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Subscription and Services Agreement
This Subscription and Services Agreement (the “Agreement”) is entered into between TrustArc Inc, a Delaware corporation, with offices at 2121 N. California Blvd. Suite 290, Walnut Creek, California 94596, on behalf of itself and its Affiliates, (hereinafter collectively “TrustArc”) and Customer as listed on the Order. TrustArc and Customer may also be referred to individually as “Party” or collectively as the “Parties.” It is effective as of the date of your acceptance of the Order to which this Agreement is incorporated by reference (“Effective Date”). Capitalized terms used herein will have the definitions designated in the applicable section where they are defined.
1. DEFINITIONS.
1.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2. “Customer Data” means any files, documents, content, data, personal information, evidence, responses, assessments, intake form information, consent preferences, and similar data that TrustArc, in each case, maintains on Customer’s behalf, as well as any other information Customer or its Users or end-users may upload or submit to Customer’s Solution account in connection with the Solutions.
1.3. “Customer Equipment” means Customer’s computer hardware, software, and network infrastructure used to access the Solutions.
1.4. “Documentation” means the instructions, user guides, help and training materials, description of Support and other descriptive product information pertaining to the use of the Solutions that are made available to Customer by TrustArc.
1.5. “Malicious Code” means code, files, scripts, agents, malware, or programs intended to do harm, including but not limited to viruses, worms, time bombs, and Trojan horses.
1.6. “Order” means the TrustArc Privacy Solutions Order (“PSO”), or other document executed by the Parties, identifying the Solutions, scope, purchase terms, charges and other information relevant to a specific transaction between TrustArc and Customer. Each Order will be governed by this Agreement and is incorporated therein.
1.7. “Services” means, as applicable, consulting services or managed services procured from TrustArc as further described in a valid Order.
1.8. “Solutions” means the applicable SaaS solutions of TrustArc that Customer licenses under an Order as described in the “Solution Descriptions” available here.
1.9. “Support” means the support and service level agreement (“SLA”) for the Solutions available here and incorporated by reference into this Agreement.
1.10. “Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties, or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes as further described in Section 5.4 below.
1.11. “Term” means the period during which Customer is subscribed to and entitled to use the Solutions, which includes the initial term and any applicable renewal term(s).
1.12. “Updates” means all updates and enhancements that TrustArc generally makes available at no additional charge to its customers of its Solutions listed in an Order (as applicable).
1.13. “Usage Data” means usage information such as technical logs, number, and type of User visits, statistical, functional, or other information obtained from Customer’s use of the Solution, in each case, which excludes Customer Data.
1.14. “Users” means Customer’s employees, contractors, agents, and other individuals or entities who are authorized to use the Solutions on Customer’s behalf. The scope of Users or “use” may be further defined or modified in the Order or applicable Solutions Description.
2. PROVISION OF SOLUTIONS.
2.1. Access to Solutions. Subject to the terms and conditions of this Agreement, and timely payment of applicable Fees (described below), during the subscription Term, TrustArc will make the Solutions available to Customer for Customer’s internal business use at the terms and purchase price, agreed to by and between Customer and TrustArc pursuant to an applicable Order and in accordance with applicable law. Customer agrees that its purchase and use of the Solutions are not contingent on any future functionality or features, or dependent on oral or written public comments made by TrustArc regarding future functionality or features.
2.2. Privacy and Security. TrustArc maintains a global privacy and security program which includes administrative, technical, and organizational safeguards designed to protect Customer Data and any associated personal information collected and/or processed on Customer’s behalf in accordance with the Data Processing Addendum (“DPA”) available here, and the Technical and Organizational Measures (“TOMS”) available here, which are, in each case, incorporated by reference into this Agreement.
2.3. Updates to Solutions. Subject to Section 7 below, TrustArc may issue new releases for the Solutions during the subscription Term which may include Updates, modifications, or other enhancements. These Updates, if any, are included in the Fees set out in the Order.
