Terms of Service

TERMS OF SERVICE

These Terms of Service (this “Agreement”) govern your use of TerraTrue’s privacy and security software-as-a-service platform, together with any other product or service made available through this website (collectively, the “Service”). The Service is made available to you by TerraTrue Inc. (“TerraTrue”). BY USING THE SERVICE, YOU AGREE ON BEHALF OF YOU AND YOUR ORGANIZATION (TOGETHER, “LICENSEE”) TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICE.

1. Definitions.

1.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means either:

(a) ownership or control of more than 50% of the voting interests of the subject entity; or

(b) The power to direct or cause the direction of the management and policies of an entity, whether through ownership, by contract, or otherwise.

1.2. “Documentation” means TerraTrue’s then-current online user guides, as updated from time to time, and made accessible from within the “Help Center” feature of the Service.

1.3. “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

1.4. “Improvements” means new features, functionality, enhancements, upgrades, error corrections, and bug fixes to the Service made generally available by TerraTrue at no additional charge.

1.5. “Licensee Data” means information submitted by a User through the Service, including all associated messages, attachments, files, URL links, launches, labels, review team names, notes, comments, and other similar content.

1.6. “Subscription” means the access to the Service purchased by Licensee.

1.7. “Subscription Term” means the period selected by Licensee (monthly or annual) during which Licensee is permitted to use or access the Service.

1.8. “User” means an individual who is authorized by Licensee to use the Service under Licensee’s account. Users may include, without limitation, Licensee’s or its Affiliates’ employees, consultants, contractors, and agents.

2. The Service.

2.1. Provision of the Service. TerraTrue will make the Service to Licensee pursuant to this Agreement during the applicable Subscription Term. The Service includes the features and functionality applicable to the tier of Service selected by Licensee. TerraTrue may update the content, features, functionality, and user interface of the Service from time to time in its sole discretion.

2.2. Access Rights. Licensee has a non-exclusive, non-sublicensable, non-transferable (except as specifically permitted in this Agreement) right to access and use the Service pursuant to this Agreement during the applicable Subscription Term, solely for Licensee’s internal business purposes.

2.3. Usage Restrictions. Licensee may not:

(a) Exceed the scope of Licensee’s selected Service Tier;

(b) make the Service available to, or use any Service for the benefit of, anyone other than Licensee and its Affiliates;

(d) reverse engineer, copy, modify, adapt, hack the Service, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks;

(e) access the Service, the Documentation, or TerraTrue’s Confidential Information to build a competitive product or service;

(f) alter or remove any proprietary trademark or copyright markings incorporated in, marked on, or affixed to the Service;

(g) access or use the Service:

(i) to send or store infringing, obscene, threatening, or otherwise unlawful material, including material violative of third-party privacy rights;

(ii) in violation of applicable laws;

(iii) to send or store material knowingly or intentionally containing software viruses, worms, Trojan horses or other harmful computer code, files, or scripts; or

(iv) in a manner that interferes with or disrupts the integrity or performance of the Service; or permit or enable a third party to do any of the foregoing.

(h) permit or enable a third party to do any of the foregoing.

2.4. Protection of Licensee Data. TerraTrue will implement and maintain reasonable security procedures and practices that are appropriate to the nature of the Licensee Data and are designed to protect that data from unauthorized access, destruction, use, modification, or disclosure.

2.5. Beta Features. Some features or functions of the Service may be offered on a beta or trial basis (“Beta Features”). TerraTrue provides the Beta Features “as is” and makes no warranties (express or implied) of any kind with respect to the Beta Features.

2.6. Access to Services. Licensee is responsible for acquiring and maintaining, at its sole cost and expense, all telecommunications and internet services and other hardware and software required to access and use the Service. Licensee will take reasonable measures to safeguard its account and login credentials. As between the parties, Licensee will be solely responsible for any use of the Service under its account, whether authorized by Licensee or not.

3. Warranties and Disclaimers.

3.1. By TerraTrue. TerraTrue warrants that during the applicable Subscription Term:

(a) the Service will perform materially in accordance with the applicable Documentation; and

(b) it will not introduce or knowingly transmit through the Service any virus, malware, or other harmful code.

3.2. By Licensee. Licensee warrants that:

(a) this Agreement is legally binding on it and enforceable; and

(b) it has obtained all legally required consents and permissions from Users for the submission and processing of personal data through the Service.

