End User License Agreement
THIS END USER LICENSE AGREEMENT IS A LEGALLY BINDING CONTRACT THAT GOVERNS THE ACCESS AND USE OF THE DATATRAILS SERVICE AND ASSOCIATED SERVICES BY ALL USERS, WHETHER IN CONNECTION WITH A FREE TRIAL OR A PAID SUBSCRIPTION.
THIS AGREEMENT INCLUDES A BINDING ARBITRATION PROVISION, CLASS ACTION WAIVER AND TIME LIMIT ON SUBMITTING CLAIMS THAT AFFECT YOUR RIGHTS. BEFORE ACCESSING OR USING THE SERVICES YOU MUST READ THE FOLLOWING AGREEMENT CAREFULLY.
BY ACCESSING OR USING THE DATATRAILS™ SERVICES, YOU (A) ACCEPT THIS AGREEMENT AND AGREE TO BE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF YOU ARE ACCESSING OR USING THE SERVICES ON BEHALF OF A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON THAT ENTITY’S BEHALF. IF YOU CANNOT OR DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, YOU HAVE NO RIGHT TO USE OR ACCESS THE SERVICES.
For the purpose of this Agreement, all capitalized terms shall have the following meanings:
1.1 – “Account” means the DATATRAILS account established by a User when registering to use the Services as set forth in Section 2.1 (Account Creation).
1.2 – “Affiliate” means, with respect to a User or DATATRAILS, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, whereby “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
1.3 – “Agreement” means this End User License Agreement together with the Order Form and all other terms, conditions, or policies specifically incorporated herein.
1.4 – “API” means the application programming interfaces developed, made available and enabled by DATATRAILS that permit Users to access certain functionalities of the Services.
1.5 – “Applicable Law” means the laws, regulations, and rules of the governmental or regulatory authorities that apply to the User or DATATRAILS.
1.6 – “Authorized User” or “User” means the individual authorized to access or use the Services pursuant to this Agreement in accordance with the permissions set forth in the Order Form and Service Plan. The terms “you,” and “your” as used in this Agreement refer to the User.
1.7 – “Confidential Information” means all information disclosed by one party to the other which is in tangible form and designated as confidential or is information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, the terms of this Agreement, Service Data, personal identifying information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party from a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the parties; or (d) was or is independently developed by the receiving party without the use of the disclosing party’s Confidential Information.
1.8 – “Cookie Statement” means DATATRAILS’s policy regarding the use and User options for cookies while using the Sites or Services, available at Cookie Statement and incorporated herein.
1.9 – “Documentation” means any user manuals, technical manuals, online instructions, and any other materials we provide, in printed, electronic, or other form, that describe the installation, operation, access, use, or technical specifications of the Services, Software, or Service Plan, as applicable.
1.10 – “Feedback” means any concepts, enhancement requests, ideas, materials, processes, recommendations, suggestions, or techniques that you provide to us regarding the Services, Software, Documentation, and/or APIs, but excludes your Service Data.
1.11 “Instaproof” means a publicly available service provided by DATATRAILS and available at https://app.datatrails.ai/instaproof (or a successor site), by which visitors to the Instaproof site can query whether a data asset corresponds to Public Metadata stored with DATATRAILS.
1.12 “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.13 – “DATATRAILS” means DATATRAILS, Inc., together with its parents, subsidiaries, Affiliates and assigns, which owns all rights to and in the Services. The terms “we,” “us” and “our” as used in this Agreement refer to DATATRAILS.
1.14 – “Open Source Resource” means any code, software, programming, scripts, tools, modules, libraries, components, and other items with either freely obtainable source code, license for modification, or permission for free distribution, or that are otherwise distributed pursuant to any license listed by the Open Source Initiative at www.opensource.org/licenses, or any other license that substantially conforms to the Open Source Definition at http://opensource.org/osd, including without limitation the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), GNU Affero General Public License (AGPL), MIT License (MIT), Apache License, Artistic License and BSD Licenses.
