Last Updated: January 25, 2018
The following Trovata Terms of Service (the ” Agreement “) will govern your use of the Services, as defined below, and are entered into between Trovata, Inc. (” Trovata “), a business located at 12671 High Bluff Dr, San Diego, CA 92130, and the business you represent (” you ” or ” your “). This Agreement takes effect when you click the check box linking to this Agreement at the time you create a Trovata Account, as defined below, or otherwise access or use the Services, as defined below. By clicking the check box linking to this Agreement, you represent and warrant that (a) you are lawfully able to enter into contracts (e.g., you are not a minor), (b) you have legal authority to bind the entity that you represent, and (c) you have read, understood, and hereby agree to this Agreement.
THE SERVICES (INCLUDING THE MOBILE APP) PROVIDED HEREUNDER ARE BETA VERSIONS AND ARE BELIEVED TO CONTAIN DEFECTS AND WE PROVIDE NO ASSURANCE THAT DEFECTS WILL BE CORRECTED IN A TIMELY MANNER OR AT ALL. A PRIMARY PURPOSE OF THIS AGREEMENT IS TO OBTAIN FEEDBACK ON SERVICES PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. YOU ARE ADVISED TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE SERVICES AND/OR ACCOMPANYING MATERIALS. NOTWITHSTANDING SECTION 2, THERE ARE NO FEES FOR USE OF THE BETA VERSION OF THE SERVICES.
1. Trovata Services and Set-up
- Services. Trovata provides to the enterprise a cloud-based, web and mobile platform for cash visibility, positioning, & forecasting that automates manual tasks and provides value business performance insights, as further described at http://www.trovata.io (including the websites and mobile apps used to access such services, the ” Services “). As part of the Services, you may download Trovata’s mobile app (” Mobile App “) from Apple’s App Store and use the Mobile App solely for accessing your Trovata Account (defined below).
- Account Setup. When you set up an account (” Trovata Account “) to use the Services, you will be required to choose, a password and user ID, and will be required to provide other registration information (collectively, ” Registration Information “). You agree and represent that all Registration Information provided by you is accurate and up-to-date. If any of your Registration Information changes, you must update it in your Trovata Account. If Trovata believes that the Registration Information you provide is not correct, current, or complete, Trovata reserves the right to refuse you access to the Services, and to terminate or suspend your Trovata Account at any time. However, Trovata has no obligation to verify the accuracy, currency, completeness, or usefulness of any Registration Information that you have provided.
- Trovata Account Credentials. You understand that you are responsible for maintaining the confidentiality of the username, password and any other authentication credentials required to access your Trovata Account and those of any users you authorize under your Trovata Account, and you are fully responsible for all activities that occur under your Trovata Account, including the purchase of any of the Services. You agree (a) to immediately notify Trovata if you suspect any unauthorized use of your Trovata Account (including usernames, passwords or any other authentication credentials) or any other breach of security, (b) to ensure that you exit from your Trovata Account at the end of each session, (c) not to share any username, password or any other authentication credentials with any other user or use the username, password or any other authentication credentials of any other user, and (d) to use particular caution when accessing your Trovata Account from a public or shared computer so that others are not able to view or record your password or other personal information. You acknowledge that Trovata is not responsible for any loss or damage arising from the theft or misappropriation of any username, password or other authentication credentials. Trovata recommends that you use strong passwords for your Trovata Account, never use the same password on multiple sites or services, and change your password frequently. You are directly responsible to Trovata for any users you authorize under your Trovata Account.
- Financial Account Linkage. In order to use the Services, you will be required to link at least one of your financial accounts to the Services. In order to link a financial account, you agree to provide true, accurate, current and complete information about yourself and your accounts maintained at financial institutions, including without limitation passwords, usernames, PINs and other necessary information to access your accounts (collectively, ” Financial Account Information “), you agree to not misrepresent your identity or your Financial Account Information, and you represent and warrant that you are authorized to provide Financial Account Information to us and link your financial accounts to the Services. By linking a financial account to the Services, you authorize Trovata and its service providers (” Service Providers “) to periodically access third party sites designated by you, on your behalf, to retrieve balance, transaction and other information (” Account Data “) to provide you with the Services you have purchased. We have no liability or other responsibility for inaccuracy or incompleteness, or your inability to use the Services due to such inaccuracy or incompleteness. You are responsible for the consequences of any instructions you provide us and that we follow. We make no representation, warranty or guarantee that accounts at all financial institutions are available for linkage to the Services because not all financial institutions allow accounts linkage, and financial institutions may discontinue allowing financial account linkage after you have started using the Services. We will have no liability for lack of ability to link your accounts at all of your financial institutions to the Services.
