Terms Approved: 08/21/2015
Last Revised: 08/21/2015
The TrustMAPP Security Program Management service (“TrustMAPP”) is owned and operated by Secure Digital Solutions, LLC (“Us” “Our” “We”) and hosted in the United States and/or its territories. The following sets forth the terms and conditions for the free trial to use the TrustMAPP Services. PLEASE READ THESE TERMS OF SERVICE (“THE AGREEMENT”) CAREFULLY. BY USING THE ACCLIVITI SERVICE BASED ON A FREE TRIAL, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
1. ACCEPTANCE OF TERMS
If you register for a free trial to use the TrustMAPP Services described below, the user (“You”, “Your”) must agree to the terms of this Agreement. By accessing or using the TrustMAPP Service, You expressly agree to the terms of this Agreement.
2. REPRESENTATION OF AUTHORITY
If You are entering into this Agreement for or on behalf of a company or another party, You represent to Us that You have the authority to bind such company or other party, in which case the references in these terms to “You” or “Your” shall refer to such company or other party. If You do not have the authority to bind said company or other party, or if You do not agree with the terms and conditions of this Agreement, You must not accept this Agreement and may not use the TrustMAPP Service.
“TrustMAPP Service(s)” or “Service(s)” means the business services provided to You under a free trial and made available online by Us as described in this Agreement and associated User Documentation. For purposes of this Agreement, “TrustMAPP Service(s)” exclude consulting services provided by Secure Digital Solutions, LLC, whether or not said consulting services are associated with Your use of TrustMAPP, and the provision of such consulting services is governed by a separate agreement between You and Us.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means these Terms of Service.
“Documentation” means Our online user guides, documentation, and training materials, as updated from time-to-time.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm to TrustMAPP, including, for example, viruses, worms, time bombs and Trojan horses.
“User” means an individual who is authorized by You to use the TrustMAPP Service and to whom You (or We, at Your request) have provided access. Users may include, for example, Your employees, consultants, contractors and agents, and third-parties with which You transact business.
“We,” “Us” or “Our” means Secure Digital Solutions, LLC.
“You” or “Your” means the company or other legal entity for which You are accepting this Agreement.
“Your Data” means electronic data and information submitted by or for You to TrustMAPP or collected and processed by or for You using the TrustMAPP Service.
4. PROVISION OF THE FREE TRIAL
4.1. Free Trial Period. If You register on the Service for a free trial, We will make the Service available to You on a trial basis free of charge. Your ability to access and use the TrustMAPP Service will terminate at the end of the free trial period unless you purchase a subscription to the TrustMAPP Service prior to the expiry date. Additional trial terms and conditions may appear on the trial registration website and any such additional terms and conditions are incorporated into this Agreement by reference and You agree to be bound by them.
4.2. Data Retention Period for Free Trials. WE MAKE NO WARRANTIES WITH RESPECT TO YOUR DATA SUBMITTED IN THE SERVICE. ANY DATA YOU ENTER INTO ACCLIVITI MAY BE PERMANENTLY DELETED UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL BEFORE THE END OF THE TRIAL PERIOD.
4.3. Services Provided “As-Is” for Free Trials. DURING THE FREE TRIAL THE ACCLIVITI SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
5. USE OF THE SERVICE
5.1. Compliance with the Terms. Your rights to use the Service, are subject to and conditioned on Your compliance with all of the terms and conditions of this Agreement, including any terms in any of Our Policies.
5.2. Your Responsibilities. You will:
(a) Be responsible for Users’ compliance with this Agreement;
(b) Be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data;
(c) Prevent unauthorized access to or use of TrustMAPP Services, and notify Us promptly of any such unauthorized access or use;
(d) Use TrustMAPP Services only in accordance with this Agreement and associated User Documentation, applicable laws and government regulations; and
(e) Comply with the terms with which You use the TrustMAPP Services.
You are fully responsible for Your Data, including without limitation for complying with all laws applicable to Your Data. You acknowledge and agree that all Your Data is at your sole responsibility and risk.
You shall assume sole responsibility for:
(a) the selection of the Service and the results you thereby intend to achieve;
(b) the implementation of correction suggestions and any other suggestions or recommendations provided by the Service;
(c) the completeness, accuracy, consistency and quality of Your Data and all other information which originates from You;
(d) the compliance with any third-party property rights or copyrights and privacy rights or any other third-party rights with regard to Your Data and its transfer to Us; and
(e) the infrastructure, software and functional capability of the Internet access used by you.