2.4. Trial and Beta Access. TrustArc may make the TrustArc Solutions available to Customer on a free trial basis or as a beta or early access offering (“Trial Access”). If Customer receives Trial Access, Customer’s access and use is solely permitted for Customer’s internal evaluation during the Trial Access period designated by TrustArc under an Order (or if not designated in an Order, 30 days) (“Trial Period”). Any Customer Data entered or generated by Customer during the Trial Access should be exported by Customer at the end of the Trial Period unless Customer purchases a license to the same Solutions. TrustArc is under no obligation to retain the Customer Data entered during the Trial Period for the applicable trial Solution, if the requisite license is not purchased. Notwithstanding anything to the contrary in this Agreement and unless prohibited by applicable law, TrustArc provides the Trial Access “AS IS” with no warranty, indemnity, or Support.
2.5. Assurance Solutions. If an Order includes Assurance Solutions, the Assurance Services Addendum (“ASA”) available here shall apply and will be deemed incorporated by reference into this Agreement.
3. CUSTOMER RESPONSIBILITIES.
3.1. Users. Customer is responsible for: (a) Users compliance with this Agreement and any Order(s) issued hereunder; (b) maintaining the confidentiality of usernames, passwords and other account information (as applicable); (c) obtaining and maintaining any Customer Equipment and any ancillary services needed to connect to, access or otherwise use the Solutions; (d) the accuracy and quality of Customer Data and the means (inclusive of lawful basis) by which Customer acquired and maintains it; (e) ensuring that Users use the Solutions only in accordance with (i) Documentation, and (ii) all applicable laws and government regulations. Customer will notify TrustArc immediately of any unauthorized use of, or access to, the Solutions or User login credentials.
3.2. Restrictions. Customer shall not (and will not permit anyone else to): (a) resell, sublicense, lease, time-share or otherwise make the Solutions available to any third-party except where expressly authorized by TrustArc in writing; (b) send or store infringing or unlawful material using the Solutions; (c) except where expressly authorized by TrustArc in writing, provide, upload, and/or submit information that is defined as “sensitive” or as a “special category” under applicable privacy and data protection laws to TrustArc; (d) attempt to gain unauthorized access to, or disrupt the integrity, security, or performance of, the Solutions or the data contained therein; (e) modify, copy or create derivative works based on the Solutions; (f) data mine, scrape, reverse engineer, decompile, disassemble the Solutions; (g) negligently or knowingly introduce or permit the introduction of Malicious Code or other programming routines intended to damage any system, service, solution, or data; (h) access the Solutions for the purpose of building a competitive product or service or copying its features or user interface; (i) use the Solutions, or permit it to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without the prior written consent of TrustArc; (j) engage in any fraudulent, misleading, illegal or unethical activities related to the Solutions; (k) send unsolicited communications, promotions, advertisements in violation of any application law or regulation, inclusive of anti-spam laws; (l) permit access to the Solutions by a direct competitor of TrustArc; or (m) use the Solutions or any TrustArc intellectual property or Confidential Information (e.g., exported from the Solutions), to train any artificial intelligence, machine learning, large language models, or other similar technologies.
3.3. Affiliates. Customer’s Affiliate(s) may purchase Solutions under this Agreement if such Affiliate directly enters into an Order with TrustArc, and by doing so such Affiliate agrees to be bound by the terms of this Agreement as if it were an original Party hereto.
4. PROPRIETARY RIGHTS AND LICENSES.
4.1. Ownership; Reservation of Rights. As between TrustArc and Customer, all rights, title, and interest in and to all intellectual property rights in the Solution and TrustArc’s Confidential Information are and will remain owned exclusively by TrustArc and its licensors. Ownership in all Updates, derivatives, modifications, new functionalities, enhancements, templates, formats, and customization related to the Solution created by or on behalf of TrustArc will immediately vest in TrustArc upon creation. Nothing in this Agreement will preclude or restrict TrustArc from using or exploiting any concepts, ideas, techniques, or know-how of or related to the Solution.
4.2. Customer Data. As between Customer and TrustArc, Customer Data, and Customer Confidential Information are and will remain owned exclusively by Customer. Customer hereby grants TrustArc, its Affiliates, and its sub-processors a worldwide, limited-term license to utilize Customer Data (subject to Section 2.2 above) as necessary for TrustArc to analyze, host, copy, transmit, display, access, and otherwise use Customer Data to provide, operate, develop, and support the Solutions in accordance with this Agreement and each Order executed hereunder.