1.15 – “Order Form” means the document or webform that the User completes to gain access to the Services, which may detail, among other things, inclusions and limitations to the Services and applicable fees in accordance with the Service Plan selected.
1.17 – “Private Metadata” means the metadata generated by your use of the DATATRAILS Services to which you restrict access by virtue of settings you select when generating such metadata.
1.18 “Public Metadata” means the metadata generated by your use of the DATATRAILS Services that you release to the public domain by virtue of settings you select when generating such metadata.
1.19 “Services” means the DATATRAILS products and services provided by DATATRAILS or any of our Affiliates, as may be applicable, upon completion of an Order Form whether on a free trial or paid basis, including, individually and collectively, the Software, all updates, API, Documentation, and all other products, services and features that may be available now or in the future through the Services.
1.20 – “Service Data” means all electronic data, including any audio, video, text, messages, communications or other materials you submit, enter, transmit or store as part of your use of the Services. Service Data excludes Feedback, Usage Data, and Public Metadata.
1.21 – “Service Plan” means the specific features and use limits of the Services allotted to a User as indicated in the Order Form.
1.22 – “Software” means the software provided by DATATRAILS, either by download or by access through the internet, that allows Users to access and use the Services.
1.23 – “Taxes” means any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes.
1.24 – “Usage Data” means any statistical and analytical data that is derived from a User’s use of the Services, which includes (without limitation) (a) data such as volumes, frequencies, bounce rates and performance data, and (b) subject to any restrictions under applicable laws, data that is anonymized, de-identified, and/or aggregated such that it could no longer directly or indirectly identify you, a User or any natural person. Usage Data does not include and is not derived from Service Data.
1.25 “Verified Domain Name” or “VDN” means a domain name that DATATRAILS has confirmed as being registered to the same User as the holder of the Account as set forth in Section 3.6.
1.26 – “Websites” or “Sites” means the websites located at https://DataTrails.ai, https://DataTrails.co as well as any and all other applications, platforms, and social media profiles owned or operated by DATATRAILS, including each of their respective mobile applications, together with the content and materials contained in, or otherwise made accessible through, the Sites.
2. Access to Services
2.1 – Account Creation
To access or use the Services, you will be asked to create an Account by either setting a username and password or by using a single-sign in from a third-party identity provider that is integrated with the Services. When creating an Account, you must use your personal information. Only one individual may use any Account. You agree that you will provide true, accurate, current, and complete information about yourself when creating your Account. It is your responsibility to maintain your Account information true, accurate, current, and complete after you create your Account. If you breach this Agreement, including, without limitation, any payment obligations, you are strictly prohibited from creating new Accounts until you remedy such breach to the satisfaction of DATATRAILS. It is also your responsibility to manage the security of your Account, including safely storing your password. You will not have the ability to modify your personal Account information through the Services, and DATATRAILS will not have the ability to access or edit your Account information once your Account has been created.
2.2 – Limited License
Upon creation of an Account and the selection of a Service Plan on the Order Form, DATATRAILS will grant you a non-exclusive, non-transferable, non-sublicensable limited license to access and use the Services in accordance with your Service Plan and any Documentation. We will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except during any planned downtime or a force majeure event.
2.3 – Customer Support
Only paid Service Plans will include access to customer support. You may upgrade your Service Plan to a paid Service Plan if you desire customer support by selecting a new Service Plan on the Order Form where available, or contacting DATATRAILS at sales@DATATRAILS.ai.
2.4 – Modifications
You acknowledge that DATATRAILS may modify the features and functionality of the Services at any time. We shall use our best efforts to provide you with commercially reasonable advance notice of any deprecation of any material feature or functionality.
2.5 – System Requirements
A high-speed Internet connection is required to access and use the Services. You are responsible for procuring and maintaining the network connections that connect your network to the Services including, but not limited to, browser software that supports the protocols and functionalities used by DATATRAILS in the provisioning of the Services. We are not responsible for notifying you of any upgrades, fixes or enhancements to any such Software or for any compromise of data transmitted across computer networks or telecommunications facilities (including but not limited to the Internet). We assume no responsibility for the reliability or performance of any connections as described in this Section.
