Terms of Service Agreement

Last updated: September 13, 2016.

Welcome to TrueVault. We've developed this Terms of Service to detail as clearly as possible the respective rights, duties and obligations of TrueVault, Inc. ("TrueVault") and you (the "Client" or "You").

We recommend that you read the following terms and conditions carefully and urge you to print or save a copy of this Agreement for your records and to review it with your legal and other advisers prior to acceptance. Should you have any questions on our Services or the terms provided in this Agreement, feel free to contact us at legal@truevault.com.

By clicking the "I AGREE" option, creating an account, making an API call to our Service(s), or paying for or using our Service(s), You (or, if applicable, the entity you are acting for or on behalf of) accept that the terms, obligations, rights and conditions specified here will form a legally binding agreement (the "Agreement") between You and TrueVault.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT AND, "YOU" AND "YOUR" IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MAY NOT SELECT THE "I AGREE" BUTTON AND MAY NOT USE THE SERVICES.

If you do not agree with the terms and conditions below, do not click the "I AGREE" option, do not create an account, or use the Services. If you do not agree with these terms and conditions in full, you are not authorized to use the Services in any fashion for any purpose whatsoever.

1. TrueVault Services; Ordering, Pricing & Payments.

All the Capitalized terms used in this Agreement are Defined Terms having the meanings set forth at the end of this Agreement, in Section 31, Definitions. You may access and use the Services solely in accordance with this Agreement and You agree to comply with all laws, rules, and regulations applicable to your use of the Services, including any other policies incorporated into this Agreement, including without limitation the TrueVault Privacy Policy available at https://www.truevault.com/privacy-policy.html, as it may be updated from time to time.

(i) Ordering. The process of ordering Services is detailed on the https://console.truevault.com/register. The parameters of the Services You select are subject to the then applicable ordering terms and pricing.

(ii) Your Account. To access the Services, you must create a TrueVault account associated with a valid e-mail address and contact information, and you are solely responsible for ensuring that your contact and, if applicable, billing information remains accurate and current. Unless authorized by TrueVault in writing, you may only create one account per email address. You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents) and, except to the extent caused by our breach of this Agreement or as required by applicable state, federal and local laws, rules and regulations, we and our Affiliates are not responsible for unauthorized access to your account. You will contact us immediately if you believe an unauthorized third party may be using your account or if your account information is lost or stolen. You may terminate your account and this Agreement at any time in accordance with Section 2, Access to Services; Suspension; Termination.

(iii) Free Trials. We may from time to time offer free trials of the Service for a maximum set duration period, commencing on the date that your application for a free trial is accepted by us and ending as specified in the free trial sign-up process. During the free trial period the Services are provided purely "AS IS" without any warranties, express or implied, or representations to you on our part and you may not use Services acquired for trial purposes for any production purposes. In addition, the Service Level Agreement is expressly not applicable to your usage during any free trial and no Service Credits will be granted. Before your free trial period expires, we may contact you directly or via one of our appointed resellers and invite you to purchase Services. By subscribing to a free trial, you expressly acknowledge and consent that we may contact you in connection with Services using the contact details you have provided. If you do not purchase Services following your free trial, this Agreement will terminate upon expiration of the free trial period and you must (i) immediately cease to use the Service, (ii) delete any copies of Software and Documentation, and (iii) remove all of your Content and settings from our network.

(iv) Pricing; Payment; Service Fees. Pricing for Services is based on the level of Services you have selected and your usage, as more specifically detailed at https://www.truevault.com/pricing.html. Your price for existing Services may be adjusted from time to time upon 30 days written notice to you, but will not increase in any contiguous twelve-month period by more than 15%. Any such price level changes are not retroactive. We calculate and invoice fees and charges monthly. You will pay TrueVault the applicable fees and charges for Services, using one of the payment methods we support as described in the order process. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Fees and charges for any new Service or features will be effective when updated fees and charges, if any, are posted on TrueVault's website. Interest at the rate of 1.5% per month (or the highest rate permitted by law, whichever is less) may be applied to all late payments until your account is current and fees and charges due are paid in full. If served with legal process (i.e. subpoena, governmental order, etc.) arising from your account or your use of Services the reasonable costs (e.g., data duplication and transfer, etc.) and any necessary outside attorney's fees required to effectively respond to such legal process may be charged to you. You agree that we may audit your usage and level of Services remotely, at any time, in order to verify applicable fees. In addition, but not more than once in each calendar year, we (or our independent agent) may reasonably request records from you for the purpose of auditing your compliance with the terms and conditions of this Agreement, including without limitation your payment of all applicable fees. If an audit reveals that you have underpaid fees, we will invoice you for an amount equal to the shortfall between the fees due and those actually paid by you. You agree to pay us for such shortfall within 30 days of the date of invoice.