2. Fees and Payment
- Election and Fees. The fees for the Services are set forth on the Trovata fees page (” Fees Page “), which is incorporated into and made a part of this Agreement, or in a separate written agreement between you and Trovata. You agree to pay Trovata the fees indicated for the Services plan you select. Fees will be charged to your Payment Method on the day your Services plan selection goes into effect and will cover fees for your Services plan selection for the period indicated. Thereafter, your selected Services plan will automatically renew for successive terms and the applicable fees will continue to be charged to your Payment Method on a recurring basis until you cancel or change your Services plan selection, and you hereby authorize Trovata to charge your Payment Method for such recurring charges. The amount of the recurring charge will be the then-current fee applicable to the Services plan and term you selected. You acknowledge that the amount of the recurring charge may increase if the applicable fee increases. You may upgrade, downgrade or cancel your Services plan selection at any time. Plan downgrades or cancellations will take effect only at the end of your current term and must be made at least 3 business days prior to your next renewal in order to avoid billing of the next renewal period’s fees at the prior rate. Services upgrades will take effect immediately and you will be charged a prorated fee for the remainder of your current term based on the difference in price between your current plan and the upgraded plan. Stated fees do not include any related taxes (including without limitation sales and use taxes, duties or other governmental taxes or fees), all of which are your responsibility and will be charged to your Payment Method in addition to the fees.
- Payment Method. Trovata may, from time to time, offer various payment methods, including without limitation payment by credit card, debit card, or direct debit. You authorize Trovata to charge you for Services through the payment method you select when purchasing the Services (the ” Payment Method “) and you agree to make payment using such Payment Method(s). Trovata may, from time to time, receive and use updated payment method information provided by you or that financial institutions or payment processors may provide to us to update information related to your Payment Method(s), such as updated expiration dates or account numbers. Certain Payment Methods, such as credit cards and debit cards, may involve agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Methods (the ” Payment Method Provider “). If Trovata does not receive payment from your Payment Method Provider, you agree to directly pay all amounts due upon demand from Trovata. Your non-termination or continued use of the Services reaffirms that Trovata is authorized to charge your Payment Method.
- Current Information Required. You agree to provide current, complete and accurate billing information and agree to promptly update all such information (such as changes in billing address, credit card number or credit card expiration date) as necessary for the processing of all payments that are due to Trovata. You agree to promptly notify Trovata if your Payment Method is canceled (for example, due to loss or theft) or if you become aware of a potential breach of security related to your Payment Method. If you fail to provide any of the foregoing information, you acknowledge that your current Payment Method may continue to be charged for Services and you remain responsible for all such charges.
- Payment Matters. If your payment method fails or your account is past due, Trovata reserves the right to either suspend or terminate your use of the Services. You agree to submit any disputes regarding any charge to your account in writing to Trovata within 60 days of such charge, otherwise such dispute will be waived and such charge will be final and not subject to challenge. You agree to reimburse us for all collection costs. Trovata reserves the right to charge you interest at a rate of 1.5% per month on any overdue amounts, or the maximum rate permitted by applicable law, whichever is lower. All fees and charges are nonrefundable and there are no refunds or credits for any partially used Services except (a) as expressly set forth in this Agreement, the Fees Page or a separate written agreement between us; (b) as otherwise required by applicable law; or (c) at Trovata’s sole and absolute discretion. Fees for the Services may be payable in advance, in arrears, per linked bank account or as otherwise described on the Fees Page or in a separate written agreement between us. All prices for Services are subject to change without notice; however, Trovata will use reasonable efforts to notify you at least 30 days before any price increase.
