Definitions. The following capitalized terms shall have the meanings set forth below (and the following provisions are hereby agreed to by the parties):
“Authorized Users” means designated individuals authorized by Customer to access and use the Licensed Software on behalf of Customer under this Agreement and who have agreed to comply with the applicable terms and conditions of this Agreement.
“CCPA” means the California Consumer Privacy Act of 2018 and as amended over time.
“Customer Account Data” means any Personal Information provided to TrueVault in connection with the services offered under this Agreement, including but not limited to contact information, account information, and billing information. Customer Account Data does not include Customer Consumer Data.
“Customer Consumer Data” means any Personal Information provided to TrueVault for Processing on Customer’s behalf in order to provide the services offered under this Agreement. Customer Consumer Data includes but is not limited to Personal Information about Customer’s website visitors, customers, and end-users.
“Data Controller” means the entity which, alone or jointly with others, determines the purposes and means of Processing Personal Information, which may include, as applicable, a “Business” as defined in CCPA, and any other analogous term under Data Protection Laws.
“Data Protection Laws” means CCPA, the General Data Protection Regulation (EU) 2016/679, and other analogous laws that apply to the Processing of Personal Information.
“Data Processor” means the entity that Processes Personal Information on behalf of the Data Controller, which may include, as applicable, a “Service Provider” as defined in CCPA, and any other analogous term under Data Protection Laws.
“Documentation” means the user documentation for the Licensed Software that TrueVault makes available to Customer and any updates to such documentation provided by TrueVault from time to time.
“Effective Date” means the date of last signature on the applicable Order Form.
“License Term” means, unless otherwise set forth on Order Form, the period commencing on the earlier of (a) Customer’s first use of the Services or (b) seven (7) days after the Effective Date, and extending for the initial period set forth on Order Form, or, if no initial period is specified, one (1) year. Thereafter, the License Term will automatically renew for renewal periods equal in length to the initial period set forth on Order Form or, if Order Form does not specify an initial period, for additional one (1) year renewal periods, unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current License Term. Once established on an Order Form, the length of the initial period and corresponding renewal periods will not be altered by any subsequent amendment to this Agreement, unless the parties expressly agree otherwise in writing.
“Licensed Software” means TrueVault’s hosted software identified on the Order Form and any updates thereof provided by TrueVault from time to time during the License Term.
“Personal Information” means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.
“Order Form” means the order form signed by Customer and TrueVault to which these Terms and Conditions are attached. The parties may amend the Order Form from time to time by written agreement signed by both parties.
“Territory” means the United States.
“Third Party Accounts” means Customer’s third party accounts in connection with which Customer will use the Licensed Software.
“Third Party Tools” means the third party software, services and tools identified by TrueVault for which Customer must have obtained licenses and subscriptions, as applicable, for the duration of the License Term.
License and Obligations.
License. Subject to Customer’s compliance with the terms and conditions of this Agreement, TrueVault grants to Customer a personal, nonexclusive, non-transferable, non-sublicenseable license, during the License Term to: (a) access and use the Licensed Software, subject to the restrictions described in the Order Form; and (b) use and copy the Documentation in support of Customer’s authorized use of the Licensed Software.
Authorized Users. Subject to the terms and conditions of this Agreement, Customer may permit Authorized Users to exercise the licenses granted to Customer in Section 2.1 on Customer’s behalf and for the sole benefit of Customer in compliance with the terms and conditions of this Agreement, provided that all actions and omissions of Authorized Users in exercising such licenses shall be deemed the actions and omissions of Customer under this Agreement. Customer will be responsible and liable to TrueVault for any breach of the applicable terms of this Agreement by any of its Authorized Users. Customer acknowledges that even if Authorized Users are required to agree to other terms and conditions applicable to Authorized Users generally in their access and use of the Licensed Software, such terms and conditions between Authorized Users and TrueVault shall not affect the obligations or liability of Customer to TrueVault under this Agreement.