(iv) Taxes. Unless otherwise agreed, You will pay any taxes (whether sales, use, VAT or otherwise) and duties applicable to your use of Services, or provide TrueVault with a valid taxation exemption certificate for your applicable taxing jurisdictions. You acknowledge that we may make certain reports to tax authorities regarding transactions that we process. We will apply the tax exemption certificates to charges under your account occurring after the date we receive the tax exemption certificates.

2. Access to Services; Suspension and Termination.

Subject to Your compliance with the terms and conditions of this Agreement, TrueVault grants You a non-exclusive, revocable right to access and use the Services during the Term. In addition to the terms of this Agreement, your use of any third party software provided or made available to you by TrueVault is governed solely by the applicable third party's license terms, which will be provided upon request, and, if applicable, are incorporated herein by reference. TrueVault reserves the right to temporarily suspend or discontinue, with or without notice, a TrueVault session at any time should TrueVault reasonably believe that such action is required, or to avoid an imminent threat of harm to TrueVault, Affiliated Entities, other Clients or any third party, subject to the terms of our Acceptable Use Policy.

Either party may suspend its performance and/or terminate this Agreement, effective immediately upon written notice, at any time if the other party is in material breach of any warranty, term or condition of this Agreement and the breaching party fails to cure that breach within thirty (30) days after receipt of written notice from the non-breaching party. Subject in all cases to the terms of Section 17, Business Continuity, upon any cancellation or expiration of this Agreement, Client's access and any other rights to the Services shall immediately terminate, unless you have made post-termination provisions with TrueVault for continuation or transfer of services.

If prior to expiration of the Term, Client terminates the Services for convenience or TrueVault terminates the Services for cause, Client shall immediately upon termination pay TrueVault a termination charge (which Client agrees is a reasonable approximation of TrueVault's damages and not a penalty) as follows: (a) if Client is on a monthly subscription plan, Client will pay any unpaid fees for the Services provided through the remainder of such monthly term; (b) if Client has a Services Contract such as an Order Form with TrueVault, Client will pay any unpaid fees covering the remainder of the term of the agreement. TrueVault will not issue any refunds and credits to the Client. In no event will termination relieve Client of their obligation to pay any fees payable to TrueVault for the period of the agreement plus if not recovered by the foregoing, any costs, fees, or expenses incurred by TrueVault or the Affiliated Entities as a result of the termination; plus (d) any and all previously waived charges for the Services. Not withstanding the foregoing, any terms agreed to upon in Services Agreement Order Form supersedes and survives all terms presented herein.

3. Ownership of Intellectual Property, Software and Services.

The Software and Services are licensed, not sold, solely for use by Client and its Users under the terms of this Agreement. Except as specifically set forth herein, TrueVault and the Affiliated Entities retain all right, title, and interest, including all intellectual property and moral rights, relating to or embodied in the Software or Services, including without limitation all technology, hardware, software, systems and copies of the foregoing relating to the Software or Services. All graphics, logos, service marks, and trade names, including third-party names, product names, and brand names (collectively, the "Marks") relating to the Software or Services are the trademarks of TrueVault and/or the Affiliated Entities. You are prohibited from using any Marks without the prior written permission, which shall be at the sole and exclusive discretion, of TrueVault or the applicable Affiliated Entities. TrueVault reserves all rights and interests not expressly granted in this Agreement, and no direct or indirect ownership interest or license right in or to the TrueVault of Affiliated Entities' Marks, the Services, Software or any other TrueVault or Affiliate Entity intellectual property is granted to Client or created by implication in this Agreement. Unless You direct otherwise, You agree that TrueVault may list You as a client of the firm in our marketing, business development and/or public relations materials and announcements.

4. Licenses to TrueVault

You expressly grant, and represent and warrant that you have all rights necessary to grant, to TrueVault, a royalty-free, sublicensable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, and distribute your name, logo, or any other identifying words or marks used by and/or associated with you to identify you (“Your Marks”), in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service, to identify you as a customer of TrueVault or for marketing and publicity purposes.

5. Restrictions.

You shall not reverse engineer, decompile, disassemble, translate, or attempt to learn the source code of the Software or Services. Unless expressly set forth herein, You may not use, copy, modify, create derivative works of, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare, deliver, or otherwise transfer, directly or indirectly, the Software (in whole or in part) or any rights in the Services. You may not resell or act as a service bureau for the Services or any component thereof. You may not remove from the Software or Services, or alter or add, any Marks or copyright notices or other proprietary rights markings.

6. Maintenance and Client Service.

TrueVault will perform regular maintenance. In certain circumstances TrueVault may need to perform emergency maintenance and will, to the extent reasonably possible, provide advance notice of such emergencies. Any such maintenance, whether regular or emergency, will not in any way qualify as a Services "Unavailability".