3. Client Content
- Grant of License. As between the parties, and except as otherwise expressly stated in this Agreement, you will own and retain all rights, title, and interest in and to all (i) Registration Information, Financial Account Information, and other data, information, text, graphics, links, and all other materials submitted by you to Trovata, (ii) all Account Data retrieved on your behalf and (iii) the output of your processing of your Account Data in the Services (collectively, the ” Client Content “). You hereby grant to Trovata and its suppliers a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, and fully paid-up right and license to analyze, process, use, publish, display, compile, create derivative works of and otherwise exploit, the Client Content for any and all purposes.
- Responsibility and Use of Client Content. You are solely responsible (and assume all liability and risk) for determining whether or not Client Content is legal, appropriate or acceptable, and whether you have the right to provide, access and use such content and grant to Trovata and its suppliers the right to use such content under this Agreement. Trovata will not be responsible for the Client Content. Trovata reserves the right at all times, at its discretion and without notice to you, to remove or refuse to store or use any Client Content within the Services. Trovata also reserves the right to access, preserve and disclose any information as it reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request; (ii) enforce this Agreement, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security, or technical issues; (iv) respond to user support requests; or (v) protect the rights and property of Trovata, its users and the public. You acknowledge that you are responsible for setting access rights and privileges for any users you authorize under your Trovata Account.
- Power of Attorney. For all purposes hereof, you hereby grant Trovata and Service Providers a limited power of attorney, and you hereby appoint Trovata and Service Providers as your true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for you and in your name, place and stead, in any and all capacities, to access third party internet sites, servers or documents, retrieve Account Data, and use your Financial Account Information, all as described above, with the full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with such activities, as fully to all intents and purposes as you might or could do in person. You acknowledge and agree that when Trovata or Service Providers access and retrieve information from third party sites, Trovata and Service Providers are acting as your agent, and not the agent or on behalf of the third party. You agree that third party account providers shall be entitled to rely on the foregoing authorization, agency and power of attorney granted by you. You understand and agree that the Services are not endorsed or sponsored by any third party account providers accessible through the Services.
4. Site Content and Mobile App
- Ownership of Site Content. Trovata and its licensors will own and retain all rights, title, and interest in and to the Services (including the Mobile App) and all materials therein, including, without limitation, software, Java applets, images, text, graphics, designs, illustrations, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, information, data, other files and the arrangement thereof, content belonging to other users and Documentation (collectively, ” Site Content “). ” Documentation ” means any user documentation, on any media, provided by Trovata for use with the Services.
- Limited License. During the term of this Agreement, you are granted a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Services and Documentation for your internal business purposes, subject to the terms and conditions of this Agreement. Usage of the Mobile App is solely for the purpose of accessing your Trovata Account on any mobile device you own or control. You agree that you will not (i) copy, modify, publish, adapt, sublicense, translate, sell, distribute, transmit, perform, display, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Site Content or the Services or cause others to do so; (ii) “frame” or “mirror” any part of the Services, without Trovata’s prior written authorization; (iii) use meta tags or code or other devices containing any reference to Trovata or the Services in order to direct any person to any other website for any purpose; (iv) resell or make any commercial use of the Services or Documentation other than as intended; (v) use any data mining, robots, or similar data gathering or extraction methods or otherwise collect any pictures, descriptions, data or other content from the Services or Documentation; (vi) forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Services; (vii) use any automated methods or processes to create user accounts or access the Services, or (viii) use the Site Content or the Services other than for their intended purpose. Any use of the Services or Site Content other than as expressly authorized herein, without the prior written consent of Trovata, is strictly prohibited and will violate and terminate the license granted herein. Unless explicitly stated herein, nothing in this Agreement will be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. Trovata reserves all rights not expressly granted herein in the Services and the Site Content. This license is revocable at any time.
- Updates to the Mobile App. We may from time to time provide updates to the Mobile App on your mobile device. These updates may be provided automatically “over the air” and are designed to improve, enhance and further develop the Mobile App. These updates can include Electronic Communications (see Section 5 below), bug fixes, enhanced functions and new software modules. You agree to receive and install such updates (and permit us to deliver these to you automatically) as part of your use of the Mobile App, and understand that fees and charges may apply (see subsection (d) below).
