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Service Agreement

SERVICE AGREEMENT

(TRUEPIC VISION SERVICE)

Last Updated October 29, 2019

This Service Agreement is a binding agreement made between, Truepic, Inc. (hereinafter, “Truepic,” “we” or “our”) and you, a customer of Truepic that has entered into an Enterprise Service Order and Subscription Agreement (a “Subscription Agreement”) which incorporates this Service Agreement in its entirety. As used herein, “you”, “your”, and “Customer” refer to the entity or person that entered into such Subscription Agreement, together with all Affiliates of such entity or person. All components of this Service Agreement are collectively referred to herein as the “Agreement”. Capitalized terms used herein shall have the meanings ascribed to them in this Agreement.

You acknowledge that you have had the opportunity both to review this Agreement and to consult with legal counsel prior to acceptance of this Agreement. By signing a Subscription Agreement or by accessing or using the Service, you acknowledge that you have read and understand this Agreement, that you accept all of the terms and conditions contained here in full, and that you agree that the terms and conditions shall be fully and legally binding upon you and your Affiliates, without the need for any further indication of acceptance on your part (such as by signature, click through or other means of electronic acceptance). If you are acting on behalf of an entity, you represent that you have full legal authority to bind the entity and its Affiliates.

IF YOU CHOOSE NOT TO AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT ACCESS AND/OR USE THE SERVICES. YOUR ACCESS AND/OR USE OF THE SERVICES SHALL CONSTITUTE YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.

TRUEPIC RESERVES THE RIGHT TO CHANGE THIS AGREEMENT OR ANY PART OF THE SERVICE AT ANY TIME. ALTHOUGH TRUEPIC MAY INCLUDE A NOTICE ON THE TRUEPIC WEBSITE OR WITHIN THE SERVICE THAT THIS AGREEMENT HAS BEEN MODIFIED, SUCH NOTICE MAY NOT REMAIN IN PLACE FOR ANY EXTENDED PERIOD OF TIME. ACCORDINGLY, YOU SHOULD REVIEW THIS AGREEMENT, AS POSTED ON THE SERVICE, FROM TIME TO TIME. TO THE FULLEST EXTENT PERMITTED UNDER ALL APPLICABLE LAWS, RULES, REGULATIONS AND REQUIREMENTS (COLLECTIVELY, “APPLICABLE LAWS”), YOUR CONTINUED USE OF THE SERVICE AFTER ANY REVISED SERVICE AGREEMENT HAS BEEN POSTED CONSTITUTES YOUR ACCEPTANCE OF THE REVISED AGREEMENT AND YOU SHALL BE BOUND TO THE REVISED AGREEMENT AS THOUGH IT WAS IN EFFECT AT THE TIME YOU ORIGINALLY ENTERED INTO THE APPLICABLE SUBSCRIPTION AGREEMENT OF WHICH THIS AGREEMENT IS A PART.

This Agreement is effective between you and Truepic as of the date of your execution of the Subscription Agreement (the “Effective Date”). This Agreement, as modified, amended or restated by Truepic, will continue in full force and effect until it is terminated as set forth herein.

  1. Definitions. The following capitalized terms shall have the meanings set forth below:

Agreement” means the Subscription Agreement and this Service Agreement, including any exhibits attached hereto.

Mobile App” means the mobile application component of the Truepic Vision service (each photo inspection request initiated through Truepic Vision requires photos to be captured through the Mobile App which is downloaded by End-Users to their mobile devices; the mobile application is available on both the Google Play Store and Apple App Store).

Customer Content” means photos, information, data, text, images, graphics, videos, comments, posts and any other content provided by Customer or its End-Users through the Service and any analysis, results or outcomes provided by the Service based on such content.

End User” means any person or entity, such as Customer’s clients, contractors or employees, involved in capturing photo or video images and providing such images to Customer or its affiliates for use with the Service.

Intellectual Property Right” means any patent, utility model, design patent, copyright, trademark, service mark, trade dress, trade name, logo, trade secret, moral right, know-how, all rights in computer software and data, database rights, rights of privacy and all other intangible property rights and privileges throughout the world, whether or not a party has applied for or been granted registration or other protection therefor.

Personal Information” means information about an identifiable individual.

“Service” means Truepic Vision and any documentation, fixes, updates and upgrades that are provided or made available to Customer by Truepic.