4.3. Usage Data. Customer agrees that TrustArc and its Affiliates (as applicable) may collect, use, and otherwise process Usage Data for its own internal business purposes (e.g., internal analytics and analysis). In any regard, Usage Data shall only be used in an aggregated and anonymized manner such that Customer cannot be identified.
4.4. Feedback. To the extent that Customer or its Authorized Users provide any recommendations, suggestions, proposals, ideas, improvements, or other feedback regarding the Services or Documentation (“Feedback”), Customer hereby grants TrustArc an irrevocable, perpetual, royalty-free license to use, incorporate, and further develop such Feedback without any restrictions or attribution.
5. FEES AND PAYMENT.
5.1. Fees. Customer shall pay TrustArc all undisputed fees set forth in the applicable Order (“Fees”). Except as expressly set forth in this Agreement, all payment obligations are non-cancelable, and all Fees paid are non-refundable.
5.2. Payment Terms. Unless otherwise stated in an applicable Order, all Fees will be billed annually in advance and in United States dollars. All invoices for Fees are due and payable within the timeframe set forth in the applicable Order, without deduction or set off. If Customer fails to pay any undisputed portion of a past due invoice within ten (10) business days after receiving notice that its account is overdue, TrustArc may, without limiting its other rights and remedies, suspend the applicable Solutions until such amounts are paid in full (“Non-Payment Suspension”). TrustArc will not be obligated to continue to provide Solutions without payment of applicable Fees.
5.3. Use of Purchase Orders. No additional or inconsistent terms of any purchase order, or other form provided by Customer, will modify or supplement this Agreement, regardless of any failure of TrustArc to object to such terms, and any such additional or inconsistent terms in the purchase order will be void.
5.4. Taxes. Unless otherwise provided, Fees do not include any Taxes. Customer is responsible for paying all Taxes, including, but not limited to sales, use, GST, and VAT taxes, associated with its purchases hereunder, excluding Taxes based on TrustArc’s net income or property. If TrustArc includes on the invoice such Taxes for which Customer is responsible, the tax amount invoiced shall be paid by Customer, unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority upon execution of this Agreement. Taxes not included on a TrustArc invoice shall be the responsibility of the Customer to remit to the appropriate tax authorities as necessary.
6. THIRD-PARTY APPLICATIONS.
Customer may opt to use the Solutions with separately procured or purchased (i.e., not from TrustArc) third-party sites or applications (“Third-Party Applications”) as it deems appropriate. Use of such Third-Party Applications is subject to the applicable service provider’s terms and conditions, including the payment of applicable fees, and not this Agreement. TrustArc has no liability for Third-Party Applications or how such Third-Party Applications use Customer Data. If Customer enables a Third-Party Application with the Solutions, TrustArc is expressly granted permission to access and/or exchange Customer Data with such the Third-Party Application on Customer’s behalf in accordance with the terms of this Agreement.
7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, AND DISCLAIMERS.
7.1. General Warranty. Each Party represents and warrants that: (a) it has the legal power to enter into and perform under this Agreement; and (b) it shall comply with all applicable laws in its performance hereunder.
7.2 TrustArc Limited Warranty. TrustArc warrants that: (a) the core functionality of the Solutions will perform materially in accordance with the applicable Documentation; (b) TrustArc will not materially decrease the core functionality of the Solutions during the current subscription Term; (c) TrustArc will use industry standard measures designed to prevent TrustArc from introducing Malicious Code through the Solutions; and (d) TrustArc will perform applicable Services in a diligent and professional manner. Customer’s exclusive remedy and TrustArc’s entire liability for a breach of the above warranties will be the correction of the deficient service that caused the breach of warranty, provision of comparable functionality, or if, TrustArc cannot accomplish the foregoing in a commercially reasonable manner, TrustArc may terminate the Agreement and refund Customer the prepaid, unused Fees for the remainder of the then-current term solely for the terminated Solution.