- Possible Wireless Service Provider Fees and Charges; Data Limit Applicability. Your wireless service provider may charge you for text messages and may charge you for data transmitted to or from your mobile device. Text messaging and data transmissions also may be applied against and deducted from data and text usage limits or plans set by your wireless service provider. You are solely responsible for such deductions and charges. Those messages and transmissions and related charges may be triggered by your usage of the Mobile App as well as by us, for example for automatic updates to the Mobile App. Charges by your wireless service provider will appear on your wireless service provider bill pursuant to your wireless service contract. Additionally, roaming and other fees and charges may apply when roaming outside your home service area. You should contact your wireless service provider for complete pricing and other details. By using the Services, you consent to our triggering of data or text services over your mobile device that may cause you to incur deductions or charges by your wireless service provider.
- Apple App Store Additional Terms and Conditions. This paragraph applies only to the Mobile App downloaded from Apple and contains language required by Apple. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to such Mobile App. You agree that such Mobile App must be used solely in compliance with Apple’s Usage Rules as set forth in Apple’s App Store Terms of Service. You may install a copy of such Mobile App onto any iPhone, iPod touch, or iPad that you own or control during the term of this Agreement. You acknowledge that Trovata, and not Apple, is responsible for (i) providing any maintenance and support for such Mobile App, and (ii) addressing any claims relating to such Mobile App, or your possession and/or use of such Mobile App including, but not limited to, any third-party claim that such Mobile App, or your possession and use of such Mobile App, infringes that third-party’s intellectual property rights. Apple will not be responsible for the investigation, defense, settlement, and discharge of any such intellectual property claim. Additionally, you agree, and Trovata acknowledges and agrees, that Apple and its subsidiaries are third-party beneficiaries of this paragraph, and that Apple will have the right (and will be deemed to have accepted the right) to enforce this paragraph as a third-party beneficiary thereof.
5. Communicating with you Electronically—Permission to Text
- You agree and consent to our communicating information, notices, messages, service alerts, announcements, agreements, privacy notices, disclosures or other communications (” Electronic Communications “) associated with the Services to you electronically by e-mailing such Electronic Communications to the e-mail address on file in your Trovata Account, by sending such Electronic Communications to you via SMS text message to the mobile number on file in your Trovata Account, or by in-app push notifications to your Mobile App.
- Electronic Communications are deemed to be received by you—at the latest—when they are sent to you at the last email address or wireless phone number you provided us. You agree to keep your email address and wireless phone number up to date with us in order that we may communicate with you. You may do so by updating your contact information as indicated in your profile in the Services via our website or in the Mobile App.
Trovata welcomes and encourages feedback, comments, and suggestions for improvements to the Services (” Feedback “). By providing Feedback, you agree that all Feedback becomes Trovata’s exclusive property. Additionally, you irrevocably assign to Trovata your complete rights, titles, and interests in and to Feedback, including any and all intellectual property rights contained therein. Moreover, at Trovata’s request and expense, you agree to execute documents and take such further action as Trovata may reasonably request to assist it in acquiring, perfecting, or maintaining subject intellectual property rights.
“Trovata”, Trovata’s logos and any other trade name or slogan contained in the Services are trademarks or service marks of Trovata, its partners or its licensors and may not be copied, imitated or used, in whole or in part, without the prior written permission of Trovata or the applicable trademark holder. In addition, the look and feel of the Services, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Trovata and may not be copied, imitated or used, in whole or in part, without Trovata’s prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Services are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Trovata.
8. Compliance with Laws
You agree that you will use the Services and provide, access and use Client Content in compliance with all applicable local, state, national and international laws, rules and regulations. You will not, will not agree to, and will not authorize or encourage any third party to: (a) use the Services to transmit or otherwise distribute any content that you do not have the necessary rights in or that is unlawful, defamatory, libelous, harassing, abusive, fraudulent or obscene, that contains viruses, or is otherwise objectionable, as reasonably determined by Trovata; (b) interfere or attempt to interfere with the proper working of the Services or prevent others from using the Services; or (c) use the Services for any fraudulent or unlawful purpose. Violation of any of the foregoing may result in immediate termination of this Agreement, at Trovata’s sole discretion, and may subject you to state and federal penalties and other legal consequences. Trovata reserves the right, but will have no obligation, to review the Client Content and use of the Services, including in relation to Trovata user complaints or disputes, in order to determine whether a violation of this Agreement has occurred or to comply with any applicable law, regulation, legal process, or governmental request.