7. Electronic Communications; Notices.

The Services are conducted electronically and You agree that TrueVault may communicate electronically with You and any Users for any matters relating to the Services or Software, including but not limited to information and notifications regarding product updates, incentive and rewards programs, training opportunities and ways to more efficiently use the Services, and legal notices of any kind, including cancellation and termination, unless prohibited by law. Any notices required under this Agreement to TrueVault shall be in writing and shall be either (i) personally delivered or delivered via overnight courier or (ii) via certified mail, return receipt requested, at the address provided to you for such notices, or such new address as may from time to time be designated in writing by TrueVault, and to the attention of the individuals likewise provided to you, or, if authorized by TrueVault (iii) to the email address supplied to you for the purposes of the applicable notice. Notice shall be deemed to have been given by TrueVault on the date TrueVault sent the relevant electronic communication with applicable receipt of delivery.

8. Updates; Applicable Terms and Authorization for Auto Updates.

TrueVault may, in its sole discretion, provide, and this Agreement shall apply to, all updates, supplements, add-on components, features, or other functionality or messages related thereto, including without limitation alterations of functionality, features, storage, security, availability, content, and other information relating to the Software or Services (collectively, "Updates") that TrueVault may provide or make available generally to its clients after the date that the Services commence, subject to any additional terms and conditions provided by TrueVault applicable to such Updates. You hereby authorize TrueVault to, in accordance with TrueVault's standard operating procedures, automatically and in good faith transmit, install, and otherwise provide Updates to the Software upon Your access to the Services or Software without further notice or consent.

9. Your Data Security Obligations.

You are fully responsible for the security of data on Your site or otherwise in Your possession. You agree to comply with all applicable state and federal laws and rules in connection with Your collection, security, and dissemination of any protected health information (PHI) on Your site. You agree that at all times You shall be compliant with HIPAA and HITECH requirements, as applicable. The steps You will need to take to comply with HIPAA and HITECH when using TrueVault will vary based on Your implementation. For more information about implementing TrueVault, please refer to our documentation. If we believe that it is necessary based on Your implementation and we request it of You, then You will promptly provide us with documentation evidencing Your compliance with HIPAA and HITECH. You also agree that You will use only HIPAA compliant service providers in connection with the storage, or transmission of PHI. Information on the HIPAA rules can be found on the HHS website. It is Your responsibility to comply with these standards.

10. Ownership of Content; Limited License to Content.

TrueVault does not claim ownership of any Content. As between TrueVault and You, You are the Content Owner or applicable Licensor. In connection with our provision of Service to You, Except as otherwise provided in this Agreement, as between You, on the one hand, and TrueVault or Affiliated Entities, on the other hand, You retain all right, title, and interest in and to the Content. You acknowledge that the Services are provided by automated means and that TrueVault personnel will not access, use, or disclose any Content, except as necessary to perform the Services, including but not limited to the following: (i) during a Services interruption as necessary to restore applicable Content at Your request; (ii) upon Your request that TrueVault serve as host, producer, or facilitator as part of the Services; (iii) as a result of TrueVault, at Client's request, providing, if applicable, remote desktop support to Client; or (iv) as reasonably deemed necessary or advisable by TrueVault, at its sole but reasonable discretion, to conform to applicable legal requirements or to comply with legal process. You hereby grant to TrueVault a nonexclusive, worldwide, royalty-free, fully-paid, irrevocable, transferable license to host, cache, store, display, record and copy Content solely for the purpose of providing the Services to You during the Term.

11. Representations and Warranties About Content.

You represent that You: (i) are the owner or authorized licensee of any and all Content; (ii) will not publish, post, upload, record, or otherwise distribute or transmit Content using the Software or Services that: (a) infringes or would infringe any copyright, patent, trademark, trade secret, or other proprietary right of any party, or any rights of publicity or privacy of any party; (b) violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, false advertising, privacy, or data security); (c) is profane, defamatory, libelous, obscene, indecent, threatening, harassing, or otherwise unlawful; (d) is harmful to minors or pornographic; (e) contains any viruses, Trojan horses, worms, time bombs, malware, cancelbots, corrupted files, or any other similar software, data, or programs that may damage, delete, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, personal information, or property of another; or (f) is materially false, misleading, or inaccurate.

12. Retention of Content.

As long as Your account is active, You shall be responsible for managing and retaining any of Your Content. Other than as required by applicable law or legal process or as otherwise agreed, TrueVault shall not be responsible for retaining any of Your Content after account termination or for archiving purposes. You acknowledge that all Client Content may be deleted by TrueVault after the account is terminated, subject to the terms of this Agreement and/or any termination or transition of Services Agreement the parties may enter.