7.3. Customer Limited Warranty. Customer warrants that it: (a) understands that its use of any Solution does not constitute specific compliance with any law or regulation; and (b) has an independent duty to comply with any and all laws and regulations irrespective of whether the Solutions provided hereunder may be used by Customer to facilitate, support and/or demonstrate such compliance. TrustArc shall have no liability for Customer’s decision to take or not to take action based on the compliance information, rules, intelligence, or recommendations built into the Solutions.
7.4. Disclaimers. TRUSTARC DOES NOT REPRESENT OR WARRANT THAT: (i) THE USE OF ITS SOLUTIONS WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA, (ii) ITS SOLUTIONS WILL MEET CUSTOMER’S REQUIREMENTS, OR (iii) ALL ERRORS OR DEFECTS WILL BE CORRECTED. USE OF THE SOLUTIONS IS AT CUSTOMER’S SOLE RISK. TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRUSTARC DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, THEREFORE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMERS LOCATED IN THOSE JURISDICTIONS.
8. INDEMNIFICATION.
8.1. TrustArc Indemnification.
(a) TrustArc shall: (1) defend any claim brought against Customer by a third-party to the extent such claim alleges that Customer’s use of the Solutions (as authorized by this Agreement) infringes any valid and enforceable third-party U.S., Canadian, European Union and/or European Union Member State, or United Kingdom intellectual property rights (“Claim”); and (2) indemnify and pay any direct damages, inclusive of reasonable out-of-pocket expenses and attorney’s fees, finally awarded against Customer by a court of competent jurisdiction (or amounts agreed in monetary settlement) in any such Claim.
(b) If any such Claim is brought or threatened, or if TrustArc reasonably believes that a Solution(s) may become the subject of an infringement Claim, TrustArc may, at its sole option and expense: (1) procure for Customer the right to continue to use the applicable Solution; (2) modify the Solution to make it non-infringing; (3) replace the affected aspect of the Solution with non-infringing technology having substantially similar capabilities; or (4) if TrustArc determines none of the foregoing is commercially practicable, terminate the Agreement upon thirty (30) days written notice and refund Customer any prepaid, unused, fees for the remainder of the applicable Term.
(c) TrustArc’s defense and indemnity obligations do not apply to: (1) any modification to the Solutions made by anyone other than TrustArc, to the extent that the Solutions would not be infringing but for such modification; (2) any use of the Solutions in combination with software, products or services not provided by TrustArc, to the extent that the Solutions would not be infringing but for such combination; (3) Customer’s use of the Solutions not in compliance with the terms of this Agreement, to the extent the Solutions would not be infringing but for such non-compliance. This indemnity states TrustArc’s entire liability, and Customer’s exclusive remedy, for any third-party Claims as described in Section 8.1.
8.2. Customer Indemnification. Customer will defend TrustArc from and against any third-party claims to the extent resulting from: (a) Customer Data (if used by TrustArc in compliance with this Agreement); or (b) an alleged breach of Section 7.1(b) above. Customer will indemnify and pay any direct damages, inclusive of reasonable out-of-pocket expenses and attorney’s fees, finally awarded against TrustArc (or amounts agreed in monetary settlement) with respect to such claim. This indemnity states Customer’s entire liability, and TrustArc’s exclusive remedy, for any third-party claims as described in this Section 8.2.
8.3. Procedure. The defense and indemnity obligations above are conditioned upon the indemnified Party providing the indemnifying Party with: (a) prompt written notice of the claim, provided that failure to provide prompt notice will not relieve the indemnifying Party of its indemnification obligations unless the indemnifying Party is materially prejudiced by the delay; (b) sole control over the defense and settlement of a claim, provided that the indemnifying Party will not agree to any settlement assigning liability to or admitting liability by the indemnified Party without such Party’s consent which may not be unreasonably withheld; and (c) reasonable cooperation and assistance at the indemnifying Party’s reasonable request. The indemnified Party may appear in connection with such claims, at its own expense, through counsel reasonably acceptable to the indemnifying Party.