9. Confidential Information
- Definition. ” Confidential Information ” means non-public business information, know-how, and trade secrets in any form, including information regarding our product plans, security practices and policies, and any other information a reasonable person should understand to be confidential, which is disclosed by or on behalf of either party or its affiliates to the other party or its affiliates, directly or indirectly, in writing, orally, or by inspection of tangible objects, and whether such information is disclosed before or after the effective date of this Agreement. Confidential Information includes any portion of this Agreement and its terms that is not publicly available on our website. “Confidential Information” excludes information that (i) is publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party through no action or inaction of the receiving party; (ii) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; or (iii) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality.
- Maintenance of Confidentiality. The party receiving Confidential Information hereunder agrees to take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than reasonable care, to prevent the unauthorized duplication or disclosure of the Confidential Information to third parties without the disclosing party’s prior written consent. The receiving party may disclose the disclosing party’s Confidential Information to the receiving party’s employees or agents who reasonably need to have access to such information to perform the receiving party’s obligations under this Agreement, and who will treat such information as Confidential Information under the terms of this Agreement. The receiving party may disclose the disclosing party’s Confidential Information if required by law so long as the receiving party gives the disclosing party written notice of the requirement prior to the disclosure (where permitted) and reasonable assistance, at the disclosing party’s expense, in limiting disclosure or obtaining an order protecting the information from public disclosure.
- Return of Materials and Effect of Termination. Upon written request of the disclosing party, or in any event upon any termination or expiration of this Agreement, the receiving party will return to the disclosing party or destroy all materials, in any medium, to the extent containing or reflecting any of the disclosing party’s Confidential Information. Following expiration or termination of this Agreement, we may purge your Client Content from our systems. The obligations in this Section 9 survive for three years following expiration or termination of this Agreement, except that Confidential Information that constitutes a trade secret of the disclosing party will continue to be subject to the terms of this Section 9 for as long as such information remains a trade secret under applicable law.
10. Data Security
- Data Security. We implement and maintain physical, electronic, and managerial procedures intended to protect against the loss, misuse, unauthorized access, alteration, or disclosure of Client Content. These measures include encryption of Client Content during transmission to the Services, and encryption of backups of Client Content and authentication credentials at rest. We will notify you of any unauthorized access to, or use of, Client Content that comes to our attention. If any unauthorized disclosure of Client Content resulting from your use of the Services comes to our attention, we will work with you to investigate the cause of such unauthorized disclosure, and will work together in good faith to take the steps reasonably necessary to prevent any future reoccurrence and to comply with applicable data breach notification laws.
- Data Transmission. You acknowledge that use of the Services involves transmission of Client Content and other communications over the Internet and other networks, and that such transmissions could potentially be accessed by unauthorized parties. You must promptly notify us of any suspected security breach at firstname.lastname@example.org.
11. Representations and Warranties
Without limiting any other representation, warranty or covenant of either party herein, you hereby represent and warrant to Trovata that: (a) you have the full right, power and authority to enter into this Agreement; (b) this Agreement is a valid and binding obligation of yours; and (c) you have obtained and will maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform your obligations hereunder in compliance with all applicable laws, rules and regulations. Further, you hereby represent and warrant to Trovata that (i) you will remain fully responsible for all access to and use of the Services through your username, password and any other authentication credentials, including access to any features the use of which results in monetary charges to you, whether or not you have knowledge of or authorize such access and use; (ii) you have the right to grant to Trovata and its suppliers the rights granted herein and that none of the Client Content contains any material that infringes upon any third-party right, including but not limited to rights arising from contracts between you and third parties, copyright, trademark, class action, patent, consumer protection laws, trade secret, moral rights, privacy rights, rights of publicity, or any other intellectual property or proprietary right, or which slanders, defames, libels, or invades the right of privacy, publicity, or other property rights of any person; (iii) none of the Client Content provided by you hereunder contains any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots, or other computer programming routines that may potentially damage or interfere with the Services, or intercept or expropriate any system data or personal information from the Services; (iv) you have provided and will continue to provide Trovata with accurate and complete Registration Information, Financial Account Information and other information, and will inform Trovata in writing of any changes or updates to such information during the term of this Agreement; and (v) you will review all Client Content and ensure that it is accurate and not misleading, and that such Client Content complies with this Agreement.