Restrictions. Customer agrees (on behalf of itself and its Authorized Users) not to: (a) access or use the Licensed Software or Documentation in any way not expressly permitted under Section 2.1 hereof or in a manner not in compliance with applicable law; (b) sell, rent, lease, sublicense, pledge, assign (except as permitted under Section 10.2) or otherwise transfer Customer’s rights, in whole or in part, to access and use the Licensed Software or Documentation to any third party or otherwise make the functionality of the Licensed Software available to third parties; (c) modify, adapt, translate or create derivative works based on the Licensed Software or Documentation; (d) use or access the Licensed Software or Documentation to create a product or service which is similar to or competitive with any offerings of TrueVault; (e) decompile, disassemble or otherwise reverse engineer, or determine or attempt to determine any source code, algorithms, methods, or techniques used or embodied in, the Licensed Software; or (f) interfere with or disrupt the integrity, security features or performance of the Licensed Software, any associated systems or networks, or third-party data contained therein or otherwise attempt to gain unauthorized access to the Licensed Software or any associated systems or networks by penetration testing or otherwise. Customer will not permit or encourage any third party to do any of the foregoing.
Feedback. With respect to comments, suggestions, enhancement requests, recommendations or other feedback provided by Customer (“Feedback”), TrueVault has the right to use, implement, disclose and otherwise exploit the Feedback for any and all purposes without restriction or a duty to account to Customer.
Support. During the License Term, TrueVault will provide TrueVault’s standard technical support services for the Licensed Software in accordance with TrueVault’s then-effective standard support policy at no additional charge to Customer. Under its standard support policy, TrueVault will provide technical support for the Licensed Software twenty-four (24) hours per day, five (5) days per week, excluding weekends and national U.S. holidays. Standard support will be provided via TrueVault’s web-based ticketing system, and support requests must be initiated from a person or machine with which TrueVault's support team can interact. Support requests may be initiated from within the Licensed Software.
Customer Data. As between Customer and TrueVault, any Personal Data provided by Customer to TrueVault or transmitted by Customer into the Licensed Software (“Customer Data”) shall be exclusively owned by Customer, who will ensure and be responsible for the accuracy, completeness and legality of the Customer Data. Customer hereby grants to TrueVault a worldwide, non-exclusive, royalty-free, fully paid up, non-transferable (except as permitted under Section 10.2) right and license, during the License Term, to use, store, process, modify, reproduce, distribute and display Customer Data for the sole purposes of providing the Licensed Software, performing its obligations under this Agreement and complying with applicable law or legal requirements.
Usage Data. During and after the License Term, TrueVault has the right to: (a) internally use, store, process, modify and reproduce the Usage Data for TrueVault’s internal business purposes, including development, diagnostic, forecasting, planning, analysis and corrective purposes and for otherwise improving and enhancing the Licensed Software; and (b) distribute, disclose and otherwise exploit in any manner Usage Data for TrueVault’s business purposes, including disclosure within its public statements and marketing materials describing and/or promoting TrueVault and/or the Licensed Software. “Usage Data” means anonymized and aggregated metric data pertaining to the use of the Licensed Software, which in all instances (i) neither identifies Customer nor, whether alone or in combination with other data, is capable of identifying an individual and (ii) neither is attributed to Customer nor, whether alone or in combination with other data, is capable of being attributed to Customer. Usage Data includes data that has been combined into databases which include third party data.
Privacy Compliance by TrueVault. With regard to Processing Customer Account Data, the parties acknowledge that TrueVault is a Data Controller. With regard to Processing Customer Consumer Data, the parties acknowledge that TrueVault is a Data Processor. Customer Consumer Data will only be Processed as permitted under this Agreement and the Data Processing Agreement, which is hereby incorporated by reference.
Scope of Coverage. The Licensed Software is intended to support Customer’s compliance with a limited and specific set of privacy laws. The complete list, which may be amended from time to time, of privacy laws currently covered by the Licensed Software is available online at the following URL: https://www.truevault.com/privacy-laws-covered-by-truevault-products.
Fees.
Payment. Customer agrees to pay (and shall remain obligated to pay for the entire License Term) the fees described on the Order Form for the Licensed Software. All fees payable by Customer to TrueVault will be due and payable by Customer within fifteen (15) days after the invoice date. Invoices will be sent to Customer’s billing contact set forth in the Order Form. A valid credit card is required for paying accounts unless Customer pays for Services annually, in which case payment via check or ACH is acceptable. All fees are billed in advance in accordance with the Order Form. There will be no refunds or credits for partial months of service, annual payments, or refunds for months unused with an open account. No exceptions will be made. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, which Customer is responsible for paying. Any amounts not paid by the due date thereof will bear interest at the lower of one percent (1.0%) per month or the highest rate permitted by applicable law. TrueVault reserves the right to shut-off the Licensed Software if Customer’s payment of any fees is delinquent, and Customer fails to pay any delinquent amounts within fifteen (15) days after receipt of notice of such delinquency from TrueVault. Additionally, TrueVault is entitled to recover any reasonable sums expended in connection with the collection of fees or other amounts not paid when due, including reasonable attorneys’ fees.