3. Use of Services
3.1 – Compliance
Your limited right to use the Services is contingent on your strict compliance with this Agreement. You are responsible for your strict compliance with the terms and conditions of this Agreement, and for any and all activities that occur under or that are associated with your Account. You are also solely responsible for ensuring that your use of the Services complies with all Applicable Laws. We will not be liable for any loss or damage arising from unauthorized use of your Account.
3.2 – Accuracy of Service Data
You are responsible for the quality, integrity and accuracy of all data and information entered or otherwise made available by your use of the Services. You are responsible for owning or having all necessary rights to any Service Data that you enter or make available by your use of the Services. DATATRAILS makes no guarantees and takes no responsibility for the quality, integrity or accuracy of the Service Data you enter during your use of the Services, and expressly disclaims any liability that may result from inaccurate, corrupt, unauthorized or poor-quality Service Data. To the extent technically possible, DATATRAILS reserves the right, but not the obligation, to remove or unpublish any Service Data from the Services that DATATRAILS determines or reasonably believes infringes any third party intellectual property right, privacy or publicity right, is defamatory or libelous, violates any Applicable Law, or that would expose DATATRAILS or its Affiliates to liability or harm.
3.3 – Prohibited Content
You agree not to (a) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (b) attempt to bypass or break any security or rate limiting mechanism on any of the Services or use the Services in any manner that interferes with or disrupts the integrity, security or performance of the Services and its components; (c) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services; (d) license, sublicense, sell, outsource, rent, lease, transfer, assign, distribute, time-share, commercially exploit or resell the Services, or otherwise make available the Services to third parties without express written consent from DATATRAILS; (e) use the Services in breach of this Agreement, Order Form, Service Plan, Documentation, in contravention of Applicable Laws, or in any other way that would be considered dangerous, menacing, inappropriate or unlawful; (f) to the extent you are subject to the US Health Insurance Portability and Accountability Act of 1996, and its implementing regulations (HIPAA), use the Services to store or transmit any “protected health information” as defined by HIPAA, unless expressly agreed to otherwise in writing by DATATRAILS; or (g) to the extent that your use of the Services is subject to any special or industry-specific law or regulation, use the Services to store or transmit information that would circumvent or otherwise conflict with any obligation or requirement under such law or regulation.
3.4 – Suspension or Revocation
3.5 – Use of Open Source Resources
3.6 – Verified Domain Names
A User may choose to distribute or make available to recipients certain Service Data that such User submitted to the Services. Such Service Data may be submitted to the Services from some other domain associated with that User. Similarly, a User may create Public or Private Metadata from some other domain associated with such User. When a recipient receives access to such Service Data through the Services, the domain URL from which the Service Data was received is displayed to the recipient. Similarly, when a recipient accesses Public or Private Metadata, the domain URL from which that Public or Private Metadata was created may be displayed to the recipient. DATATRAILS will display a “Verified” or “Verified Organization” icon adjacent to the domain if the User has submitted to DATATRAILS, and DATATRAILS has confirmed to DATATRAILS’s reasonable satisfaction that the domain registration information received matches the User information DATATRAILS received from the User in connection with the User establishing and maintaining their Account. A User that has verified its domain may be referred to as a “Verified Organization.” Users are obligated to provide and maintain true, accurate, current, and complete domain information, and such domain information shall be deemed Account information subject to the same obligations as set forth in Section 2.1. Other than confirming that the domain registration information and the Account information match, DATATRAILS has not performed any other review or diligence upon the domain or the Service Data. Users who receive Service Data (i.e., recipients) are solely responsible for assessing and evaluating the Service Data sent or made available to them, including the source of such Service Data including any domain. DATATRAILS reserves the right, but not obligation, to suspend or revoke the “Verified” status of any domain in its sole discretion, including if DATATRAILS determines or reasonably suspects that any domain information is not true, accurate, current or correct.