Truepic Vision” means Truepic’s plug & play photo inspection solution used to determine whether certain photo or video images are authentic and unaltered. The Truepic Vision system includes a web application & administration system for the Customer. Through the Truepic Vision web application, the Customer may initiate a photo inspection request by entering the name & phone number of a requestee End-User. The requestee End-User will complete the photo inspection using the Mobile App. Using the Truepic Vision administration system, the Customer may add, remove, and manage internal Customer user accounts that may interact with the web application to conduct photo inspections

Virtual Inspection” means an inspection conducted using Truepic Vision submitted from a single End-User and related to a single event (e.g. an insurance claim, a loan application, etc.) that may include up to 100 images. A Virtual Inspection is initiated by Customer sending an End User an email, text message or similar communication and Customer receiving images in return from such End User. In the event a single inspection conducted using Truepic Vision includes more than 100 but less than 200 images, such inspection shall count as two (2) Virtual Inspections for the purposes of calculating fees in accordance with Section 6 (Fees and Payment). This shall continue if a single inspection contains more than 200 images, with each additional 100 images counting as one additional Virtual Inspection.

  1. Service
    • 2.1 Service. Truepic shall provide, and Customer shall use, the Service in accordance with the terms and conditions of this Agreement. In using the Service, Customer agrees to comply with the User Code of Conduct set forth in Exhibit A.
    • 2.2 Documentation. Truepic will provide or make available to Customer documentation (“Documentation”) that describes the major features and functionality of the Service.
    • 2.3 Updates. Truepic may update the Service and/or the Documentation from time to time. Such updates are included in Customer’s subscription to the Service.
    • 2.4 Links to Other Sites. For Customer’s convenience, Truepic may provide links within the Service to other third party web sites that are not operated by Truepic (“Third Party Site(s)”). Truepic has no control over these Third Party Sites and is not responsible or liable for the availability, security, content, or resources of such Third Party Sites. The inclusion of links to Third Party Sites does not imply a referral by Truepic to, or an endorsement by Truepic of, the linked Third Party Site or any products, services, or other materials on or available from such Third Party Site. Truepic is not liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with Customer’s use of such content, information, products, goods or services available on or through any such Third Party Sites.
  2. License Grants; Ownership.
    • 3.1 Customer License Grant. Customer grants Truepic a non-exclusive, worldwide, non-sublicensable, royalty-free right and license during the Term to use and modify any Customer Content solely to deliver the Service. Truepic may not publicly display Customer Content without the prior written consent of Customer.
    • 3.2 Truepic License Grant. Subject to the terms and conditions of this Agreement, Truepic grants Customer a non-exclusive, worldwide, non-transferable, non-sublicensable right and license during the Term to access and use the Service for the purposes contemplated in this Agreement.
    • 3.3 Ownership. Truepic owns all right, title, and interest in and to the Service, and any related suggestions, ideas, enhancements, requests, feedback, and recommendations provided by Customer and its affiliates to Truepic. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service, or Intellectual Property Rights of Truepic. The contents of the Service are copyrighted under United States copyright laws and the Service is protected by multiple U.S. Patents.
    • 3.4 Restriction on Modification. Except as otherwise provided herein, Customer shall not: (a) reverse engineer, disassemble or decompile the Service; (b) remove, obscure or alter any proprietary rights notices, branding, text, or images, affixed or related to the Service; (c) access or attempt to access Truepic’s other accounts, computer systems or networks not covered by this Agreement, through password mining or any other means; or (d) use the Service to store or transmit any Customer Content containing: (i) any malicious code; (ii) any unlawful, defamatory or pornographic material; or (iii) any material that encourages conduct that could constitute a criminal offense or violate applicable law; or (e) knowingly allow any End-User or other third party to do any of the foregoing. Customer shall promptly notify Truepic if Customer becomes aware of any unauthorized use of the whole or any part of the Service.
    • 3.5 Limitations on Use. Except as expressly authorized by this Agreement, Customer may not: (a) copy, modify or create derivative works of the Service; (b) license, sublicense, sell, rent, lease, resell, transfer, assign or otherwise make available to any third party the Service or any part thereof; (c) use the Service to impersonate any person or entity or otherwise misrepresent its affiliation with a person or entity; (d) use the Service to breach any right of privacy, confidentiality or right under applicable consumer or data protection laws; (e) interfere with the Service or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or (f) work around any limitations or permissions of the Service.