13. Service Availability.

TrueVault will use commercially reasonable efforts to provide Client access to selected Services with a Monthly Uptime Percentage, as defined in the then applicable Service Level Agreement, during any monthly billing cycle (the "Service Commitment"). In the event TrueVault does not meet the Service Commitment in effect at the time of any outage you will be eligible to receive a Service Credit as described in the Service Level Agreement

14. Submissions.

You may submit questions or comments to TrueVault from time to time. TrueVault reserves the right to use in whole or part the content any such questions or comments and all such communications, comments, feedback, suggestions, ideas, and other submissions related to the Software or Services submitted to TrueVault, excluding your Confidential Information (collectively, "Submissions") will become and shall thereafter remain TrueVault's property, and all worldwide right, title, and interest in all copyrights and other intellectual property in all Submissions are assigned (and in the future deemed to be assigned) by You to TrueVault.

15. Confidentiality.

You may use TrueVault Confidential Information solely in connection with Your use of Services, as permitted under this Agreement, and will not disclose any TrueVault Confidential Information at any time. Both parties will hold in strict confidence and not use or disclose to any third party any Confidential Information of the other party, other than as permitted by this Agreement. Each party will take all reasonable measures to avoid disclosure or unauthorized use of Confidential Information, but in no event less than a reasonable degree of care. You will not issue any press release or make any other public communication with respect to this Agreement or your use of the Services.

16. Compliance with Applicable Law.

You agree (i) not to use the Software or Services for any illegal purposes and (ii) to comply with all applicable local, state, national, and international laws and regulations, including without limitation laws relating to recording conversations, privacy, and data protection and public displays or performances, and United States export laws and regulations regarding the transmission of technical data exported from the United States through the Software or Services. You further agree that this Agreement does not require TrueVault or any of the Affiliated Entities to exercise any right or remedy in order to benefit or protect anyone, although TrueVault reserves the right to do so in its sole discretion.

17. Acceptable Use Policy.

You agree to abide by TrueVault's Acceptable Use Policy, (the "Acceptable Use Policy" or "AUP"), as modified from time to time at the bottom of this page, and not to use, promote aid or direct others to use the Services in conflict with the Acceptable Use Policy or this Agreement. The Software and Services are not designed or intended for use in any situation where failure or fault of any kind of the Software or Services could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (collectively, "High Risk Use"). You may not use the Software or Services in, or in conjunction with High Risk Use, which is strictly prohibited. We reserve the right, but assume no obligation, to investigate any violation of our Acceptable Use Policy or any misuse of the Services. You acknowledge that we may report to appropriate law enforcement officials, regulators, or other appropriate third parties any activity we suspect violates any law or regulation. We also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties, as requested, by providing network and systems information related to alleged violations of this Policy.

18. Business Continuity.

In the event that TrueVault is unable to continue providing the Services to You, TrueVault will provide access to the most current data set, as well as all necessary information, including application settings and utilities, in order to facilitate a transition of Services by You to another provider or in-house implementation. Upon termination, TrueVault will, to the extent possible, provide You at reasonable cost in accordance with industry pricing a current copy of Your data; provided that you are at such time in good standing in all then current fees and charges and TrueVault receives written request from You for a copy of Your data no later than 30 days after termination (the "Termination Transition Period"). TrueVault will provide the same data backups and settings regardless of which party terminates this Agreement or the reason for termination, and each party will reasonably cooperate to effect a timely and orderly transition of services, if applicable, to any designated third party identified by You in writing to TrueVault within the Termination Transition Period.

19. Indemnification.

You agree to defend, indemnify, and hold harmless TrueVault from and against any and all claims and liabilities (including, but not limited to, fees, costs and other reasonable expenses of attorneys and expert witnesses, but excluding any loss, liabilities, costs, damages or other expenses attributable solely to TrueVault's negligent acts/omissions or willful misconduct) made by any third party related to or arising from: (i) Your use of the Software or Services (including without limitation, any User or person accessing the Services using Your password or access key with or without Your permission), (ii) any actual or alleged violation of this Agreement or applicable law, and/or (iii) any actual or alleged infringement or violation (by You or any User or person accessing the Services using Your password or access key with or without Your permission) of any intellectual property or privacy or other right of any person or entity. Notwithstanding the foregoing Your potential indemnification liability shall exclude, to the extent permitted by applicable state, federal or international laws, any special, incidental, punitive or consequential damages to TrueVault or its Affiliates other than those arising from or related to Your negligent or willful: (x) misappropriation of Content or trade secrets; (y) actual or alleged infringement of a third party's intellectual property rights; or (z) breach of the confidentiality obligations provided.