5.3. Usage Restrictions. You warrant that You will not:
(a) Make the TrustMAPP Service available to, or use the TrustMAPP Service for the benefit of, anyone other than You or Users;
(b) Sell, resell, license, sublicense, distribute, rent or lease the TrustMAPP Service, or include the TrustMAPP Service in a service bureau or outsourcing offering;
(c) Use the TrustMAPP Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
(d) Use the TrustMAPP Service to store or transmit Malicious Code;
(e) Interfere with or disrupt the integrity or performance of the TrustMAPP Service or third-party data contained therein;
(f) Attempt to gain unauthorized access to the TrustMAPP Service or its related systems or networks;
(g) Permit direct or indirect access to or use of the TrustMAPP Service in a way that circumvents a contractual usage limit;
(h) Copy the TrustMAPP Service or any part, feature, function or user interface thereof, or create derivative works of the TrustMAPP Service or any part, feature, function or user interface thereof;
(i) Frame or mirror any part of the TrustMAPP Service, other than framing on Your own intranet(s), extranet(s) or otherwise for Your own internal business purposes or as permitted in this Agreement;
(j) Modify, translate, decompile, bootleg, disassemble, or extract the inner workings of any software constituting part of the TrustMAPP Service, or otherwise attempt to discover the source code of any such software;
(k) Copy the look-and-feel or functionality of the TrustMAPP Service;
(l) Access the TrustMAPP Service in order to build a competitive product or service, or reverse engineer the TrustMAPP Service (to the extent such restriction is permitted by law); or
(m) Use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses the TrustMAPP Service in a manner that sends more request messages to the TrustMAPP Service servers than a human can reasonably produce in the same period of time by using a conventional web browser.
You agree that We may, without prejudice to any other rights available to Us, terminate Your right to use the Service immediately, if You are found to be in violation of this Section 5.3.
6. PROPRIETARY RIGHTS AND LICENSES
6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of Our/their right, title and interest in and to the TrustMAPP Services, including all of Our/their related intellectual property rights. The TrustMAPP Services are licensed, not sold, and You do not acquire any rights of ownership in the TrustMAPP Services. No rights are granted to You hereunder other than as expressly set forth herein.
6.2. License to Use the TrustMAPP Services. Subject to the terms and conditions of this Agreement, We hereby grant to You a personal, non-exclusive, non-transferable, non-sublicensable, revocable, limited license to use the TrustMAPP Services for Your Internal business purposes only, in the manner described in this Agreement and in the Documentation and solely for the free trial term. Upon termination or expiration of the free trial and/or this Agreement for any reason, You must cease all use of the TrustMAPP Services.
6.3. License by You to Host Your Data and Applications. You grant Us a worldwide, limited-term license to host, copy, transmit and display Your Data, as necessary for Us to provide the TrustMAPP Services in accordance with this Agreement. Subject to the limited licenses granted herein (including the rights granted to us in Section 9.4 (Aggregated Data Use) below), We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data.
6.4. License by You to Use Your Feedback. You grant to Us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the TrustMAPP Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the TrustMAPP Services.
6.5 US Government Users. If You are acquiring the right to use the Services on behalf of any unit or agency of the U.S. Government, the following shall apply: Use, duplication, or disclosure of the Services is subject to the restrictions set forth in subparagraphs (c) (1) and (2) of the Commercial Computer Software – Restricted Rights clause at FAR 52.227-19 (JUNE 1987), if applicable, unless being provided to the Department of Defense. If being provided to the Department of Defense, use, duplication, or disclosure of the Services is subject to the restricted rights set forth in subparagraph (c) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (OCT 1988), if applicable. Services and/or the Documentation may or may not include a Restricted Rights notice, or other notice referring specifically to the terms and conditions of this Agreement. The terms and conditions of this Agreement shall continue to apply, but only to the extent that such terms and conditions are not inconsistent with the rights provided to You under the aforementioned provisions of the FAR and DFARS, as applicable to the particular procuring agency and procurement transaction.
7.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) 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. Your Confidential Information includes Your Data; Our Confidential Information includes the TrustMAPP Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third-party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement to any third-party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section.
In particular, You acknowledge that the TrustMAPP Services and the Documentation contain valuable proprietary information and trade secrets and that unauthorized or improper use of the TrustMAPP Services and/or the Documentation will result in irreparable harm to Us for which monetary damages would be inadequate and for which We will be entitled to immediate injunctive relief.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8. DATA PROTECTION
8.1. Relationship of the Parties: To the extent that Your Data contains personal data / personally identifiable information about any individual (“Personal Data”), You acknowledge that We will process that Personal Data only as a data processor acting on behalf of You (You being the data controller) and in accordance with the requirements of this Agreement. We will process the Personal Data in accordance with Your instructions under applicable privacy law(s) and will not assume any responsibility for determining the purposes for which and the manner in which the Personal Data is processed. You warrant to us that you have the right to provide any such Personal Data to us, and we have the right to use the Personal Data for the purposes of providing the TrustMAPP Services; and you have provided all necessary notices to, and obtained all necessary permissions and informed consents from any data subjects to whom the Personal Data relates to, including without limitation in compliance with all applicable privacy and other laws.