12. Term; Termination
The term of this Agreement will continue until terminated. In the event of a material breach by either party, the non-breaching party may terminate this Agreement immediately upon written notice without liability to the other party. Trovata may terminate for convenience at any time without notice. You may terminate for convenience at any time upon written notice to Trovata. Notwithstanding anything to the contrary, in the event of any termination, you will remain liable for any amount due under this Agreement through the effective date of termination and such obligation to pay will survive any termination of this Agreement, and no refunds of fees paid under this Agreement will be provided. Upon expiration or termination of this Agreement you must immediately uninstall the Mobile App. Termination of this Agreement will not relieve either party of any obligations or liabilities that have accrued prior to the termination date (including obligations to pay fees, taxes, interest and collection costs). In addition, each party’s obligations as provided in the following sections of this Agreement will survive termination: 3, 4(a), 6-9, 11-17 and 18(b).
- Your Indemnity. You agree to defend, indemnify and hold Trovata and its affiliates and each of their respective directors, officers, employees, agents, contractors, suppliers, licensors and representatives, and affiliates of each of the foregoing, harmless from and against any losses, costs, liabilities, claims, demands, damages and expenses, including reasonable attorneys’ fees, arising out of or related to (a) your violation of any term of this Agreement, (b) your usage of the financial account linkage functionality, (c) your unauthorized use of and access to the Services, (d) your violation of any rights of a third party, including without limitation any right of privacy or intellectual property rights; (d) any other party’s access and use of the Services with your username, password or any other authentication credentials; (e) your violation of any applicable laws, rules or regulations, (f) Client Content, or (h) your gross negligence or willful misconduct. The indemnified party agrees to give you prompt written notice of any claim and to reasonably cooperate with your defense of such claim, at your expense.
- Trovata Indemnity. Trovata agrees to defend, indemnify and hold you and your affiliated companies harmless from and against any and all third party claims and pay all awarded damages, losses, liabilities, costs and expenses or settlement related thereto arising from allegations that the Services or any portion thereof infringe(s) or otherwise violate(s) such third-party’s U.S. patents, trademarks or copyrights. You must give Trovata prompt written notice of any claim and reasonably cooperate with Trovata’s defense of such claim, at Trovata’s expense. If a claim under this paragraph is made or likely to be made, Trovata may in its sole discretion: (i) procure a license to allow you to continue using the allegedly infringing component(s) of the Services, (ii) modify the infringing component(s) to make them non-infringing, or (iii) if (i) and (ii) are not reasonably available, terminate your right to use the infringing component(s) effective immediately without liability.
15. Disclaimers; No Warranties
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TROVATA AND ITS AFFILIATES AND SUBSIDIARIES MAKE NO WARRANTY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO ANY MATTER, INCLUDING WITHOUT LIMITATION THE SERVICES. TROVATA EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, GUARANTEES AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT OR NON-INFRINGEMENT OR THOSE ARISING OUT A COURSE OF DEALING OR USAGE OF TRADE. FURTHER, TROVATA DOES NOT WARRANT THE RESULTS OR USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THAT YOU WILL RECEIVE ANY BUSINESS BENEFITS AS A RESULT OF USE OF THE SERVICES, AND YOU ASSUME ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. TROVATA MAKES NO WARRANTY, EXPRESS OR IMPLIED, RELATED TO THE AVAILABILITY, UPTIME, OR QUALITY OF THE SERVICES, AND TROVATA MAY FREELY ADD, MODIFY, UPDATE, REMOVE, AND REPLACE ANY SERVICES AS WELL AS DELETE ANY CLIENT CONTENT.