20. DISCLAIMER OF WARRANTIES.

ALL SOFTWARE AND SERVICES ARE PROVIDED AS IS AND WITH ALL FAULTS AND WITHOUT ANY WARRANTY BEYOND THE SOLE AND LIMITED WARRANTY THAT SERVICES WILL PERFORM SUBSTANTIALLY AS DESCRIBED IN APPLICABLE TRUEVAULT USER DOCUMENTATION. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION EACH OF TRUEVAULT AND THE AFFILIATED ENTITIES HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND DUTIES OF ANY KIND (IF ANY), EXPRESS, IMPLIED, OR STATUTORY, UNLESS PROHIBITED BY LAW, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE, OF ACCURACY, OF SYSTEM INTEGRATION OR COMPATIBILITY, OR OF WORKMANLIKE EFFORT. THE FOREGOING DISCLAIMERS INCLUDE, WITHOUT LIMITATION, ANY WARRANTY, DUTY, OR CONDITION THAT: THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, RELIABLE, AVAILABLE AT ANY PARTICULAR TIME, SECURE, ERROR-FREE, VIRUS-FREE, OR CORRESPOND TO ANY CONDITION; THAT MESSAGES OR REQUESTS WILL BE DELIVERED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SOFTWARE OR SERVICES, ANY CONTENT, SYSTEMS, SERVERS, AND INFORMATION THAT IS IN OR UTILIZED BY THE SOFTWARE AND/OR SERVICES WILL BE FREE OF HARMFUL ASPECTS.

21. NO LIABILITY FOR CONTENT.

YOU AGREE THAT TRUEVAULT AND THE AFFILIATED ENTITIES WILL NOT BE LIABLE FOR ANY CONTENT, INCLUDING BUT NOT LIMITED TO CONTENT THAT IS SENT, RECEIVED, HELD, RELEASED OR OTHERWISE CONNECTED IN ANY RESPECT TO THE SOFTWARE OR SERVICES, CONTENT THAT IS UPLOADED OR DOWNLOADED BUT NOT RECEIVED, AND CONTENT SENT USING AND/OR INCLUDED IN THE SERVICES, INCLUDING WITHOUT LIMITATION ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE, OR ILLEGAL CONTENT; FURTHER, YOU AGREE THAT TRUEVAULT AND THE AFFILIATED ENTITIES WILL NOT BE LIABLE FOR ANY ACCESS TO OR ALTERATION OF SUCH CONTENT OR FOR ANY INFRINGEMENT OF ANOTHER'S RIGHTS, INCLUDING PRIVACY, INTELLECTUAL PROPERTY, OR DATA PROTECTION RIGHTS ARISING FROM SUCH CLIENT CONTENT OR FROM THE CONDUCT OF CLIENT OR THIRD PARTIES OTHER THAN WHICH MAY BE THE RESULT OF TRUEVAULT'S WILLFUL ACTIONS.

22. EXCLUSION OF CERTAIN DAMAGES.

UNLESS PROHIBITED BY LAW, YOU AGREE THAT THE FOLLOWING DAMAGES ARE EXCLUDED AND THAT YOU WILL NOT BE ENTITLED TO ANY OF THEM: ALL SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY AND CONSEQUENTIAL DAMAGES; DAMAGES FOR LOSS OF PROFITS OR GOODWILL; DAMAGES FOR LOSS OF CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR LOSS OF PRIVACY, OR FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER OTHER THAN THE DIRECT DAMAGES DESCRIBED IN SECTION 22 BELOW. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES WILL BE RESPONSIBLE FOR ANY COMPENSATION, DAMAGES OR REIMBURSEMENT ARISING FROM OR IN CONNECTION WITH: YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT RESULTING FROM YOUR ACTIONS OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER ANY SLA, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (IV) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (V) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, OR (VI) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. THE FOREGOING DAMAGES WILL BE EXCLUDED EVEN IN THE EVENT THAT TRUEVAULT OR ANY OF THE AFFILIATED ENTITIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THESE EXCLUSIONS AND THE BELOW LIMITATION ON LIABILITY WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

23. LIMITATION ON LIABILITY.

TRUEVAULT SHALL NOT BE LIABLE FOR ANY DAMAGES EXCEPT FOR DIRECT DAMAGES ACTUALLY INCURRED BY YOU UP TO THE GREATER OF THE AMOUNT OF THE PRICE THAT YOU ACTUALLY PAID FOR THE SERVICES THAT GIVE RISE TO YOUR CLAIM DURING THE PRECEDING 12 MONTHS OR ONE DOLLAR (US $1.00), REGARDLESS OF THE FORM OF ACTION OR CLAIM.

24. Survivability.

In addition to any payment obligations arising prior to termination, the following sections will survive any termination of this Agreement: Sections 1, 3-4, 7-14, and 17-31.