Taxes. The fees payable by Customer to TrueVault under this Agreement are exclusive of any and all taxes, levies or duties imposed by any local, state, federal or international taxing authority, including any applicable, sales, VAT, use, excise, and withholding taxes based on the transactions or payments made by Customer to TrueVault under this Agreement (other than taxes based on TrueVault’s net income) (collectively, “Taxes”). Customer shall pay and be responsible for all such Taxes and will indemnify TrueVault from and against any and all such Taxes.
Confidential Information.
Confidential Information. Each party to this Agreement acknowledges that, in the course of performing under this Agreement, each party (as a receiving party) may obtain or otherwise learn the Confidential Information of the other party (as the disclosing party). “Confidential Information” means any information relating to a disclosing party, its business, technology, suppliers, licensors, resellers, distributors, customers, and third parties to whom the disclosing party has an obligation of confidentiality, whether in tangible or intangible form, which is either marked or designated as “confidential” or “proprietary,” or disclosed under circumstances indicating its confidential or proprietary nature, or otherwise would be known to be confidential or proprietary by a reasonable person. The Confidential Information of a disclosing party shall be owned exclusively by the disclosing party. Confidential Information includes Customer Consumer Data.
Obligations. The receiving party agrees: (a) to protect the Confidential Information of the disclosing party from unauthorized dissemination, disclosure and use; (b) to use the Confidential Information solely for performing its obligations and exercising its rights hereunder; (c) not to disclose any Confidential Information, or any part or parts thereof, except to the receiving party’s employees and contractors who are aware of the confidentiality obligations imposed by this Section 4.2 and have agreed to comply with the requirements of this Section 4.2; and (d) not to disclose or otherwise provide to any other third party, without the prior written consent of the disclosing party, any Confidential Information or any portion thereof. The receiving party shall remain liable for any non-compliance of such employee or contractor with the terms of this Section 4.2. The receiving party shall take the same degree of care that it uses to protect its own highly sensitive confidential and proprietary information of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized dissemination, disclosure or use of the Confidential Information.
Exclusions. The foregoing restrictions pertaining to Confidential Information shall not apply to any Confidential Information that: (a) was or becomes publicly known through no fault of or breach of this Agreement by the receiving party; (b) was known by the receiving party before receipt from the disclosing party without any confidentiality restrictions; (c) becomes known to the receiving party without confidential or proprietary restriction from a source that does not owe a duty of confidentiality to the disclosing party with respect to such Confidential Information; or (d) is independently developed by the receiving party without the use of, reference to, or access to the Confidential Information of the disclosing party. In addition, the receiving party may disclose the Confidential Information if the receiving party is legally compelled to do so, provided that prior to any such compelled disclosure, the receiving party shall (if legally permitted to) notify the disclosing party of such compelled disclosure, shall cooperate fully with the disclosing party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information, and shall solely disclose the portion of the Confidential Information compelled to be disclosed solely to the party entitled to receive it. Notwithstanding any such compelled disclosure by the receiving party, such compelled disclosure shall not otherwise affect the receiving party’s obligations hereunder with respect to Confidential Information so disclosed.
Identifying Each Party; No Trademark License. TrueVault may identify Customer as a customer of TrueVault and display Customer’s trademark or logo on TrueVault’s website and marketing materials. Subject to the foregoing, nothing in this Agreement is intended to grant to either party a license to the trademarks, trade names or service marks of the other party, which may be used and displayed by each party subject to the other party’s prior written consent.
Ownership.
By TrueVault. TrueVault retains and owns all right, title, and interest (including all intellectual property rights) in and to the Licensed Software, Documentation, any updates and upgrades to the foregoing, and its software and systems used to provide the Licensed Software (collectively, “TrueVault IP”). TrueVault retains all rights to the TrueVault IP not expressly granted to Customer.
By Customer. Customer retains and owns all right, title, and interest (including all intellectual property rights) in and to its software and systems and its Third Party Accounts (collectively, “Customer IP”). Customer retains all rights to the Customer IP not expressly granted to TrueVault.
Warranties and Disclaimers.
