Service, any Service documentation, and any information regarding planned modifications or updates to the Service or other TrustGrid products and services constitutes Confidential Information of TrustGrid. Each party shall keep and instruct its employees and agents to keep Confidential Information confidential by using at least the same care and discretion as used with that party’s own confidential information, but in no case less than a prudent and reasonable standard of care. Neither party shall use Confidential Information other than for purposes of performing
its obligations hereunder or as authorized by the disclosing party. Information or materials shall not constitute Confidential Information if it is: (i) in the public domain through no fault of the receiving party, (ii) known to the receiving party prior to the time of disclosure by the disclosing party, (iii) lawfully and rightfully disclosed to the receiving party by a third party on a non-confidential basis, (iv) developed by the receiving party without reference to Confidential Information or (v) required to be disclosed by law or legal process, provided that the receiving party promptly provide notice to the disclosing party of such request or requirement so the disclosing party may seek appropriate protective orders. If any party, its employees or agents breaches or threatens to breach the obligations of this Section 10, the affected party may seek injunctive relief from a court of competent jurisdiction, in addition to its other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.
11. Limitation of liability
TrustGrid SHALL NOT BE LIABLE TO SUBSCRIBER IN CONNECTION WITH THESE TERMS FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT TrustGrid WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT WILL TrustGrid’S AGGREGATE LIABILITY AND DAMAGES IN CONNECTION WITH THESE TERMS EXCEED THE AGGREGATE PAYMENTS MADE BY SUBSCRIBER TO TrustGrid HEREUNDER DURING THE TWELVE MONTHS PRECEDING THE DATE OF THE CLAIM. THE PARTIES AGREE THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY SET FORTH IN THIS SECTION 11 WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS ARE FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND REGARDLESS OF THE THEORY OF LIABILITY. THE SUBSCRIBER AGREES THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY UNDER THIS SECTION 11 CONSTITUTE A FUNDAMENTAL BASIS OF HIS BARGAIN. SUBSCRIBER ACKNOWLEDGES THAT THE ALLOCATIONS OF RISK AND DISCLAIMERS OF WARRANTIES AND LIABILITIES HEREUNDER ARE IN PART REFLECTED IN THE AMOUNT OF PAYMENT AND ALLOW TrustGrid TO GRANT THE SUBSCRIBER ABILITY TO USE THE SERVICE FOR A REASONABLE CONSIDERATION.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER. IN THESE JURISDICTIONS, TrustGrid’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
12.1. Relationship of the Parties.
The parties are independent contractors with respect to each other. These Terms do not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. No party shall have any right to obligate or bind any other party in any manner whatsoever.
12.2. Third-Party Beneficiaries.
Nothing herein shall give, or is intended to give, any rights of any kind to any third parties.
Subscriber may not, directly or indirectly, assign any of its rights or obligations under these Terms without the prior written consent of TrustGrid, which consent will not be unreasonably withheld. Any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of the assets of Subscriber or similar transaction shall be deemed to constitute an attempted assignment of these Terms. TrustGrid may, without Subscriber’s consent, assign these Terms with Subscriber to any affiliate or in connection with any merger or change of control of TrustGrid or the sale of all or substantially all of TrustGrid’s assets provided that any such successor agrees to fulfill its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms inure to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.
12.4. Force Majeure.
Neither party will be responsible for any failure or delay in its performance under these Terms due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
All notices under the terms of these Terms shall be given in writing and sent by registered or certified mail, with postage prepaid and return receipt requested, to (with respect to TrustGrid) the TrustGrid address noted in the preamble of these Terms and (with respect to Subscriber) to any Subscriber business address. Notices shall be sent to the attention of the “Legal Department” of each party. All notices shall be presumed to have been given three (3) business days following deposit in the mail as set forth in the foregoing.
An amendment of these Terms shall be binding upon the parties so long as it is in writing and executed by both parties or is presented by TrustGrid electronically through the Service and accepted in “click-to-agree” form by Subscriber. No regular practice or method of dealing between the parties shall modify, interpret, supplement or alter in any manner the express terms of these Terms.
12.7. Governing Law.
These Terms shall be governed by, and construed in accordance with, the laws of New South Wales, without reference to conflicts of laws principles.
The parties agree that the state and federal courts in New South Wales will have exclusive jurisdiction and venue under these Terms, and the parties hereby agree to submit to such jurisdiction exclusively.
12.9. Entire Terms.
These Terms constitute the complete, final and exclusive Terms between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, Terms or communications between them concerning the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.