3.7 – Provenance Data
A User may create a provenance record using the Services through directly connecting the Service to the User’s system, or by implementing a connection between the Services and an DATATRAILS-supported, third-party application connection (e.g., Dropbox).
To create the provenance record, one or more cryptographic hash(es) of the desired data asset is created within the User’s environment and those cryptographic hash(es) are transmitted via the connection to the Services to generate provenance metadata, along with any additional provenance metadata that the User chooses to provide. The User selects whether the provenance metadata will be Private Metadata or Public Metadata by configuring their program settings. The User is solely responsible for selecting whether the provenance metadata will be Public Metadata or Private Metadata, and DATATRAILS, its Affiliates and third-party service providers have no responsibility or liability for the User’s selection. If the User selects to generate Private Metadata, then, aside from DATATRAILS itself, that Private Metadata will only be accessible by other DATATRAILS Account holders to whom the User has enabled access. By creating Private Metadata, the User grants DATATRAILS a perpetual, irrevocable, non-exclusive license to use, process, copy, display (solely as permitted herein) such private metadata for purposes of the Services and DATATRAILS’s business use. In contrast, if the User chooses to generate Public Metadata, then that provenance metadata will become part of the public domain, be readily available and searchable via the internet and may be accessed without requiring an DATATRAILS Account.
Whether the User chooses to create Public Metadata or Private Metadata has no bearing on whether the User makes the associated data asset publicly available, or maintains limited or private access to such data asset. That is, a private data asset may have either Public Metadata or Private Metadata. For private data assets associated with Public Metadata, a party finding such Public Metadata may request access to the associated data asset from the User, but that party will not be able to access the data asset unless the User grants the party access thereto.
Whether creating Public Metadata or Private Metadata, the User may choose to retain the data asset within the User’s environment (in which case, the data asset is not communicated or transmitted to DATATRAILS), or to include the data asset as part of the provenance record (in which case, the data asset is communicated to DATATRAILS and becomes part of the provenance metadata and subject to the same licenses and/or grants of rights detailed above as to the provenance metadata itself).
3.8 – Instaproof
For data assets for which Public Metadata has been created, any recipient of that data asset may check its provenance using Instaproof. By dragging and dropping the data asset onto the Instaproof site one or more cryptographic hashes of that data asset are generated on the recipient’s device and submitted to Instaproof along with other information such as file type and size to query the Public Metadata stored with DATATRAILS. If the query matches Public Metadata stored with DATATRAILS, that corresponding Public Metadata will be displayed to the recipient. DATATRAILS does not receive or gain access to the data asset through the recipient’s use of Instaproof. Instead, DATATRAILS receives only the cryptographic hash(es) thereof and other information submitted therewith.
4. Fees and Payments
4.1 – Fees
You agree to pay any applicable fees in accordance with the Service Plan you select on an Order Form.
4.2 – Upgrades and Downgrades
You may upgrade your Service Plan at any time by contacting us at the contact at sales@DataTrails.ai, or directly through the portal on the Order Form. Any upgrades will begin immediately upon approval and fees will be prorated in accordance with the remaining amount of time on the current term of your Service Plan. To downgrade your Service Plan, you must contact sales@DataTrails.ai at least thirty (30) days prior to the end of the current term of your Service Plan. Downgrading your Service Plan may cause loss of content, features, or capacity of the Service as available to you through your Account, and DATATRAILS is not responsible and expressly disclaims any liability for such loss.
4.3 – Taxes
Any applicable fees are exclusive of Taxes, and you agree to pay any Taxes associated with your Service Plan, excluding any taxes based on our net income, property, or employees. If you are required by applicable law to withhold any Taxes from payments owed to us, you will reduce or eliminate such withheld Taxes upon receipt of the appropriate tax certificate or document provided by us. You will provide us with proof of payment of any withheld Taxes to the appropriate authority. Taxes will be shown as a separate line item on an invoice.