    • 3.6 No Other Rights Granted. The parties acknowledge and agree that, except for the rights and licenses expressly granted by each party to the other party under this Agreement, each party will retain all right, title and interest in and to its software, hardware, technology or products, trademarks, and all content, information and other materials on its website(s), technology platforms and mobile applications, and nothing contained in this Agreement will be construed as conferring upon such party, by implication, operation of law or otherwise, any other license or other right. Without limiting the generality of the foregoing, the parties agree that Truepic shall maintain all Intellectual Property Rights in and to the Service and Customer shall maintain all Intellectual Property Rights in and to the Customer Content. Neither party will, whether during or after the Term of this Agreement, contest or aid others in contesting, or doing anything which otherwise impairs the validity of any Intellectual Property Right of the other party.
  3. Responsibilities of Customer.
    • 4.1 Connectivity. Customer must provide all equipment and software (such as an internet browser) necessary to connect to the Service, including but not limited to, a computer or mobile device that is suitable to connect with and use the Service. Truepic shall not be responsible for any fees, including Internet connection or mobile fees, that may be incurred when accessing the Service.
    • 4.2 Customer Content. Customer shall not submit Customer Content that: (i) includes material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights (including, without limitation, trademark, privacy and publicity rights) unless Customer is the owner of such rights or Customer has all necessary license rights to do so and to grant Truepic the rights set forth in this Agreement; (ii) includes any material that by itself, or by its use as permitted in this Agreement, infringes upon, misappropriates or violates the rights of any person or entity or any applicable laws; (iii) is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law or is otherwise inappropriate; (iv) contains Personal Information, except with the consent of the individual to whom such information relates or as otherwise expressly permitted under applicable data protection and privacy laws; or (v) could be considered bulk unsolicited communications or otherwise violate applicable anti-spam laws.
  4. Support and Maintenance. During the Term, and provided that Customer has paid all Fees due and owing to Truepic and is not otherwise in material non-compliance with the terms of this Agreement, Truepic will provide Customer with reasonable telephone, email, and website-based technical support services to assist Customer in utilizing the Service, consistent with such services that it generally offers other similarly situated customers.
  5. Fees and Payment.
    • 6.1 Fees. Customer is responsible for timely payment of all fees specified in the Subscription Agreement (“Fees”).
    • 6.2 Invoicing and Payment. All Fees shall be due and payable within thirty (30) days after the date the applicable invoice is electronically sent to Customer. In the event Customer disputes any invoiced Fees, Customer will provide written notice of the disputed amount within fourteen (14) days after receiving such invoice and timely pay any undisputed portion of such invoice. Upon resolution of the dispute, Customer will pay Truepic the portion of the disputed amount agreed or determined to be owing to Truepic.
    • 6.3 Taxes. The Fees are inclusive of all sales, use or VAT taxes that may be legally assessed by Truepic for the Service.
  6. Term and Termination.
    • 7.1 Term. This Agreement is effective as of the Effective Date, and shall continue in force, unless otherwise terminated, for a period of one (1) year (the “Initial Term”). Unless either party provides written notice to the other party of its intent not to renew this Agreement at least sixty (60) days prior to the end of the then-current term or the Agreement is otherwise terminated as provided herein, the Agreement shall automatically renew for an additional one (1) year terms (any renewal and the Initial Term are referred to as the “Term”).
    • 7.2 Termination for Convenience During Initial Term. During the Initial Term only, Customer may terminate this Agreement for convenience as follows: (i) if a trial period is specified in the Subscription Agreement, Customer may provide notice of termination to Truepic at any time prior to the end of the trial period which shall be effective immediately, or (ii) if no trial period is specified in the Subscription Agreement (or after the end of the trial period but prior to the end of the Initial Term if a trial period is specified), Customer may provide notice of termination to Truepic which shall be effective thirty (30) days after such notice is given.
    • 7.3 Termination for Cause. Either party may terminate this Agreement for cause if any material breach or default of the terms and conditions of this Agreement remains uncured after thirty (30) days following written notice of such breach.
    • 7.4 Termination for Bankruptcy or Insolvency. Either party may terminate this Agreement if the other party becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, becomes subject to control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding.
    • 7.5 Suspension of Service. Truepic reserves the right to suspend Customer’s access to the Service, without liability to Customer, if Customer is (a) more than sixty (60) days late in payment of the service Fees due under this Agreement; or (b) in material breach of this Agreement. The foregoing shall be in addition to any other rights or remedies available to Truepic, including termination of this Agreement.