Licensed Software Warranty. TrueVault warrants that, during the License Term, the Licensed Software will conform in all material respects to the applicable specifications contained in the Documentation (“Specifications”). In the event that the Licensed Software does not conform in all material respects to the applicable Specifications, TrueVault will make commercially reasonable efforts to correct such non-conformity by correcting or replacing the Licensed Software within thirty (30) days after Customer’s written notice specifying such non-conformity. If correction or replacement of the Licensed Software is not commercially practicable, TrueVault will so notify Customer, and upon Customer’s request (which must be within thirty (30) days after TrueVault’s notice to Customer), TrueVault will refund the portion of the fees for the period that the Licensed Software did not materially conform to the Specifications and any other unused portion of any prepaid fees paid by Customer for the Licensed Software, Customer’s license to the Licensed Software will be immediately terminated and Customer will immediately cease all use of the Licensed Software. This Section 6.1 constitutes TrueVault’s exclusive liability, and Customer’s sole remedy, in the event of a breach of the warranty in this Section 6.1.
Access to Third Party Accounts; Deleting Data. Customer warrants that: (a) it will use the Licensed Software solely to access Customer’s own Third Party Accounts (and not the accounts of any third party); (b) Customer has all permissions and authority necessary to access any and all Third Party Accounts and/or modify and delete any data contained in such Third Party Accounts; (c) Customer will comply with the terms and conditions governing Customer’s use of such Third Party Accounts, including any restrictions that may be imposed by the providers of such Third Party Accounts; and (d) has obtained all required licenses and subscriptions for all Third Party Tools used by TrueVault during the License Term. Customer acknowledges and agrees that TrueVault has no control of, and shall have no liability with respect to, whether the Third Party Account provider will modify and/or continue to store data (whether on such Third Party Account provider’s back-up systems or otherwise) that has been properly modified and/or deleted through the use of the Licensed Software in accordance with the commands and policies of such Third Party Account provider. Customer acknowledges and agrees that it has been provided with sufficient opportunity to consult with its legal counsel and other professional advisors regarding this Agreement and the other agreements contemplated thereby.
Disclaimer. Except for the express warranties contained in this Agreement, the Licensed Software and Documentation are provided “AS IS.” TRUEVAULT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. TRUEVAULT DOES NOT WARRANT THAT ANY USE OF THE DOCUMENTATION OR LICENSED SOFTWARE WILL BE ERROR-FREE OR SECURE, THAT ERRORS AND ISSUES WILL BE CORRECTED, THAT OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED, OR THAT THE LICENSED SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS. THE USE OF THE LICENSED SOFTWARE DOES NOT, AND IS NOT INTENDED TO, CONSTITUTE LEGAL ADVICE AND SHOULD NOT BE USED AS A SUBSTITUTE FOR THE ADVICE OF AN ATTORNEY. CUSTOMER UNDERSTANDS THAT IT SHOULD CONSULT WITH AN ATTORNEY FOR LEGAL ADVICE.
Term and Termination.
Term. The term of this Agreement will commence on the Effective Date and will continue through the end of the License Term, unless earlier terminated in accordance with this Section 7.
Termination for Breach. If a party breaches this Agreement, the non-breaching party shall have the right to terminate this Agreement by written notice to the breaching party unless, within fifteen (15) calendar days after the breaching party’s receipt of written notice specifying such breach in reasonable detail from the non-breaching party, the breaching party cures such breach.
Effect of Termination. Upon any termination or expiration of this Agreement: (a) the licenses granted to Customer shall terminate and Customer will immediately cease all use of the Licensed Software and Documentation; (b) TrueVault shall promptly comply with Customer’s request, prior to the termination of the contract, for a copy of its data and information stored or contained within the Licensed Software, which data and information is reasonably necessary for audit and regulatory compliance purposes; and (c) Sections 2.8, 3, 4, 5, 6, 7.3, 8, 9 and 10 will survive. Termination of this Agreement by either party shall not act as a waiver of any breach of this Agreement, shall not act as a release of either party from any liability for breach of such party’s representations, warranties or obligations under this Agreement, and shall be without prejudice to any other right or remedy that a party may have at law or in equity.
Indemnification Obligations.