4.4 – Payment Terms
Any applicable fees are non-cancelable and non-refundable and due upon invoicing. If you are registered for a paid Service Plan, you will be sent an invoice each month via email to the email address you designate in your Account. You will pay any and all fees, surcharges and taxes shown on an invoice within thirty (30) days of the date of the invoice by the method indicated on the invoice. If you fail to pay any amount of an invoice, and fail to remedy such failure within fifteen (15) days of the date we provide you with written notice of the same, we may (a) asses a late fee of the lesser of 1.5% per month or the maximum amount allowable by applicable law, (b) temporarily suspend the Services to all of your invoices are paid in full, and, or (c) permanently revoke your right to use the Services. If we suspend or permanently revoke your rights to the Services pursuant to this Section, we will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you may incur in connection with any such suspension.
4.5 – Payment Disputes
You may dispute a payment by notifying us by e-mail at accounting@DATATRAILS.ai as to the nature of the dispute within fifteen (15) days of the disputed invoice date.
5. Term and Termination
5.1 – Term
The term of this Agreement will begin when you select a Service Plan on an Order Form or through your Account, and will continue until you cancel your Account, or it is otherwise terminated in accordance with the terms of this Agreement.
5.2 – Termination
Notwithstanding DATATRAILS’s right to suspend or permanently revoke your right to access or use the Services under Section 3.4 of this Agreement, either party may terminate this Agreement, your Account and, or, your Service Plan for any reason upon thirty (30) days written notice to the other party.
5.3 – Dormancy
If you register for an Account but fail to access or use the Services for twelve (12) consecutive months, we reserve the right and may automatically terminate your Account for dormancy.
5.4 – Effect of Termination on Fees
If you terminate your Service Plan or otherwise cancel your Account prior to the end of the term, or if we terminate or permanently revoke your right to use or access the Services under Section 3.4, you must immediately pay any and all unpaid fees associated with the remainder of the term as well as all other fees and or charges associated with your use of the Services. There are no refunds.
5.5 – Effect of Termination on Service Data
Upon your written request, we will make your Service Data available to you for export or download for thirty (30) days after the effective date of termination, expiration or cancellation of your Account, unless we have suspended or terminated your Account under Section 3.4, in which case you shall have no right to request and we shall have no obligation to provide you with your data for download. We have no obligation to maintain or provide any Service Data after the thirty (30) day download period, and unless prohibited by law or legal order, we may, but shall not be required to, delete your Service Data following the termination or cancellation of your Account.
6. Ownership, Service Data, and Confidentiality
6.1 – Ownership
6.2 – No Additional Rights
The access and use rights granted to you under this Agreement do not convey any additional rights in the Services or in any Intellectual Property Rights of DATATRAILS or any of our Affiliates that may be associated therewith. Subject only to your limited license to access and use the Services as expressly stated herein, all rights, title and interest in and to the Services, the Documentation, our Confidential Information, any Intellectual Property Rights associated with DATATRAILS products including the Software and the Services, including all related Intellectual Property Rights, will remain with DATATRAILS and belong exclusively to DATATRAILS.
6.3 – Service Data
6.4 – No Sale of Service Data
6.5 – Feedback
By using the Services, you agree to grant DATATRAILS and its Affiliates a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, adapt, distribute, display, perform, commercially exploit, incorporate into the Services or otherwise use any Feedback that you, or any third parties acting on your behalf, submits to us in any way. We also reserve and you agree that we shall have the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated using such Feedback and that we shall own all right, title and interest in and to such features, functionality and components.