    • 7.6 Effect of Termination. In the event of termination or expiration of this Agreement, Customer shall discontinue all use of the Service and destroy or return copies of all Documentation or other documents provided by Truepic in its possession or control. Customer acknowledges that on expiration or earlier termination of this Agreement, Truepic may terminate Customer’s account, and its End-Users will therefore no longer have access to any of the Service. Truepic will maintain Customer’s Content for a period of thirty (30) days after the effective date of termination. Notwithstanding the foregoing, if Truepic terminates this Agreement for Customer’s insolvency, non-payment of Fees, or material breach, all Customer Content and mobile application information may be deleted permanently and may not be retrievable. Termination for any reason shall not relieve Customer of the obligation to pay any Fees accrued or due and payable to Truepic prior to the effective date of termination.
    • 7.7 Transition Service; Data Transfer. Upon expiration or termination of this Agreement for any reason, Truepic will, at Customer’s written request, prior to the date of expiration or termination, continue to allow Customer to access and use the Service after the date of any such expiration or termination for the sole purpose of effecting an orderly transition from the Service.  During such period, the then-existing fees will continue to be in effect and the terms of this Agreement shall survive and continue to govern the parties’ rights and obligations with respect to the Service. This transition period shall end when the transition from the Service has occurred, which period shall not exceed three (3) months following the expiration or termination date (the “Transition Period”). During the Transition Period, at Customer’s written request, Truepic we will transfer Customer’s Content and related data from Truepic’s databases and image storage on Amazon AWS to a file storage location designated by Customer.
    • 7.8 Survival. The provisions of Sections 1 (Definitions), 3.3, 3.4, 3.5, 3.6, 6 (Fees and Payment), 7.6 (Effect of Termination), 7.7 (Transition Service; Data Transfer), 7.8 (Survival), 8 (Data Protection), 9 (Confidentiality), 13.1 (Disclaimer of Warranties), 13.2 (Warranty Exclusions), 14 (Indemnification), 15 (Limitation of Liability) and 16 (Miscellaneous) shall survive expiration or termination of this Agreement.
  7. Data Protection. Truepic shall use and access Customer Content for the purposes of providing the Service in accordance with the Agreement. Truepic represents and warrants that it shall comply with its obligations under privacy and data protection laws applicable to it in connection with the Service.
    • 8.1 Truepic will have no liability for any distribution, display or disclosure of Customer Content by Customer’s End-Users, regardless of whether such distribution, display or disclosure results in a violation of any applicable privacy or data protection laws.
    • 8.2 Except to the extent expressly otherwise provided herein, Customer is solely responsible for ensuring that its use of the Service complies with all applicable privacy and data protection laws. Without limiting the foregoing, to the extent that Customer Content includes Personal Information, Customer is responsible for ensuring that it has provided all necessary notices, obtained all necessary consents, and otherwise has all requisite authority to provide such Personal Information to Truepic and for Truepic to collect, use, store and disclose the Personal Information for the purposes of providing the Service contemplated under this Agreement.
  8. Confidentiality.
    • 9.1 “Confidential Information” means any of either party’s proprietary information, technical data, trade secrets or know-how, including, but not limited to, computer code, data, analytics, and related tools, stems and/or processes, product plans, designs, costs, prices, names, finances, marketing plans, business opportunities, personnel, research, development, know how, source code, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed by one party (“Discloser”) to another (“Recipient”), either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment, or the fact that negotiations or discussions are taking place between the Parties or that Confidential Information has been made available to a party. Confidential Information shall not include information that: (a) is or becomes generally available to the public through no fault or breach on the part of Recipient; (b) Recipient can demonstrate to have had rightfully in its possession prior to disclosure to Recipient by Discloser; or (c) Recipient rightfully obtains from a third party who has the right to transfer or disclose it.
    • 9.2 Non-Use and Non-Disclosure. Recipient shall not, during or subsequent to the Term of this Agreement, use Discloser’s Confidential Information for any purpose whatsoever other than the performance of the Service, or disclose Discloser’s Confidential Information to any third party. Recipient may disclose the Confidential Information to its employees and contractors with a bona fide need to know in order to fulfill the performance of the Service, and who have signed a nondisclosure agreement at least as protective of the disclosing party’s rights as those terms and conditions applicable to Recipient under this Agreement. It is understood that said Confidential Information will remain the sole property of Discloser.
    • 9.3 Return or Destruction of Materials. Upon the termination or expiration of this Agreement, or upon receipt of written request by a party, each party shall promptly deliver to the other party (or delete or destroy at such party’s request) any property and/or Confidential Information of the other party in its possession or control. Upon written request, such party will provide to the other party a written certificate stating that all such property and copies have been so delivered, deleted or destroyed.
  9. Marketing and Promotion
