TRUSTE CLOUD SERVICES AGREEMENT
IAPP GDPR Readiness Assessment
This license agreement for the Cloud Services ("Agreement") contains the terms for the Cloud Services and is between True Ultimate Standards Everywhere, Inc. ("TRUSTe") and the party agreeing to the terms of this Agreement ("Customer"). By clicking an "Accept" or similar button, completing a registration process, and/ or otherwise using any of the Cloud Services, Customer agrees to be bound by the terms of this Agreement. Customer may not use the Cloud Services without agreeing to this Agreement first. If the party executing this Agreement is entering into this Agreement on behalf of a company or other legal entity, the party represents and warrants that it has the authority to bind such entity to this Agreement. If a written agreement regarding Customer's use of the Cloud Services exists between and has been executed by both Customer and TRUSTe, the terms of that written agreement shall take precedence over this Agreement.
Cloud Services means the GDPR Readiness Assessment cloud services product as may be further described in the Cloud Services Description.
"Cloud Services Description" means the description of the Cloud Services licensed by Customer contained in the applicable description document, which may be available on TRUSTe's website at www.truste.com
"Customer Equipment" means Customer's computer hardware, software, and network infrastructure used to access the Cloud Services.
"Effective Date" means the date this Agreement is electronically entered into by Customer.
"Support" has the meaning set forth in Section 6.
"Updates" means all Cloud Services updates and enhancements that TRUSTe generally makes available at no additional charge to its customers of its Cloud Services.
"Users" means Customer's employees, contractors, and agents who are authorized by Customer to use the Cloud Services on its behalf.
2. TERMS OF THE CLOUD SERVICES. Subject to the terms of the Agreement, TRUSTe grants Customer a non-exclusive, non-transferable license to use the Cloud Services during the Term.
3. CUSTOMER RESPONSIBILITIES RELATING TO USE OF THE CLOUD SERVICES AND TRUSTE'S RIGHTS.
3.1 As between the parties, Customer is responsible for (i) all activities conducted under its User logins, (ii) obtaining and maintaining any Customer Equipment and any ancillary services needed to connect to, access or otherwise use the Cloud Services, and (iii) ensuring that the Customer Equipment and any ancillary services are compatible with the Cloud Services and comply with all configuration requirements set forth in the Documentation.
3.2 Customer shall use the Cloud Services solely for its internal business purposes, in compliance with applicable law, and shall not: (a) resell, sublicense, lease, time-share or otherwise make the Cloud Services available to any third party; (b) send or store infringing or unlawful material using the Cloud Services; (c) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Cloud Services or the data contained therein; (d) modify, copy or create derivative works based on the Cloud Services; (e) reverse engineer the Cloud Services; (f) propagate any virus, worms, Trojan horses, or other programming routine intended to damage any system or data; (g) access the Cloud Services for the purpose of building a competitive product or service or copying its features or user interface; (h) use the Cloud Services, or permit the Cloud Services to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without TRUSTe's prior written consent; or (i) permit access to the Cloud Services by a direct competitor of TRUSTe.
3.3 If Customer fails to comply with the obligations set forth in this Section 3, TRUSTe may inform Customer thereof and reserves the right to suspend the use of the Cloud Services until such failure is remedied.
4. OWNERSHIP AND USE.
4.1 Customer shall retain all ownership rights in Customer Confidential Information. TRUSTe shall have and retain all ownership rights in the Cloud Services, all derivatives thereof, and all work developed or created by TRUSTe during the course of providing Support to Customer (if any). TRUSTe hereby grants Customer a royalty-free, fully paid-up, nonexclusive, license to use the foregoing on the same terms and conditions as the Cloud Services.
4.2 TRUSTe shall own any suggestions, enhancement requests, recommendations, or other feedback provided by Customer or its Users relating to the Cloud Services.
5.1 The Cloud Services are provided for free. However unlikely, Customer is responsible for any and all taxes related to its use of the Cloud Services. In the event TRUSTe ever switches to a fee-based model for the Cloud Services, Customer will be presented with the fees for the Cloud Services and have the opportunity to terminate the Agreement before having to incur the fees.
6. SUPPORT. TRUSTe shall provide commercially reasonable support for the Cloud Services.
7.1 Each party represents and warrants that (i) it has the legal power to enter into and perform under this Agreement; and (ii) it shall comply with all applicable laws in its performance hereunder.
7.2 Customer warrants (i) it is not the subject of an allegation of the misuse of Personally Identifiable Information, of which it has been notified by any known governmental, regulatory, or voluntary compliance authority in any country, including without limitation the Attorney General of any state the United States Federal Trade Commission (FTC), or any law enforcement agency or any foreign governmental or privacy authority; and (ii) all information provided by Customer to TRUSTe (including but not limited to any privacy statement) is true, accurate and complete as of the date of delivery to TRUSTe. Customer represents that it understands that it has an independent duty to comply with any and all laws and regulations.
7.3 EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TRUSTE DOES NOT WARRANT THE OPERATION OF THE CLOUD SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
8. PATENT AND COPYRIGHT INDEMNITY.
8.1 Customer shall defend, indemnify and hold TRUSTe, its officers, directors, employees, subsidiaries and shareholders harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings arising out of (i) a violation of any statute, law, ordinance, or regulation by Customer; and/or (ii) Customer's information collection, disclosure, and use practices and/or any Customer data used in conjunction with the Cloud Services. TRUSTe shall have the right to participate in such defense with counsel of its own choosing at its expense.