6.6 – Third Party Service Providers
6.7 – Use and Disclosure of Confidential Information
Except as otherwise authorized by the disclosing party in writing, the receiving party will not (a) use any Confidential Information of the disclosing party for any purpose outside of exercising the receiving party’s rights or fulfilling its obligations under this Agreement, and (b) disclose or make Confidential Information of disclosing party available to any party, except to its, its Affiliates’, and their respective employees, legal counsel, accountants, contractors, or subcontractors who have a “need to know” as necessary for the receiving party to exercise its rights or fulfill its obligations under this Agreement. The receiving party is responsible for its compliance with this Section 6.7, including ensuring that any other party that is authorized to receive such Confidential Information will be legally bound to protect it under terms at least as protective as the those in this Agreement. The receiving party will protect the confidentiality of Confidential Information disclosing party using the same degree of care that it uses to protect the confidentiality of its own confidential information but in no event less than reasonable care.
6.8 – Compelled Disclosure
The receiving party may disclose Confidential Information if required pursuant to Applicable Law, including any subpoena, or court order, provided the disclosing party is given notice of such required disclosure (to the extent legally permitted). The receiving party will reasonably cooperate in connection with any such required disclosure at the disclosing party’s sole expense.
6.9 – Safeguards and Privacy Practices
6.10 – End User Data
To the extent that DATATRAILS processes any personal information of User’s end users or employees in connection with the provision of the Services, DATATRAILS acts as a service provider (or processor), and User is fully responsible for ensuring that it complies with all notice and transparency requirements under applicable laws. To the extent that such end users or employees wishes to exercise their data protection rights with respect to such personal information, User shall be fully responsible; provided that DATATRAILS will promptly forward to User any such requests and shall reasonably assist User in fulfilling its obligations with respect thereto.
7. Warranties and Disclaimers
7.1 – Mutual Representations
Each party represents and warrants to the other that (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery or performance of this Agreement; and (c) the execution, delivery and performance of the Agreement does not and will not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
7.2 – Truthful Account Information and Service Data
You represent and warrant that you have provided, and will continue to provide, adequate notices and have obtained, and will continue to obtain, the necessary permissions, authorizations and consents for all information and Service Data you provide during your use of the Services. You represent and warrant that you own or have all necessary rights, licenses, authorizations, permissions and consents in and to the Service Data to provide such Service Data to DATATRAILS as set forth in this Agreement and, to the extent you choose, for DATATRAILS to distribute the Service Data on your behalf.
7.4 – Service Warranty
We represent and warrant that the Services perform materially in accordance with the applicable Documentation. Our sole obligation, and your sole and exclusive remedy, in the event of any failure by us to comply with this Section will be for us to, at our option, (a) remediate any material non-conformity or (b) refund to you any fees that you actually paid for the time period during which the affected Services do not comply with this Section.
7.5 – Third-Party Tools and Links
7.6 – Disclaimers
EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 7.4, THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. AS TO ANY VERIFIED DOMAIN NAME, YOU ACKNOWLEDGE THAT WHILE WE WILL CONFIRM THE INFORMATION MATCHES ACCOUNT INFORMATION RECEIVED, WE MAY NOT BE ABLE TO, AND DISCLAIM RESPONSIBILITY FOR CONFIRMING THE ACCURACY AND COMPLETENESS OF THE DOMAIN INFORMATION PROVIDED TO US. AS TO ANY PROVENANCE DATA, YOU ACKNOWLEDGE AND AGREE THAT SUCH PROVENCANCE DATA CONFIRMS ONLY THAT THE PARTY IDENTIFIED BY DATATRAILS SUBMITTED THE DATA ASSET TO THE SERVICE, AND NOT THAT DATATRAILS HAS CONFIRMED THAT SUCH PARTY WAS THE AUTHOR OR CREATOR OF SUCH DATA ASSET OR THAT SUCH PARTY HOLDS ALL RIGHTS, TITLE AND INTEREST IN OR TO SUCH DATA ASSET AND THAT SUCH PARTY HAS ALL NECESSARY AUTHORIZATIONS, CONSENTS AND PERMISSIONS FOR SUCH DATA ASSET.