    • 10.1 Customer hereby grants to Truepic a worldwide, non-exclusive, royalty-free right and license to use Customer’s trade names, trademarks, service marks, domain names and other logos of Customer (the “Customer Trademarks”) solely in connection with Truepic’s marketing and promotion of the Service with Customer and in accordance with Customer’s trademark guidelines provided or made available by Customer to Truepic. All use by Truepic of the Customer Trademarks (including any goodwill associated therewith) will inure to the benefit of Customer. Truepic shall not challenge or assist others to challenge Customer Trademarks or the registration thereof by Customer, nor shall Truepic attempt to register any Customer Trademarks or domain names that are confusingly similar to those of Customer.
    • 10.2 Truepic hereby grants to Customer a worldwide, non-exclusive, royalty-free right and license to use Truepic’s trade names, trademarks, service marks, domain names and other logos of Truepic (the “Truepic Trademarks”) solely in connection with Customer’s marketing and promotion of the Customer Service with Truepic and in accordance with Truepic’s trademark guidelines provided or made available by Truepic to Customer. All use by Customer of the Truepic Trademarks (including any goodwill associated therewith) will inure to the benefit of Truepic. Customer shall not challenge or assist others to challenge Truepic Trademarks or the registration thereof by Truepic, nor shall Customer attempt to register any Truepic Trademarks or domain names that are confusingly similar to those of Truepic.
  10. Mutual Representations and Warranties.
    • 11.1 Each party represents and warrants to the other that as of the Effective Date: (i) it has full power and authority to enter into this Agreement, (ii) it is duly organized, validly existing and in good standing under the laws of its state of organization, (iii) its signatory to this Agreement has the right and authority to enter into this Agreement and to legally bind it to the terms and obligations of this Agreement, and (iv) no agreement previously entered into by such party will interfere with such party’s performance of its obligations under this Agreement.
  11. Truepic Warranty and Covenants..
    • 12.1 Truepic warrants that the Service will operate substantially and materially in accordance with its published specifications and online documentation during the Term of this Agreement, and that any professional services provided to Customer by Truepic will be provided in a professional and workmanlike manner.
    • 12.2 Truepic will maintain and support the Service consistent with generally accepted industry practices.
    • 12.3 Truepic will implement and maintain disaster recovery and business continuity plans, including procedures to be followed in the event Truepic’s facilities or equipment are destroyed or damaged. 
    • 12.4 Truepic shall notify Customer of a breach of security that results in a theft or unauthorized access to, use or disclosure of Customer Content (a “Security Breach”), promptly after it becomes aware of the Security Breach.  In any notification to Customer required under this Section, Truepic shall designate a single individual employed by Truepic as a contact regarding Truepic’s obligations under this Agreement. Unless prohibited by an applicable law, Truepic will also promptly notify Customer of any third-party legal process relating to any Security Breach, including, but not limited to, any legal process initiated by any governmental entity (foreign or domestic) and limit the associated disclosure to only that information that must be disclosed to comply with the order. In the event of a Security Breach, Truepic shall assist Customer in investigating and remedying the Security Breach.
  12. Warranty Disclaimers and Exclusions.
    • 13.1 Disclaimer of Warranties. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN, THE SERVICE, AND ANY OTHER APPLICATIONS, SERVICES, OR MATERIALS HEREUNDER ARE PROVIDED BY TRUEPIC AND ACCEPTED BY CUSTOMER “AS IS” AND WITHOUT WARRANTY OF ANY KIND AND THE PARTIES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
    • 13.2 Warranty Exclusions. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN, TRUEPIC DOES NOT WARRANT THAT THE SERVICE, OR ANY OTHER APPLICATIONS, SERVICES, MATERIALS PROVIDED UNDER THIS AGREEMENT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THEY OR THEIR ACCESS OR USE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SERVICE WILL BE SUITABLE FOR CUSTOMER’S NEEDS OR CUSTOMER’S INTENDED APPLICATIONS, OR THAT THE SERVICE WILL BE COMPATIBLE WITH OR OPERATE IN THE HARDWARE, SOFTWARE, OR WEBSITE CONFIGURATIONS THAT CUSTOMER SELECTS. TRUEPIC IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM USE OF THE INTERNET OR ELECTRONIC COMMUNICATIONS OR RELATED EQUIPMENT TO WHICH THE SERVICE MAY BE SUBJECT. TRUEPIC MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE SUITABILITY OF THIRD PARTY SERVICES OR FOR THE ACTS OR OMISSIONS OF PROVIDERS OF SUCH THIRD PARTY SERVICES.
  13. Indemnification.
    • 14.1 Indemnity Claim. Each party (the “Indemnifying Party”) will indemnify and defend the other party, its parent, affiliates and subsidiaries and their respective officers, directors, shareholders, employees, agents and representative (the “Indemnified Parties”) against any and all costs, losses, damages, judgments, penalties, interest, costs and expenses (including reasonable attorneys’ fees) arising out of any third party claim or action which alleges (a) that use of the Indemnifying Party’s software or services as permitted or required under this Agreement infringes any third party copyright, or any US patent of which the Indemnifying Party has actual knowledge as of the Effective Date; (b) a breach by the Indemnifying Party of its representations, warranties or other obligations set forth in this Agreement; (c) any use of the Indemnified Parties’ Intellectual Property Rights in a manner not explicitly authorized by this Agreement; or (d) that Customer, as the Indemnifying Party, in connection with Customer’s use of the Service or third party services: (i) failed to comply with any applicable laws and regulations, including any applicable data protection legislation or other laws relating to direct marketing activities of Customer; (ii) failed to comply with its obligations in Section 8.2; or (iii) violated the rights of a third party, including without limitation through any data processing instructions or data transfer instructions, or any integrations with third party services (each an “Indemnity Claim”).