9. CONFIDENTIALITY.
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 (inclusive of pricing and other terms reflected in an Order), the Solutions, 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. As between the Parties, each Party retains all ownership and rights in and to its Confidential Information. The Receiving Party will only use Confidential Information in accordance with the Agreement and 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 a reasonable standard of care). 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 reasonable 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 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, either return to the Disclosing Party and/or request deletion (or destruction, as the case may be) of all materials containing such Confidential Information.
10. LIMITATION OF LIABILITY.
10.1. Exclusion of Damages. NEITHER PARTY WILL BE LIABLE FOR ANY LOST PROFITS, REVENUES, GOODWILL OR BUSINESS INTERRUPTION, SUBSTITUTE GOODS OR SERVICES OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10.2. Limitation of Liability. A PARTY’S AGGREGATE CUMULATIVE LIABILITY FOR ALL DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOLUTIONS PROVIDED HEREUNDER WILL NOT EXCEED THE ANNUALIZED FEES PAID TO TRUSTARC GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT EXPAND THIS LIMIT. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.2 IS TO ALLOCATE RISK BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SOLUTION CHARGES AND PROFESSIONAL SERVICE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF TRUSTARC WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE LIABILITY LIMITATIONS UNDER THIS SECTION 10.2 WILL NOT APPLY TO: (A) CUSTOMER’S OBLIGATIONS TO PAY FEES DUE UNDER THIS AGREEMENT; (B) CUSTOMER’S MATERIAL BREACH OF SECTION 3.2 (RESTRICTIONS); (C) AMOUNTS OWED AS FINALLY DETERMINED PURSUANT TO EITHER PARTY’S INDEMNITY OBLIGATIONS UNDER SECTION 8; OR (E) EITHER PARTY’S GROSS NEGLIGENCE, FRAUD, OR WILFUL MISCONDUCT.
11. TERM AND TERMINATION.
11.1. Term of Agreement. This Agreement will commence on the Effective Date and continue until terminated as permitted herein (the “Term”). If there are no active Orders, this Agreement may be terminated by either Party upon ninety (90) days’ prior written notice.
11.2. Subscription Term. The initial subscription Term and any applicable renewal subscription Term will commence and expire in accordance with the start date and end date set forth in the Order. Unless otherwise specified in an Order, a subscription Term will automatically renew for one (1) year on TrustArc’s then-current pricing and terms, unless either Party gives the other Party written notice of non-renewal at least thirty (30) days before the end of the relevant subscription Term. Any new service subsequently added to Customer’s subscription will be coterminous with the current subscription Term.
11.3. Suspension. In the event of Customer’s or a User’s breach of this Agreement, including without limitation, for Non-Payment Suspension or violation of the restrictions in Section 3.2 above, TrustArc, in its reasonable discretion, may suspend Customer or a User’s access to or use of the Solutions. Notwithstanding the foregoing, TrustArc shall use good-faith, reasonable efforts, unless the circumstances dictate otherwise, to reasonably notify Customer or a User via email before taking the foregoing actions.
11.4. Termination. Either Party may terminate this Agreement or any Order by written notice if the other Party is in material breach of this Agreement, where such material breach is not cured within thirty (30) days after written notice of the breach from the non-breaching Party, or with immediate effect where such material breach cannot be cured. For the avoidance of doubt, Customer’s noncompliance with Section 3.2 is deemed a material breach of this Agreement. This Agreement may be terminated by either Party if the other Party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, and such petition or proceeding is not dismissed within thirty (30) days. The sole and exclusive remedy for any termination associated with this section shall be a pro-rated refund of any pre-paid, unused, fees for the remainder of the then-current term for the applicable Solutions.
11.5. Effect of Termination. Upon the termination of this Agreement for any reason: (a) all outstanding Orders will automatically terminate; (b) Customer and its Users shall immediately cease access and use of the Solutions, other than for retrieval purposes provided in (d); (c) all outstanding payment obligations of Customer will become due and payable immediately; and (d) for thirty (30) days following the termination of this Agreement TrustArc shall make Customer Data available to Customer, at Customer’s request, solely for purpose of allowing Customer to retrieve Customer Data. After thirty (30) days, TrustArc will have no obligation to maintain or provide any Customer Data, and thereafter may delete or destroy all copies of Customer Data, except if TrustArc is required to retain a copy of such Customer Data for legal purposes, on condition that such copy remains subject to the confidentiality provisions of this Agreement.