WE ADDITIONALLY DISCLAIM ALL WARRANTIES RELATED TO THIRD PARTY TOOLS, LINKS, SERVICES, AND TELECOMMUNICATIONS PROVIDERS. YOU ACKNOWLEDGE AND AGREE THAT WE HAVE NO CONTROL OVER THIRD PARTY TOOLS, LINKS OR SERVICES, OR ANY MATERIAL CONTAINED THEREIN, NOR DO WE HAVE ANY CONTROL OVER THE INTERNET. THE INTERNET AND TELECOMMUNICATIONS PROVIDER NETWORKS ARE INHERENTLY INSECURE. ACCORDINGLY, YOU AGREE WE ARE NOT LIABLE FOR ANY CHANGES TO, INTERCEPTION OF, OR LOSS OF DATA WHILE USING THIRD PARTY TOOLS, LINKS OR SERVICES, OR IN TRANSIT VIA THE INTERNET OR A TELECOMMUNICATIONS PROVIDER NETWORK, AND EXPRESSLY WAIVE ALL CLAIMS FOR DAMAGES OR LOSS THAT MAY RESULT FROM ANY SUCH THIRD-PARTY TOOLS, LINKS, SERVICES, NETWORKS, OR THE INTERNET.
8.1 – DATATRAILS’s Obligations
We will indemnify and defend you from and against any third-party claim brought against you for your authorized use of the Services alleging that such Services infringe or misappropriate a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). We shall, at our expense, defend such IP Claim and pay damages finally awarded against you in connection therewith, including the reasonable fees and expenses of the attorneys engaged by DATATRAILS for such defense, provided that (a) you promptly notify DATATRAILS of the threat or notice of such IP Claim; (b) we will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such IP Claim; (c) you fully cooperate with us in connection therewith; and (d) no such claim can be attributed to the Service Data or Account information that you entered while using the Services. Additionally, If our provision of the Services has become, or in our opinion is likely to become, the subject of any IP Claim, we may at our option and expense: (a) procure the right to continue providing the Services as set forth in this Agreement; (b) modify the Services to make them non-infringing; or (c) if the foregoing options are not reasonably practicable, terminate this Agreement, or, if applicable, terminate the Services that are the subject of any IP Claim, and refund you any unused pre-paid fees.
8.2 – Your Obligations
You will indemnify, defend and hold DATATRAILS, including its Affiliates, agents, employees, shareholders, directors, and assigns, harmless against any claim brought by a third party against DATATRAILS or its Affiliates (a) arising from or related to your use of Services (not from or related to the Service itself) in breach of this Agreement, including as arises in connection with any Account information; or (b) alleging that your use of the Services or any account information or Service Data infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret, privacy, publicity or other proprietary right; provided that (i) we promptly notify you of the threat or notice of such claim; (ii) we will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such at your sole expense; and (iii) we fully cooperate with you in connection therewith.
9. Liability Limits
9.1 – Damages
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AFFILIATE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (WHERE SUCH DATA IS LOST IN THE COURSE OF TRANSMISSION VIA YOUR SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF DATATRAILS), BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY OTHER TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR FOR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANY AFFILIATE IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR PROFESSIONAL SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
9.2 – Amounts
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DATATRAILS’S AGGREGATE LIABILITY TO YOU, ANY AFFILIATE, OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR THE SERVICES SHALL IN NO EVENT EXCEED THE GREATER OF THE TOTAL OF ANY FEES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, OR $100. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES AND CONSULTING FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THIS AGREEMENT. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN WILL APPLY IN AGGREGATE TO ANY AND ALL CLAIMS BY THE USER AND ITS AFFILIATES AND SHALL NOT BE CUMULATIVE; NOR SHALL IT APPLY TO YOUR BREACH OF THIS AGREEMENT OR YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.
10. Party Relationships
10.1 – Independent Contractors
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
10.2 – U.S. Federal Government Users
If You are a U.S. federal government department or agency or contracting on behalf of such department or agency, the Services are a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services are licensed to you with only the rights as provided under this Agreement.