    • 14.2 Indemnification Process. The Indemnifying Party will be responsible for an Indemnity Claim provided that the Indemnified Parties: (a) give written notice to the Indemnifying Party promptly upon becoming aware of an actual or threatened Indemnity Claim; (b) permit the Indemnifying Party the sole conduct of the defense (at the Indemnifying Party’s own expense) to an Indemnity Claim; (c) do not at any time admit liability or otherwise settle, compromise or make other such agreement with regard to the Indemnity Claim without the Indemnifying Party’s prior written consent; and (d) provide assistance as reasonably requested by the Indemnifying Party (at the Indemnifying Party’s expense in respect of the reasonable out-of-pocket expenses of the Indemnified Parties for such assistance).
    • 14.3 Restrictions. An Indemnifying Party shall have no liability in respect of an Indemnity Claim to the extent that the same results from: (a) any use of the Service or Mobile App other than in accordance with the terms of this Agreement; (b) an Indemnity Claim that is the direct result of a breach by the Indemnified Parties of obligations under this Agreement; (c) any modification, configuration or enhancement made to the software or services of the Indemnifying Party other than by such Indemnifying Party (or a third party acting at its direction); and (d) failures by third party internet service providers, cloud services, telecommunications equipment or the like.
    • 14.4 Remedies In the event the Service becomes subject to a third party claim of infringement for which Truepic may be liable, Truepic may, at its own option and expense, take one of the following courses of action: (a) procure the right for Customer to continue using and allowing access to the Service in accordance with this Agreement; (b) make such alterations, modifications or adjustments to the Service so that it becomes non-infringing; (c) replace the Service with a non-infringing substitute; or (d) if Truepic determines that it is not possible or commercially reasonable to exercise any of the foregoing options, then Truepic may terminate this Agreement immediately with no liability to Customer except Truepic shall refund any payments which have been made by Customer in advance which exceed amounts due. The indemnity obligations contained in this Section 14 are the sole and exclusive remedy available to Customer for an allegation of breach by Truepic of third party intellectual property rights.
  14. Limitation of Liability.
    • 15.1 General Limitation of Liability. EXCEPT FOR A BREACH OF THE INTELLECTUAL PROPERTY LICENSES SET FORTH HEREIN, SECTION 9 (CONFIDENTIALITY), OR SECTION 14 (INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR NOT, AND INCLUDING, BUT NOT LIMITED TO, DAMAGE OR LOSS OF PROPERTY, EQUIPMENT, INFORMATION OR DATA; LOSS OF PROFITS, REVENUE, GOODWILL, OR OTHER PECUNIARY LOSS; BUSINESS INTERRUPTION; REGARDLESS OF THEORY OF LIABILITY WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY AT LAW OR IN EQUITY. THESE LIMITATIONS WILL APPLY EVEN IF THE OTHER PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
    • 15.2 EXCEPT FOR A BREACH OF THE INTELLECTUAL PROPERTY LICENSES SET FORTH HEREIN, SECTION 9 (CONFIDENTIALITY), OR SECTION 14 (INDEMNIFICATION), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY DAMAGES THAT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO TRUEPIC UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACTIONS GIVING RISE TO THE CLAIM.
    • 15.3 EITHER PARTY’S LIABILITY FOR AN INTELLECTUAL PROPERTY INDEMNITY CLAIM UNDER SECTION 14, SHALL NOT EXCEED TWO TIMES (2X) THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO TRUEPIC UNDER THIS AGREEMENT, WHICHEVER AMOUNT IS GREATER.
    • 15.4 Third Party Service. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, TRUEPIC SHALL NOT BE RESPONSIBLE FOR ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM OR AS A RESULT OF DEPLOYING INTEGRATIONS WITH THIRD-PARTY SERVICES OR FOR THE ACTIONS OR OMISSIONS OF PROVIDERS OF THIRD-PARTY SERVICES. TRUEPIC RESERVES THE RIGHT TO CEASE TO PROVIDE THIRD PARTY INTEGRATIONS IF CIRCUMSTANCES CHANGE SUCH THAT THIRD-PARTY INTEGRATIONS ARE NO LONGER PERMISSIBLE OR PRACTICABLE.
    • 15.5 The foregoing limitations and exclusions apply to the fullest extent permitted under applicable laws, however, nothing herein is intended to limit or exclude any liability in a way that is not permitted under such laws.
  15. Miscellaneous.
    • 16.1 Assignment Neither party may assign, license, sub-license, or transfer this Agreement or any of its rights hereunder, without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed. Notwithstanding the foregoing, in the event of a sale, merger, acquisition or similar corporate activity, either party may assign its rights and obligations under this Agreement to the successor in interest or title to all or substantially all of that part of the business to which this Agreement relates.
    • 16.2 Successors and Assigns. All references in this Agreement to the parties shall be deemed to include, as applicable, a reference to their respective successors and assigns. The provisions of this Agreement shall be binding on and shall inure to the benefit of the successors and assigns of the parties.