8.2. Sensitive Types of Data in Relation to the Service: You agree, on behalf of yourself and Your Users, not to submit to the Service or use the Service to collect, store or process, including not to, directly or indirectly, submit, store, process or include as part of Your Data, any of the following types of sensitive individually identifiable information: (a) social security numbers, passport numbers, driver’s license numbers, taxpayer numbers, or other government-issued identification numbers, (b) Protected Health Information (as defined in the U.S. Health Insurance Portability and Accountability Act of 1996 and regulations thereunder, as amended, “HIPAA”) or similar information under other comparable laws or regulations, or (c) financial account numbers (including without limitation credit or debit card numbers, or any related security codes or passwords, bank account information, or Non-Public Information (as defined in the Gramm-Leach-Bliley Act of 1999, as amended, “GLBA”) or similar information under other comparable laws or regulations. You understand and acknowledge that neither the Service nor the products or systems provided by Us are configured to receive and store such sensitive types of data. You agree that We may terminate this Agreement immediately, if You are found to be in violation of this Section.
8.4. Aggregated Data Use: Notwithstanding what is stated elsewhere in this Agreement, You agree that We may process Your Data and data about You and Your Users to create and compile anonymized, aggregated datasets and/or statistics, provided that such aggregated datasets do not allow the identification of You or individual Users.
8.5. Subprocessing. You authorize Us to subcontract processing of Your Data under this Agreement to a third party provided that: (a) We flow down Our obligations to protect Your Data, to any subcontractor We appoint, so that the data processing terms of the subcontract are no less onerous than the data processing terms set out in this Section 8, and (b) We will remain fully liable to You for the acts, errors and omissions of any subcontractor We appoint to process Your Data, to the same extent that We would be liable Ourselves.
8.6. Data Processing Indemnification. You shall defend, indemnify and hold harmless Us from and against any and all claims, actions, liabilities, losses, damages and expenses which arise from third party claims which arise directly or indirectly out of or in connection with data processing activities under or in connection with this Agreement, including without limitation those arising out of any third party demand, claim or action, or any breach of contract, negligence, fraud, willful misconduct, breach of statutory duty or non-compliance with any part of applicable data protection and/or privacy laws.
8.7. Data Security. We implement reasonable administrative, technical and physical controls to help safeguard the confidentiality, integrity and availability of Your Data. We cannot guarantee data security, however. Neither people nor security controls (including encryption systems) are foolproof. In addition, individuals may commit intentional crimes, make mistakes, or fail to follow policies. If applicable law imposes any non-disclaimable duty (if any), You agree that the standard used to measure our compliance with that duty will be one of intentional misconduct.
9. NO WARRANTY; DISCLAIMERS
9.1. Disclaimers. DURING THE FREE TRIAL, THE SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. WE MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, PERFORMANCE, OR SUITABILITY; ANY WARRANTY RELATING TO ANY THIRD-PARTY PRODUCTS OR THIRD-PARTY SERVICES; ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN CONDUCTING THE SERVICES; OR ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES OR THE RESULTS OF ANY RECOMMENDATION WE MAY MAKE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DISCLAIM ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. WE DO NOT WARRANT THAT THE ACCLIVITI SERVICES MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE ACCLIVITI SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. YOU AGREE THAT WE WILL HAVE NO RESPONSIBILITY (OR RELATED LIABILITY) FOR BACKING UP YOUR DATA OR ANY INFORMATION THAT YOU PROVIDE TO US.
9.2. High-Risk Application Disclaimer. The Services are not designed or intended for use in or for the purposes of hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life-support machines, or any other application in which the failure of the Services could lead directly to death, personal injury, or severe physical or property damage (collectively, “High-Risk Activities”). We expressly disclaim any express or implied warranty of fitness for High-Risk Activities.
10. INDEMNIFICATION BY YOU
10.1. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third-party alleging that Your Data, or Your use of the TrustMAPP Service in breach of this Agreement, infringes or misappropriates such third-party’s intellectual property rights or other rights or violates applicable law (a “Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We:
(a) Promptly give You written notice of the Claim Against Us; and
(c) Give You all reasonable assistance, at Your expense.
Without limiting Your obligation to indemnify in accordance what is stated above, We shall have the right (but no obligation), at Our discretion, to defend and/or reconcile the Claim Against Us alongside You and to participate in all legal and other actions related to the Claim Against Us. You may not settle any Claim Against Us unless it unconditionally releases Us of all liability.