9. CONFIDENTIALITY AND DATA SECURITY.
9.1 As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, the Cloud Services, documentation, business and marketing plans, technology and technical information, product designs, and certification and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to Disclosing Party.
9.2 Receiving Party shall not disclose any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party's prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party's Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Nothing in this Section shall prohibit TRUSTe from disseminating aggregated information that contains no identifiable Customer Confidential Information. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party's Confidential Information.
9.3 If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if Disclosing Party wishes to contest the disclosure.
9.4 Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party's Confidential Information as long as it remains confidential and, upon request, return to the Disclosing Party or destroy (at the Disclosing Party's election) all materials containing such Confidential Information.
9.5 TRUSTe shall take appropriate physical, technical, and administrative security measures sufficient to secure the Customer data entered into the Cloud Services ("Customer Data") against any unauthorized disclosure, and as required by any applicable law or regulation. Without limiting the foregoing, TRUSTe will implement security measures that are consistent with industry standards. TRUSTe will designate a senior representative to provide incident briefings and to respond to requests by Customer pertaining to privacy and data security issues.
9.6 TRUSTe will (a) process Customer Data only to the extent, and in such manner, as is necessary to provide the Cloud Services to Customer and its Users under this Agreement and in accordance with Customer's instructions from time to time; (b) not otherwise process or use the Customer Data; and (c) keep Customer Data logically separate from other data and information that is held by TRUSTe. For purposes of clarity, the provisions above apply to all Customer Data, including but not limited to personal information. TRUSTe shall promptly comply with any request from Customer requiring TRUSTe to amend, transfer or delete Customer Data. TRUSTe will provide Customer with the means to access, amend, delete or transfer Customer Data. If TRUSTe receives any third party communication relating directly or indirectly to the processing of the personal information, TRUSTe must promptly notify Customer and must fully cooperate and assist Customer in addressing the communication. TRUSTe will, at its expense, provide Customer with reasonable assistance to comply with any obligations under the applicable data protection laws relating to personal information.
10. LIMITATION OF LIABILITY.
10.1 EXCEPT (i) FOR THE PARTIES' INDEMNIFICATION OBLIGATIONS; OR (ii) IN THE EVENT OF EITHER PARTY'S UNAUTHORIZED USE, DISTRIBUTION OR DISCLOSURE OF THE OTHER PARTY'S INTELLECTUAL PROPERTY OR EITHER PARTY'S MATERIAL BREACH OF SECTION 9 ("EXCLUSIONS"), IN NO OTHER EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED ONE HUNDRED DOLLARS ($100).
10.2 EXCEPT FOR THE EXCLUSIONS, IN NO OTHER EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR DAMAGE TO GOODWILL HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 THE PARTIES' LIABILITY FOR THE EXCLUSIONS WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WILL BE LIMITED TO FIFTY THOUSAND DOLLARS ($50,000).
11. TERM AND TERMINATION.
11.1 This Agreement commences on the Effective Date and continues until all licenses granted in accordance with this Agreement have expired or have been terminated, but in no event, later than June 20, 2018 ("Term").
11.2 A party may terminate this Agreement for cause: (i) upon 30 days' written notice to the other party of a material breach of this Agreement if such breach remains uncured at the expiration of such period; (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; and (iii) as otherwise provided herein.
11.3 Either party may terminate the Agreement for convenience upon written notice to the other party.
11.4 Upon termination of this Agreement, Customer shall: (i) cease all use of the Cloud Services. The parties' rights and obligations under Sections 4, 7.3, 8-10, 11.4, and 12 shall survive termination of this Agreement.
12.1 The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby.
12.2 Notices shall be in writing, sent using a recognized private mail carrier or the United States Postal Service and effective on proof of delivery (or e-mail to Customer). Notices sent to TRUSTe shall be addressed as follows: 835 Market Street, Suite 800 Box 137, San Francisco, CA 94103, Attn: CFO. Notices sent to Customer shall be sent to any of the addresses on file with TRUSTe.
12.3 No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by Customer and TRUSTe. This Agreement represents the entire agreement of the parties, and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. This Agreement is not for the benefit of any third party.
12.4 No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.
12.5 Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to a natural disaster, actions or decrees of governmental bodies or communications line failure which (i) hinders, delays or prevents a party in performing any of its obligations, (ii) is beyond the control of, and without the fault or negligence of, such party, and (iii) by the exercise of reasonable diligence such party is unable to prevent or provide against.
12.6 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, TRUSTe may assign this Agreement in its entirety, without consent of the Customer, to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity. Any attempted assignment in breach of this Section shall be void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. For clarity, TRUSTe may use subcontractors in the ordinary course of its business.
12.7 In any action to interpret or enforce this Agreement, the prevailing party shall be awarded all court costs and reasonable attorneys' fees it incurs.
12.8 There are no third party beneficiaries to this Agreement.
12.9 Each party agrees to comply fully with all applicable regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the importation and use of the Cloud Services.
12.10 This Agreement shall be governed exclusively by the internal laws of the state of California, without regard to its conflicts of laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in San Francisco, California, for resolution of any disputes arising out of this Agreement.