    • 16.3 Notices. Any notice under this Agreement must be in writing and delivered to the other party by personal delivery, overnight mail courier, registered mail, or by email. Notices will be deemed effective if sent to the other party (a) five (5) working days after deposit, if mailed with postage prepaid; (b) upon electronic delivery confirmation if sent by overnight courier; or (c) the same day if sent by email during the receiver’s normal business hours (or the following day if sent after normal business hours).
    • 16.4 Governing Law; Venue. The laws of California without regard to any conflict-of-laws rules shall govern this Agreement, and the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded. The sole jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in San Diego, California, and both parties hereby consent to such jurisdiction and venue.
    • 16.5 Export.Each party agrees to comply all export laws, restrictions, national security controls and regulations of the United States or other applicable national or foreign agency or authority, and not to export or re-export, or allow the export or re-export of any software or other Confidential Information, or any copy or direct product thereof, in violation of any such restrictions, laws or regulations
    • 16.6 Equitable Relief. Notwithstanding anything to the contrary herein, the parties agree that a material breach of this Agreement adversely affecting either party’s intellectual property rights or either party’s rights in Confidential Information may cause irreparable injury to the other party for which monetary damages would not be an adequate remedy and that either party shall be entitled to apply for equitable relief, without the posting of a bond, in addition to any remedies it may have hereunder or at law.
    • 16.7 Severability. If any provision, or part thereof, of this Agreement is held to be invalid or unenforceable, the parties shall use their best efforts to replace such provision by a provision that, to the extent permitted by applicable law, achieves the purposes originally intended. If it cannot be so reformed, it shall be omitted and the balance of this Agreement shall remain valid and unchanged and in full force and effect.
    • 16.8 Independent Contractors. Each party will act at all times as an independent contractor to the other party and will have no right or authority to act on behalf of, create any obligation for, or bind the other party in any way. Nothing in this Agreement will be deemed to create a partnership or joint venture between the parties.
    • 16.9 Attorney’s Fees. In the event of any litigation between the parties hereto, the prevailing party shall be entitled to recover reasonable attorney’s fees in addition to other relief as the court may award.
    • 16.10 Force Majeure. Neither party shall be liable to the other for acts beyond its reasonable control including, but not limited to, acts of God, or public enemy, the acts or failure to act of any governmental authority, civil unrest, acts of civil or military authority, war, embargos, labor disputes, fires, earthquakes, epidemics, floods, unusually severe weather, or shortage or absence of power, without limitation including primary power and failure of backup systems.
    • 16.11 Compliance with Laws. The parties shall at all times comply with laws and regulations and conventions and treaties to which their countries are a party or relating to this agreement and the parties’ performance of this Agreement, including the US Children’s Online Privacy Protection Act, and all other laws and regulations relating to the gathering, handling and dissemination of all data from or concerning End-Users. Each party, at its own expense, shall negotiate and obtain any approval, license or permit required in the performance of its obligations and shall declare, record or take steps to render this Agreement binding, including the recording of this Agreement with any appropriate governmental authorities where required.
    • 16.12 Forms.Pre-printed or standard terms and conditions of any purchase or other ordering document issued by Customer in connection with this Agreement shall be void, and as such shall not be binding on Truepic and shall not be deemed to supersede or replace any terms and conditions hereof or otherwise modify this Agreement, regardless of whether such documents claim to do so.
    • 16.13 Counterparts; Electronic Signatures. This Agreement may be executed in counterparts by emailed pdf, or similar form, each of which shall be an original, and all of which when taken together shall constitute one and the same agreement. Additionally, the parties consent to the use of electronic signatures and agree that electronic signatures appearing on this Agreement are the same as handwritten signatures for all purposes.
    • 16.4 Headings, Captions and Names. The name of this Agreement, and all headings and captions herein contained, are for reference and convenience only and do not define, limit or expand the scope or intent of any provision hereof and shall not be relied upon in or in connection with the construction or interpretation of this Agreement. The words “herein,” “hereunder,” “hereof” and similar terms refer to this entire Agreement and shall not be limited to the specific sections in which they are used.
    • 16.15 Modification. No amendment, change, or modification of this Agreement shall be valid or take effect unless it is in writing, signed by authorized representatives of each of the parties.
    • 16.16 Entire Agreement. This Agreement, along with all exhibits, the Subscription Agreement and Truepic’s Privacy Policy, sets forth the entire agreement between the parties and supersedes any and all prior proposals, agreements and representations between them, whether written or oral. In the event of any conflict in terms and conditions, this Service Agreement will prevail over any Exhibit.