By TrueVault. Subject to Customer’s compliance with Section 8.3, TrueVault shall (a) defend (and at TrueVault’s option settle) any claim(s) brought against Customer by an unaffiliated third party alleging that Customer’s authorized use and access of the Licensed Software under this Agreement infringes or misappropriates such third party’s trade secrets, copyrights, patents, or trademarks in the Territory, and (b) pay any settlement of such claim(s) consented to by TrueVault or any damages finally awarded to such third party by a court of competent jurisdiction as the result of such claim(s). If such a claim(s) occurs, or in TrueVault’s opinion is reasonably likely to occur, TrueVault may, at its expense and at its sole discretion, in addition to its indemnification obligations under this Section 8.1: (i) procure the right to allow Customer to continue to use the Licensed Software (or infringing portions thereof), or (ii) modify or replace the Licensed Software (or infringing portions thereof) to become non-infringing without degrading the functionality thereof, or (iii) if none of the two (2) foregoing options is commercially feasible, terminate Customer’s right to use the Licensed Software and refund, the unused portion of any prepaid fees paid by Customer for the Licensed Software. Notwithstanding the foregoing, TrueVault shall have no obligations under this Section 8. or otherwise with respect to any infringement claim to the extent any infringement claim is based upon or arises out of: (A) any modification or alteration of the Licensed Software not made or authorized by TrueVault that results in such infringement; (B) any unauthorized access or use of the Licensed Software or any breach of this Agreement by Customer; (C) any combination or use of the Licensed Software with other services, software, products, equipment, methods or services not provided by TrueVault that results in such infringement; or (D) Customer’s continued use of the Licensed Software that is allegedly infringing beyond a reasonable period after Customer is notified thereof.
By Customer. Subject to TrueVault’s compliance with Section 8.3, Customer shall: (a) defend (and at Customer’s option settle) any claim brought against TrueVault by an unaffiliated third party alleging that Customer does not have the right to access, modify and/or delete data on any Third Party Account; and (b) pay any settlement of such claim(s) consented to by Customer or any damages finally awarded to such third party by a court of competent jurisdiction as the result of such claim(s).
Procedures. The party seeking indemnification under this Section 8 will: (a) provide notice of the applicable indemnified claim to the indemnifying party as soon as practicable after becoming aware of such claim (unless the indemnified party is legally precluded from providing such notice); (b) provide reasonable assistance to indemnifying party in the defense of the indemnified claim; and (c) tender the control of the defense of the indemnified claim to the indemnifying party, who will promptly assume and conduct (at its own or its insurer’s expense) the full defense and/or settlement of any indemnified claim. The indemnifying party shall not have the right to settle any indemnified claim, without the prior written consent of the indemnified party, which contains an admission of liability or wrongdoing on the part of indemnified party or imposes a material obligation (including payment obligation) on indemnified party that is not wholly discharged by the indemnifying party. The indemnified party may participate in the defense and settlement of any claim for which it is entitled to indemnification at its sole expense. The remedies set forth in this Section constitute each indemnified party’s sole and exclusive remedies, and each indemnifying party’s entire liability, with respect to infringement, violation or misappropriation of third party intellectual property rights.
Limitations. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, DATA, REVENUE, BUSINESS, SAVINGS OR USE, OR THE COST OF SUBSTITUTE PROCUREMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 AND CUSTOMER’S BREACH OF SECTION 2.3, NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT, WHETHER BASED ON NEGLIGENCE, CONTRACT, TORT, INDEMNIFICATION, STRICT LIABILITY OR ANY OTHER THEORY, AND REGARDLESS OF THE NUMBER OF CLAIMS MADE BY CUSTOMER, WILL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO TRUEVAULT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH A PARTY NOTIFIES THE OTHER PARTY OF A CLAIM. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
General.
Relationship of Parties. Both parties are, and shall remain at all times, independent contractors, and nothing in this Agreement will be construed to create an agency, employment, fiduciary, representative or any other relationship between the parties. This Agreement does not involve any provision of legal services to Customer, and no attorney-client relationship is created between TrueVault and Customer.
Assignment. Neither party shall assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, a party may assign this Agreement without the prior written consent of the other party solely in connection with a merger, consolidation, corporate reorganization, sale of all or substantially all of such party’s assets, sale of stock, change of name or like event, provided that (a) the assigning party provides reasonable notice of such assignment to the other party, and (b) the other party shall have the right to terminate this Agreement immediately by written notice to the assigning party in the event that the assignee is a competitor of the other party. Any attempted assignment other than in accordance with this Section 10.2 shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.