25. Governing Law; Exclusive Forum; Jurisdiction.

This Agreement and all causes of action related to the Software or Services will be governed by and construed in accordance with the laws of the state of California and the United States of America, without giving effect to its conflict-of-laws principles that would require application of the laws of a different state or jurisdiction. Any dispute relating in any way to the Services or this Agreement where a party seeks relief of $7,500 or more will be adjudicated in any state or federal court in Los Angeles County, California. You consent to exclusive jurisdiction and venue in those courts. We may seek injunctive or other relief, at law or equity, in any state, federal, or other court of competent jurisdiction for any actual or alleged infringement or misappropriation of our, our Affiliates, or any third party's intellectual property or other proprietary rights. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. Unless otherwise prohibited by applicable law, You agree that any claim or cause of action arising out of or related to this Agreement must be commenced by You within one (1) year after the cause of action arose.

26. Miscellaneous; Severability.

To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect. TrueVault's failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision unless agreed to by TrueVault in a writing signed by a duly authorized officer of TrueVault.

27. Force Majeure.

TrueVault and its Affiliated Entities will not be liable for non-performance or delay in performance caused by any event reasonably beyond the control of such party 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 God, or any other event of a similar nature.

28. Third Party Beneficiaries; Assignment.

The Affiliated Entities are third party beneficiaries to this Agreement. There are no other third party beneficiaries to this Agreement. No party may assign or otherwise transfer this Agreement, or any rights or obligations hereunder, whether by contract, operation of law, or otherwise without the express written consent of the other party to the Agreement, except that TrueVault may assign or otherwise transfer this Agreement, any of its rights or obligations under this Agreement, and/or any Content provided to TrueVault pursuant to this Agreement, to one (1) or more of the Affiliated Entities, or by way of merger, acquisition or sale of all or substantially all of its assets to any third party or Affiliated Entity or as part of a corporate reorganization, without Your consent. This Agreement will be binding on and inure to the benefit of TrueVault and Client and their respective permitted successors and permitted assigns.

29. Export Restrictions.

You acknowledge that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Software and Services. Without limiting the foregoing, You acknowledge that the Software and Services are or may be an encryption item subject to controls under the Export Administration Regulations promulgated by the U.S. Department of Commerce. You agree not to export or re-export the Software or Services in any form in violation of the export laws of the United States or any foreign jurisdiction. You will defend, indemnify, and hold TrueVault and the Affiliated Entities harmless from and against any violation of such laws or regulations.

30. Entire Agreement.

The Agreement, including any additional document incorporated by reference, constitutes the entire agreement of the parties with respect to the Software and Services and supersedes all other (prior or contemporaneous) communications and proposals, whether electronic, oral, or non-electronic, between TrueVault and You regarding them. TrueVault's performance of this Agreement is subject to existing laws and legal process, and You agree that TrueVault may comply with law enforcement or regulatory requests or requirements notwithstanding any contrary term of this Agreement or that policy. A printed or electronic version of this Agreement and of any notice given to You in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

31. Modifications to this Agreement.

TrueVault may amend this Agreement (including any SLA, AUP or Privacy Policy) from time to time by posting an amended version at its website or sending you written notice in accordance with this Agreement's notice provisions. Such modifications will be deemed accepted and become effective after such notice (the "Proposed Amendment Date") unless you give TrueVault written notice of your rejection of the amendment(s). Your continued use of Services following any Proposed Amendment Date stated in the website positing or writing notice will confirm your consent to any modifications. This Agreement may not be otherwise amended by you in any other way except through a written agreement executed by authorized representatives of each party. Notwithstanding the foregoing, Provider may amend the AUP or Privacy Policy at any time by posting a new version at its website and sending or providing you with notice, and any amended version will become effective 7 business days after such notice is sent.

32. Definitions.

All Capitalized terms used in this Agreement have the meanings set forth below.

Affiliated Entities or Affiliates means any licensors and suppliers providing any or part of the Software and/or Services; and all subsidiaries, affiliates, directors, officers, employees, consultants, and agents of TrueVault and of any of the forgoing.

Confidential Information means all nonpublic information disclosed by TrueVault and our Affiliates or by You that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes: (a) nonpublic information relating to a party's technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that a party is obligated to keep confidential; and (c) the nature, content and existence of discussions or negotiations between the parties. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the receiving party at the time of receipt from the disclosing party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by a party without reference to the other party's Confidential Information.

Content means any and all information, data, and protected health information (PHI), regardless of the file format or file contents (and includes, without limitation, all photographs, text, images, audio clips, sounds, videos, databases, e-mails, computer programs, as well as any other files) uploaded by or for You in connection with Your use of the Services.

PHI or protected health information, means Individually Identifiable Health Information, as defined in 45 CFT 160.103, that is transmitted in any medium that identifies an individual or creates a reasonable basis to believe the information can be used to identify an individual and relates to (i) the past, present or future physical or mental health or condition of an individual; (ii) the provision of health care to an individual; or (iii) the past, present or future payment for the provision of health care to an individual. Protected Health Information is limited to that information received by TrueVault from or on behalf of the Client.