 

 

 

EXHIBIT A

USER CODE OF CONDUCT

Capitalized terms used but not otherwise defined in this Exhibit A shall have the meaning set forth in the Service Agreement. 

In using or accessing the Service, Customer agrees to comply with the following requirements (and shall ensure that its End-Users also comply with them):

  1. not to use the Service in breach of this Service Agreement;
  2. not to “spam” others or “phish” for others’ personal information;
  3. not to disrupt or interfere with the security of, or otherwise abuse, the Service, or any part the Service;
  4. not to create accounts with the Service through unauthorized means, including but not limited to, by using an automated device, script, bot, spider, crawler or scraper.
  5. not to interfere or disrupt the Service or servers or networks connected to the Service, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature.
  6. not to inject content or code or otherwise alter or interfere with the way any TRUPIC page is rendered or displayed in a user’s browser or device.
  7. not to use, frame or utilize framing techniques to enclose any part of the Service without Truepic’s express prior written consent;
  8. not to “deeplink” to the Service without Truepic’s express prior written consent;
  9. not to attempt to obtain unauthorized access to the Service or portions of the Service that are restricted from general access; and
  10. not to use the Service in breach of any third party site’s terms and conditions.

Customer agrees to immediately notify Truepic if Customer suspects illegal, fraudulent or abusive activity, or any activity in violation of this Agreement. If Customer so notifies Truepic, or we otherwise suspect such activity, Customer agree to cooperate with Truepic in any investigation and to use any prevention measures prescribed by Truepic.