11.6. Surviving Provisions. The Sections titled “Fees and Payment,” “Ownership,” “Confidentiality,” “Representations, Warranties, Exclusive Remedies and Disclaimers,” “Term and Termination,” “Indemnification,” “Limitation of Liability,” and “General Provisions” will survive any termination of this Agreement.
12. GENERAL.
12.1. Relationship of the Parties. The Parties are independent contractors, and nothing in this Agreement creates a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. If you are an employee, contractor, other member of the workforce, or a representative of a direct competitor of TrustArc, you may not access the Solutions, except with the prior written consent of TrustArc. There are no third-party beneficiaries to this Agreement and no third-party beneficiary rights shall be recognized hereunder.
12.2. Notices. Any required notice will be given in writing by customary means with receipt confirmed at the address of each Party set forth on the Order, or to such other address as either Party may substitute by written notice to the other. Any required notice under this Agreement or any Order may be provided to the email address in the signature block, or where otherwise indicated, followed by the hard copy notice required. The hard copy notice may be waived by both Parties via the email notice. TrustArc’s email address for notices is [email protected]. Customer must provide their email address for notices in the Order or in the signature block herein, if applicable. Notices will be deemed to have been given at the time of actual delivery in person, one (1) day after delivery to an overnight courier service, three (3) days after deposit via certified mail, or upon confirmation of receipt if sent by email.
12.3. Amendments; Entire Agreement; Order of Precedence. No amendment of any provision of this Agreement shall be effective unless in writing and signed by Customer and TrustArc. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or any other document, unless mutually agreed upon by and between the Parties, shall be incorporated into this Agreement, and all such terms shall be void. This Agreement, which includes all Orders and attachments thereto, represents the entire agreement of the parties, and supersedes all prior or contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. Orders may be executed in counterparts and with electronic signatures, each of which shall constitute an original. Headings and captions are for convenience only and not to be used in interpretation of this Agreement. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the DPA; (2) the Order; (3) this Agreement; and (4) any links provided herein, to the extent incorporated by reference.
12.4. Waivers; Severability. 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 and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and all remaining provisions shall remain in effect.
12.5. Force Majeure. Neither Party will be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in its performance under this Agreement (except for payment of Fees) due to any cause beyond its reasonable control, including without limitation elements of nature or acts of God, war, riots, civil disorders, rebellions, revolutions, pandemics or epidemics (or similar regional health crisis), actions or decrees of governmental bodies, acts or threats of terrorism, strikes, labor disputes, failure of utilities or telecommunications, or other causes that are: (i) beyond the reasonable control of and without fault or negligence of the affected Party; (ii) hinders, delays or prevents such Party in performing any of its obligations; and (iii) by the exercise of reasonable diligence such Party is unable to prevent or protect against, (each a “Force Majeure Event”). The Party suffering a Force Majeure Event shall use reasonable efforts to mitigate against the effects of such Force Majeure Event.
12.6. Assignment. 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, either party may assign this Agreement in its entirety, without consent of the other party, to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity. If an assignment of this Agreement occurs pursuant to a merger, reorganization or sale of all or substantially all assets or equity, the assigning party agrees to endeavor to notify the other party as soon as practicable thereafter, but in any event, within thirty (30) days of such assignment. Any attempted assignment in breach of this Section shall be null and void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.7. No Class Actions. Customer may only resolve disputes with TrustArc on an individual basis and agrees not to bring or participate in any class, consolidated, or representative action against TrustArc or any of its employees or affiliates.
12.8. Compliance. Each Party agrees to comply fully with all applicable laws, rules, and regulations, including but not limited to all applicable anti-bribery and anti-corruption laws and regulations, including without limitation the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act (the “Anti-Corruption” laws). Each Party agrees to comply with all applicable rules and 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 Solutions.
12.9. Governing Law. 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. In any action to interpret or enforce this Agreement, the prevailing Party shall be awarded all court costs and reasonable attorneys’ fees it incurs.
Last updated May, 2024