11. LIMITATION OF LIABILITY
11.1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS, CONFIDENTIALITY OBLIGATIONS AND/OR PROPRIETARY INTERESTS RELATING TO THE AGREEMENT, NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
11.2. Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS, CONFIDENTIALITY OBLIGATIONS AND/OR PROPRIETARY INTERESTS RELATING TO THE AGREEMENT, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
12. TERM AND TERMINATION
12.1. Term of Agreement. This Agreement commences on the date You sign up in order to gain access to the Service or otherwise first accept this Agreement and continues until the free trial to use the TrustMAPP Service hereunder has expired or has been terminated.
12.2. Termination. Notwithstanding anything contained in this Agreement to the contrary, during the free trial We may, in our sole discretion, terminate or suspend Your access to and license to use the Service at any time, with or without cause. In no event will we be liable for the removal of or disabling of access to the Service or any part thereof. We may also impose limits on the use of or access to the Service, in any case and without notice or liability.
Upon termination or expiration of this Agreement for any reason all applicable licenses and other rights granted to You will immediately terminate.
12.3. Your Data Deletion. ANY DATA YOU ENTER INTO ACCLIVITI MAY BE PERMANENTLY DELETED UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL BEFORE THE END OF THE TRIAL PERIOD. WE MAKE NO WARRANTIES REGARDING THE AVAILABILITY OF YOUR DATA OR BACKING UP YOUR DATA.
12.4. Surviving Provisions. Sections 6 (Proprietary Rights and Licenses), 7 (Confidentiality), 8 (Data Protection), 9 (No Warranty; Disclaimers), 10 (Indemnification by You), 11 (Limitation of Liability), 12 (Term and Termination), 13 (Notices, Governing Law and Jurisdiction) and 14 (General Provisions) and any other terms that by their nature should survive the termination or expiration of this Agreement will survive any termination or expiration of this Agreement.
13. NOTICES, GOVERNING LAW AND JURISDICTION
13.1. General. Notices to Us should be addressed to:
Secure Digital Solutions, LLC
Attention: Legal Department
1550 Utica Ave
Saint Louis Park, MN 55416
This Agreement shall be governed by and construed in accordance with the laws the United States of America and of the state of Minnesota. The courts of the state of Minnesota shall have exclusive jurisdiction over any such lawsuit arising between the parties.
BOTH PARTIES KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE (TO THE EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT THE PARTIES MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT.
13.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
13.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of legal rules, and to the exclusive jurisdiction of the applicable courts above.
14. GENERAL PROVISIONS
14.1. Export Compliance. The TrustMAPP Services and other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any United States government denied-party list. You shall not permit Users to access or use any Service in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
14.2. Anti-Corruption. You represent and warrant that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will promptly notify Us of same.
14.3 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of the TrustMAPP Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in any documentation provided by You is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement, and (2) any associated User Documentation.
14.4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld). Notwithstanding the aforesaid, We may, upon written notice to You, assign or transfer this Agreement or delegate any rights or obligations hereunder without Your consent to an Affiliate, or in connection with a merger, acquisition, reorganization, sale of all or substantially all of Our assets, or change of control or ownership of Us, provided, however, that if in connection with such an event the assignee is a direct competitor of You, then You may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.6. Third-Party Beneficiaries. Our licensors shall have the benefit of Our rights and protections hereunder with respect to the applicable licensed technology. There are no other third-party beneficiaries under this Agreement.
14.7. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
14.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
14.9. Attorney Fees. You will pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 6.2 (Invoicing and Payment).
14.10. Publicity. Without the prior express written consent of the other party, which consent shall not be unreasonably withheld, a party shall not originate any publicity, news release, technical article, advertising or other announcement, written or oral, whether to the public press or otherwise (each, an “Announcement”), relating to performance under this Agreement or the existence of this Agreement, except where required by law and except that We may publicly announce and otherwise identify (including on Our website(s)) You as being Our customer. If required by law to make any Announcement, a party shall always (a) consult with the other party in connection with such Announcement a reasonable time prior to its release to allow such other party to comment thereon and to prevent its release if so permitted by law; and (b) promptly provide the other party with a copy of the released Announcement and all materials relating thereto.
14.11. Access to TrustMAPP Services by Competitors and Others. Except with Our prior written consent, You may not access TrustMAPP Services if You are Our direct competitor. In addition, You may not, except with Our prior written consent, access TrustMAPP Services for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.
14.12. Changes to this Agreement. We may make changes to this Agreement in the future and, if We do, (i) we will give You notice either by posting the new terms on the Service or by other means, including email and (ii) Your continued use of the TrustMAPP Services will be subject to the terms and conditions of the modified Agreement.