16. Limitation of Liability and Damages
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL TROVATA, ITS AFFILIATES, AND ITS SUBSIDIARIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES THAT RESULT FROM THIS AGREEMENT OR THE USE OR THE INABILITY TO USE THE SERVICES, EVEN IF TROVATA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFIT OR REVENUE (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS. WITHOUT LIMITING THE FOREGOING, TROVATA AND ITS AFFILIATES AND SUBSIDIARIES WILL NOT BE LIABLE TO YOU FOR ANY CHANGES WHICH TROVATA MAY MAKE TO THE SERVICES, OR FOR (A) ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES); (B) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CLIENT CONTENT OR OTHER DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES; (C) YOUR FAILURE TO PROVIDE TROVATA WITH ACCURATE REGISTRATION INFORMATION, FINANCIAL ACCOUNT INFORMATION OR OTHER INFORMATION; (D) ANY LIABILITY RESULTING FROM YOUR FAILURE TO KEEP YOUR USERNAME, PASSWORD OR ANY OTHER AUTHENTICATION CREDENTIALS OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL, AND (E) THE USE, INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY ACCOUNT PROVIDER SITE. EXCEPT FOR AMOUNTS EXPRESSLY DUE AND OWING HEREUNDER, IN NO EVENT WILL TROVATA AND ITS AFFILIATES AND SUBSIDIARIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, INDEMNIFICATION OR OTHERWISE) EXCEED THE AMOUNT RECEIVED BY TROVATA FROM YOU DURING THE TWELVE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. YOU WILL NOT COMMENCE ANY ACTION, SUIT OR PROCEEDING AGAINST TROVATA MORE THAN ONE YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, NOTHING IN THIS AGREEMENT WILL EXCLUDE OR LIMIT TROVATA’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ONLY THE LIMITATIONS WHICH ARE LAWFUL WILL APPLY TO YOU AND TROVATA’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
17. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
- Governing Law. You agree that the Services shall be deemed: (i) solely based in California, and (ii) a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in San Diego County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction, as set forth in the Arbitration provision below. You agree that San Diego County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
- Arbitration. READ THIS PARAGRAPH CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM TROVATA. For any dispute with Trovata, you agree to first contact us at legal@Trovata.io and attempt to resolve the dispute with us through good faith discussions. In the unlikely event that we have not been able to resolve a dispute after 60 days, we each agree to resolve any claim, dispute or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with this Agreement (collectively, ” Claims “), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at http://www.jamsadr.com. The arbitration will be conducted in San Diego County, California, unless you and Trovata agree otherwise. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this paragraph shall be deemed as preventing either you or Trovata from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation or other violation of either party’s confidential information or intellectual property or other proprietary rights.
- Class Action/Jury Trial Waiver. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND TROVATA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
18. Updates to this Agreement; Miscellaneous; Questions
- Updates to this Agreement. From time to time, Trovata may change, modify, add, or remove portions of this Agreement (each an ” Update “), and reserves the right to do so in its sole discretion. If Trovata Updates this Agreement, it will make the Updated Agreement available here , and the Updated Agreement will indicate the date of the latest revision. Trovata encourages you to review this Agreement periodically for changes. In the event that Updates to this Agreement materially alter your rights or obligations hereunder, Trovata will make reasonable efforts to notify you of the Updates. For example, Trovata may send a message to your email address that is currently associated with your Trovata Account or generate a pop-up or similar notification when you access your Trovata Account for the first time after such material changes are made. All Updated Agreements automatically take effect 30 days after they are made available through the Services, except that (i) disputes between you and Trovata will be governed by the version of this Agreement that was in effect on the date the dispute arose and (ii) unless specifically agreed otherwise, if you do not agree with any changes to this Agreement, you may terminate this Agreement as set forth above. Your continued access to or use of the Services after an Updated Agreement has become effective indicates that you have read, understood and agreed to the current version of this Agreement.
- Miscellaneous. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Trovata. Trovata may freely assign or transfer this Agreement. Both parties are independent contractors, and neither party is an agent, representative or partner of the other. Trovata may, in its sole discretion, work with licensors, vendors, contractors and other third parties to fulfill any obligations in this Agreement or to support the Services, and we may change our use of licensors, vendors, contractors and other third parties without notice to you. Trovata will remain responsible for the breach of this Agreement by such licensors, vendors, contractors and other third parties. This Agreement sets forth the entire agreement between Trovata and you, and supersedes any and all prior agreements (whether written or oral) with respect to the subject matter set forth herein. Any notices under this Agreement will be sent by Trovata to at least one of the addresses provided to Trovata in connection with your registration or updates thereto (or in a separate writing) and will be sent by you to the address for Trovata shown on http://www.trovata.io. Notices will be sent by nationally recognized express delivery service and will deemed given one business day after deposit with such delivery service. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision contained in this Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect. Headings are provided for convenience but do not constitute part of this Agreement.