11. Dispute Resolution
11.1 – Binding Arbitration
YOU UNDERSTAND AND AGREE THAT ALL CLAIMS, DISAGREEMENTS, DISPUTES OR CONTROVERSIES BETWEEN YOU AND DATATRAILS, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, OR ASSIGNS HAVE IN CONNECTION WITH OR RELATED TO THE USE OR ACCESS OF THE SERVICES OR THIS AGREEMENT SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION, WHICH MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES. THE ARBITRATION SHALL TAKE PLACE IN SANTA CLARA COUNTY, CALIFORNIA. THE ARBITRATION SHALL BE ADMINISTERED BY AAA IN ACCORDANCE WITH TITLE 9 OF THE U.S. CODE (UNITED STATES ARBITRATION ACT) UNDER THE AAA’S COMMERCIAL DISPUTE RESOLUTION PROCEDURES AS SUPPLEMENTED BY THE SUPPLEMENTARY PROCEDURES FOR CONSUMER-RELATED DISPUTES (AND AS STATED THEREIN, IF THERE IS A DIFFERENCE BETWEEN THE COMMERCIAL DISPUTE RESOLUTION PROCEDURES AND THE SUPPLEMENTARY PROCEDURES, THE SUPPLEMENTARY PROCEDURES WILL BE USED). YOU AND WE VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT TO A JURY TRIAL.
11.2 – No Class Action
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE AGREE THAT ANY AND ALL DISPUTES, CLAIMS AND CAUSES OF ACTION YOU OR WE MAY HAVE IN CONNECTION WITH OR RELATED TO THE USE OR ACCESS TO THE SERVICES WILL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS ACTION. NEITHER YOU NOR WE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER USERS OR ARBITRATE, AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY, ANY CLAIM, DISPUTE OR CAUSE OF ACTION IN CONNECTION WITH OR RELATED TO THE USE OR ACCESS OF THE SERVICES OR THIS AGREEMENT.
11.3 – Governing Law
This Agreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. You expressly agree to submit to the personal jurisdiction of any court of competent jurisdiction for the enforcement of an arbitral award.
12.1 – Notices
All notices shall be delivered in writing by (a) nationally recognized overnight delivery service or U.S. mail; or (b) electronic mail, addressed to the contacts provided below. Notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if otherwise delivered upon the earlier of receipt or two (2) business days after being deposited in the mail as permitted above.
The address and e-mail you provided in your Account or on an Order Form.
DATATRAILS, Inc., Attn: Legal Team
5201 Great America Parkway Suite #320
Santa Clara, CA 95054
United States of America
12.2 – Severability
If any provision in this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, such provision shall be modified and interpreted so as to best accomplish the original purpose of the provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.3 – Assignment
You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of your rights or obligations under this Agreement without DATATRAILS’s written prior consent, which consent will not be unreasonably withheld. We may assign this Agreement to any Affiliate or other entity in connection with a merger or change of control of DATATRAILS or the sale of all or substantially all of our assets, provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
12.4 – Amendment and Waiver
DATATRAILS reserves the right to amend this Agreement from time to time, in which case the newest version will supersede all prior versions. We will notify You not less than five (5) days prior to the effective date of any such amendment and your continued use of the Services following the effective date of any such amendment shall be considered your express consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
12.5 – Export and Compliance Restrictions
The Services, including any Software and derivatives thereof, may be subject to export controls and economic sanctions laws and regulations of the United States and other jurisdictions. You agree to comply with all such laws and regulations as they relate to your access and use of the Services. You represent that you are not named on any U.S. government restricted-party list, and you will not nor permit anyone else to access or use the Services in a U.S.-embargoed country or region as listed on the U.S. Department of State website or for any prohibited end use.
12.6 – Force Majeure Events
No failure, delay, or default in performance of any obligation of a party will constitute an event of default or breach of this Agreement to the extent that such failure to perform, delay, or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil, or military authority, fire, strike, lockout, or other labor dispute, flood, terrorist act, war, riot, theft, earthquake, or other natural disaster. The party affected by such cause will take all reasonable actions to minimize the consequences of such cause.
12.7 – Entire Agreement