Governing Law, Jurisdiction, and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to its conflicts of law provisions. The parties disclaim the application of the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act to this Agreement. Any dispute regarding this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco County, in the State of California, and the parties hereby irrevocably agree to submit to the personal and exclusive jurisdiction and venue of such courts, provided that either party may seek injunctive relief in any court of competent jurisdiction.
Compliance with Law. Customer will comply with all applicable laws, rules and regulations in its use of the Licensed Software. TrueVault will comply with all applicable laws, rules and regulations in its Processing of Personal Data on behalf of Customer.
Attorney’s Fees. In any action, suit or proceeding to enforce this Agreement, the prevailing party shall be, in addition to any other relief it may receive, entitled to recover from the other party its reasonable attorney's fees and costs incurred in connection therewith.
Export Control. In performing under this Agreement, Customer agrees to comply fully with all applicable laws, rules and regulations, including the export laws and regulations of the United States, the U.S. Export Administration Regulations and the export laws of international countries to which Customer is subject (collectively “Export Controls”). Without limiting the generality of the foregoing, Customer will not, and will require its agents and representatives not to, export, direct or transfer the Licensed Software, Documentation or technical information provided by TrueVault hereunder, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
Government Use. The Licensed Software or Documentation are “commercial items” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If the Licensed Software or Documentation are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the foregoing will be only those specified in this Agreement. Customer’s rights in the Licensed Software and Documentation are limited to those expressly granted in Section 2.1.
Severability. Any determination that any provision of this Agreement or any application thereof is invalid, illegal or unenforceable in any respect in any instance shall not affect the validity, legality and enforceability of such provision in any other instance, or the validity, legality, or enforceability of any other provision of this Agreement.
Force Majeure. TrueVault will not be liable for non-performance or delay in performance caused by any event reasonably beyond its control including, but not limited to wars, hostilities, revolutions, riots, civil commotion, acts of terrorism, national emergency, epidemics, fire, flood, earthquake, force of nature, explosion, embargo, any act of nature, internet or other network (including without limitation phone network or other telecommunications network) failures or brown-outs, computer equipment failure, telecommunication equipment failure, other equipment failure, electrical power failure, strikes, labor disputes, shortages of labor or materials, orders of domestic or foreign courts or tribunals, non-performance by third parties, or any other event of a similar nature.
Waiver. The waiver by either party of a breach of or a default under any provision of this Agreement shall be in writing to be effective and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
Captions and Section Headings. The captions and Section and paragraph headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
Notices. Any notice (except for invoices and billing documents sent to Customer, which will be sent to Customer’s billing contact set forth on the Order Form) required to be given under this Agreement shall be in writing and delivered personally, by email transmission, or by express overnight mail to the other party. Notices will be sent to Customer at Customer’s primary contact set forth on the Order Form and to TrueVault at 2261 Market Street Suite 4949, San Francisco, CA 94114 and contracts@truevault.com. Each party may update such party’s contact information for purposes of notices under this Agreement by providing its updated postal address or email address in accordance with this Section, but with ten (10) days prior notice to the other party. Notices shall be deemed effective: (a) on the date of delivery if delivered personally; (b) on the date of email transmission, if sent by email and a response email or other confirmation by the recipient of the receipt of such email is provided by the receiving party; or (c) one (1) business day after deposit, if sent by express overnight courier, with written confirmation of receipt.
English Language. The English language version of this Agreement shall be controlling in all respects and shall prevail in case of any inconsistencies with translated versions, if any.
Entire Agreement. This Agreement (including the Order Form and the Data Processing Agreement, which are incorporated herein by reference) contains the complete understanding between TrueVault and Customer with respect to the subject matter hereof and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. No terms on purchase orders, invoices or like documents exchanged between the parties shall modify or supplement the terms of this Agreement and shall be deemed void and shall have no effect.
Changes to the Agreement. TrueVault reserves the right to modify this Agreement from time to time. TrueVault will notify Customer of any material changes in writing. Material changes will be effective ten calendar days from the date they were posted. All other changes will be effective immediately. Use of the Licensed Software after the effective date of any changes to the Agreement will constitute Customer's acceptance of those changes. Customer must stop using the Licensed Software and notify TrueVault in writing if it does not agree to the new terms.
Counterparts. This Agreement may be executed and delivered in one or more counterparts (including facsimile, PDF or other electronic counterparts), with the same effect as if the parties had signed the same document. Each counterpart so executed shall be deemed to be an original, and all such counterparts shall be construed together and shall constitute one Agreement.