Client, You or Your means the individual or legal entity purchasing, opening, or utilizing an account for TrueVault services under this Agreement.

Service Order means any quote or service form, electronic or otherwise, provided to You by TrueVault in connection with Your subsequent selection of Services.

Services means the TrueVault plans, features and offerings offered by TrueVault, as modified from time to time by TrueVault in its sole discretion, and selected for use by You at the time of enrollment and accepted by TrueVault and as then amended by You or TrueVault from time-to-time thereafter.

Software means the TrueVault software offerings, programs and any third party software programs supplied by TrueVault to Client and documentation (whether hard copy or electronic) and media related thereto.

Term means the duration of this Agreement commencing with the earliest of the date: (i) that TrueVault accepts Client's order for Services, or (ii) that Client first accesses or uses the Services, and continuing until the end of the applicable Services period as designated by TrueVault either pursuant to the Services Order, subject to earlier termination in accordance with this Agreement. The initial term of engagement shall automatically renew for an additional one (1) year period, unless either party delivers written notice of non-renewal to the other party at least thirty (30) calendar days before a term expires.

User(s) means the individual(s) accessing or using the TrueVault services for or on behalf of the Client.

SERVICE LEVEL AGREEMENT

Last Updated: September 17, 2013

This Service Level Agreement ("SLA") governs the Service Commitment associated with Your use of TrueVault Services under the terms of the Agreement in place between You and TrueVault, and is subject to the terms of the Agreement. We reserve the right to modify the terms of this SLA as provided in the Agreement.

Service Commitment. TrueVault will use commercially reasonable efforts to meet the Service Commitment for Your Services to provide a "Service Availability" with a Monthly Uptime Percentage of at least 99.99% during any monthly billing cycle. In the event TrueVault does not, subject the following exclusions/exceptions, meet this Service Commitment, you will be eligible to receive a Service Credit, as described below. TrueVault bases our reputation in providing reliable services and in delivering the highest levels of customer service. As a result, in the event of any Service Unavailability we will endeavor to err on the side of resolving any Service Availability in Your favor.

For purposes of SLA Credits, the "Monthly Uptime Percentage" is the total number of minutes in a calendar month, at 100% divided by the total number of minutes during the applicable billing month in which TrueVault Services were in a state of "Unavailability" for Your Services. Monthly Uptime Percentage measurements exclude Unavailability resulting directly or indirectly from any SLA Exclusion (as provided above).

"Unavailability" or "Unavailable" shall mean any period of time when You or Your Users are unable to read or write to a TrueVault Services for which You have appropriate permissions.

A "Service Credit" is a credit, calculated as set forth below, that we may credit back to Your account for the next billing cycle as a monetary credit:

Service Availability Credit Percentage
99.99 to 100.000% 0%
98.000% to 99.989% 10%
95.000% to 97.999% 25%
90.000% to 94.999% 50%
89.999% or below 100%

Exceptions/Exclusions. You will not receive any credits under this Agreement in connection with any failure or deficiency of Service Availability or the Monthly Uptime Percentage caused by, in whole or in part, or associated with the following, collectively, the "SLA Exclusions":

  • A suspension or termination of Your Services or Account as provided in AWS Agreement;
  • Factors outside of our reasonable control, including any Force Majeure event or Internet access or related problems beyond the demarcation point of TrueVault's systems, unless such failure is caused solely by TrueVault;
  • Any actions or inactions by you or any third party, including but not limited to failures: from your equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within our direct control);
  • Scheduled maintenance and emergency maintenance and upgrades;
  • Your acts or omissions (or acts or omissions of others engaged or authorized by You and/or under Your control or direction) including, without limitation, any negligence, willful misconduct, use of the Services in breach of this Agreement, or network or other technical/non-technical issues in the primary control of Client; or
  • Outages elsewhere on the Internet that hinder access to Your account (provided that the foregoing shall not relieve TrueVault of its obligations under this SLA or the Agreement).

Credit Request. You must be in good standing and make a written request by sending an e-mail message to help@truevault.com including the dates and times of the Unavailability of the Services as the nature of the Unavailability. Your request must be received by TrueVault within ten (10) business days after the end of Unavailability in question. Upon TrueVault's reasonable investigation and confirmation of Unavailability of the Services, TrueVault will apply Service Credits against the next billing cycle following receipt of your credit request. Service Credits are not refundable or transferrable and can be used only towards outstanding or future billing charges. Notwithstanding anything to the contrary herein, the total amount credited to a Client in a particular month under this SLA shall not exceed the total hosting fee paid by Client for such month for affected Services.

TRUEVAULT ACCEPTABLE USE POLICY

1. Introduction.

TrueVault does not normally monitor the stored content or transmissions of its Clients, however, as we must be able to respond to legitimate legal requests and actions by governmental authorities, affected parties, and other Internet Service Providers. In response, TrueVault has adopted this "Acceptable Use Policy" ("AUP") in an attempt to balance interference or risk of harm arising from its Clients' use of TrueVault's services (the "Services") with the interests of those who may be affected by such use. Because the rules in this area are in a state of development, this AUP may change from time to time; any such changes will be posted at this site. It is the responsibility of Clients to periodically check this site for updates to this AUP. A Client's continuing use of the TrueVault Services after the posting of such changes shall signify such Client's continuing agreement to this AUP and to any such changes. This AUP is part of, and is incorporated by reference into, the TrueVault Terms of Service. TrueVault prohibits use of its Services in any manner that is unlawful, interferes with use of TrueVault's network or the Internet, infringes intellectual property, privacy, or other rights of TrueVault or third parties, results in the publication of threatening or offensive material, constitutes spam, or presents other security or privacy risks.

2. AUP Coverage.

The AUP applies to all Clients of TrueVault's Services, whether using paid Services or any free trial or other unpaid offerings, and to all individuals affiliated with Clients accessing or using the TrueVault Services or accessing or using the TrueVault Services for or on behalf of Clients ("Users"). If a Client violates the AUP or permits its Users to do so, TrueVault may, depending on the nature and severity of the violation, suspend or terminate Services, as provided below. Alternatively, if a User violates the AUP, TrueVault may suspend service for so long as necessary for steps to be taken which, in TrueVault's reasonable and sole discretion and judgment, shall prevent the violation from continuing or reoccurring.

3. Notice.

When feasible, TrueVault will provide you with written notice via e-mail or otherwise of an AUP violation so that such violation may be corrected without impact on the Services. TrueVault reserves the right, however, to act immediately and without notice to suspend or terminate the Services, up and including your account, if necessary, in response to a court order or law enforcement request, or when TrueVault reasonably determines (1) that it may be exposed to sanctions or prosecution, (2) that such violation may cause harm to or interfere with the integrity or normal operations or security of TrueVault's network or networks with which TrueVault is interconnected or interfere with another Client's use of TrueVault Services or the Internet; or (3) that such violation otherwise presents imminent risk of harm to TrueVault or TrueVault's Clients or their respective employees. Except as provided above, to the extent allowed by law, TrueVault will use reasonable efforts to provide at least five (5) business days' notice before suspending or terminating service.

4. Unlawful Activities.

TrueVault prohibits use of its Services in connection with any criminal activity or any violation of any applicable local, state, provincial, federal, national or international laws, treaties, court orders, ordinances, regulations or administrative rules.

5. Interference.

TrueVault prohibits use of its Services in any manner that materially interferes with any communications network or the usage of services received by others.

6. Intellectual Property.

TrueVault prohibits use of its Services to transmit, re-transmit, or store any content or to engage in any activity that infringes the intellectual property rights or privacy rights of TrueVault or any third party (including but not limited to any rights protected by any copyright, patent, trademark, trade secret, trade dress, right of privacy, moral rights or other intellectual property right). While TrueVault reserves the right to restrict any actions alleged to violate such rights, TrueVault affirmatively has no obligation to police any activities in connection.

7. Offensive or Threatening Material or Content.

TrueVault prohibits use of its Services to host, post, transmit, or re-transmit any content or material that is threatening, harassing, obscene, pornographic, racist, defamatory, libelous, treasonous, or that promotes the use of violence, that provides instruction, information or assistance in causing or carrying out violence against any organization, group or individual, or that provides guidance, information or assistance with respect to causing damage or security breaches to TrueVault's network or to the network of any other service provider.

8. E-mail Abuse and Unsolicited Bulk Email ("spam").

TrueVault prohibits use of its Services for the sending of any form of unsolicited bulk email. Clients and Users may not use TrueVault Services to solicit Clients from, or collect replies to, messages sent from another Internet Service Provider where those messages violate this Policy or that of the other provider.

9. Security Violations.

TrueVault prohibits use of its Services to interfere with, to gain unauthorized access to, or otherwise violate the security of TrueVault's or another's server, network, personal computer, network access or control devices, software or data, or other system, or to attempt to do any of the foregoing.

10. Client Responsibilities.

You remain solely and fully responsible for your Content and for maintaining the basic security of the systems utilized by and on your behalf to access TrueVault and Services, including implementation of necessary patches and operating systems updates, to prevent use by others in a manner that violates this AUP. Clients are responsible for taking corrective actions on vulnerable or exploited accounts to prevent abuse.

11. Incident Reporting.

Any complaints (other than claims of copyright or trademark infringement) regarding the violation of this AUP by a TrueVault Client or User should be directed to help@truevault.com. Where possible, include details that would assist TrueVault in investigating and resolving the complaint (i.e. expanded headers and a copy of the offending transmission).