3.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS SECTION, TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICE, AND ALL RELATED COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND TERRATRUE AND ITS AFFILIATES EXPRESSLY DISCLAIM ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. WITHOUT LIMITING THIS DISCLAIMER, TERRATRUE WILL HAVE NO LIABILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF ANY INFORMATION OR DATA; (B) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVICE; (C) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SERVICE; (D) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED THROUGH THE SERVICE BY ANY THIRD PARTY; OR (E) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SERVICE OR OF ANY INFORMATION OR DATA OBTAINED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE SERVICE. THE SERVICE IS INTENDED TO COMPLEMENT A LICENSEE’S PRIVACY-COMPLIANCE PROGRAMS AND NOT TO SUBSTITUTE FOR TRAINED PRIVACY PROFESSIONALS. TERRATRUE DOES NOT PROVIDE LEGAL ADVICE AND THE SERVICE SHOULD NOT BE RELIED ON FOR LEGAL ADVICE. PRIVACY LAWS AND RELATED REGULATIONS CHANGE FREQUENTLY. ACCORDINGLY, WHILE TERRATRUE AIMS TO KEEP THE SERVICE ACCURATE AND UP-TO-DATE, TERRATRUE DOES NOT GUARANTEE IT.

4. Fees and Payment.

4.1. Subscription Fees. Unless otherwise agreed by TerraTrue in writing, Subscription fees will be charged to Licensee in accordance with Licensee’s selected Subscription tier and Subscription Term. Licensee will be required to make payment using various supported payment methods, including credit cards. Licensee is responsible for the accuracy of its credit card information and/or banking information and keeping such information up to date. Except where prohibited by applicable law, all payments are non-refundable (including if this Agreement terminates). TerraTrue reserves the right to suspend Licensee’s account, in addition to all of its other available rights and remedies, in the event charges do not process or otherwise for non-payment. Suspension will not relieve Licensee’s obligation to pay amounts due.

4.2. Taxes. Any fees charged to Licensee exclude taxes. Except for those taxes based on TerraTrue’s net income, Licensee will be responsible for all applicable taxes in connection with this Agreement including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties.

4.3. Future Features and Functionality. Licensee agrees that any purchases under this Agreement are not contingent on the delivery of any future feature or functionality or dependent on any oral or written comments made by TerraTrue regarding future features or functionality. TerraTrue may release Improvements and other features and functionality in its discretion. Some features and functionality may be available only with certain versions of the Service.

5. Term and Termination.

5.1. Term. This Agreement begins on the date that Licensee registers for the Service and will continue in accordance with Licensee’s Subscription tier until earlier terminated as provided in this Section 5.

5.2. Termination for Breach. TerraTrue may terminate this Agreement and Licensee’s right to access and use the Service immediately upon notice if Licensee breaches any material provision of this Agreement.

5.3. Cancellation. Licensee may cancel its Subscription at any time, in which event the Term shall end at the of the current paid-up Subscription Term.

5.4. Effect of Termination. Whenever this Agreement expires or is terminated or cancelled, all Subscriptions and any other rights granted to Licensee under this Agreement will immediately terminate, and TerraTrue may immediately deactivate any Licensee account associated with the Agreement. In no event will any termination relieve Licensee of the obligation to pay any fees accrued or payable to TerraTrue. The following sections will survive expiration or termination of this Agreement: Sections 2.3 (“Usage Restrictions”), 3 (“Warranties and Disclaimers”), 4.1 (“Subscription Fees”), 4.2 (“Taxes”), 5 (“Term and Termination”), 6 (“Confidentiality”), 7 (“Intellectual Property Rights”), 8 (“Indemnification”), 9 (“Liability”), and 10 (“Miscellaneous”).

5.5. Suspension. TerraTrue may suspend Licensee’s use of the Service, in its sole discretion, if TerraTrue reasonably believes that Licensee or anyone using the Service through Licensee’s account is engaged in:

(a) any activity that may harm the Service or TerraTrue’s ability to operate and maintain the Service; or

(b) any fraudulent or illegal activity or any activity that could result in legal liability to TerraTrue. TerraTrue will use reasonable efforts under the circumstances to notify Licensee before suspending the Service. Any suspension may continue until the event causing the suspension has been cured or until TerraTrue has received satisfactory assurances that the event will not recur.

6. Confidentiality.

6.1. Definition of Confidential Information. While performing under this Agreement, each party may make available to the other party information that is not generally known to the public and at the time of disclosure is either identified as, or should reasonably be understood by the receiving party to be, proprietary or confidential (the “Confidential Information”). Confidential Information specifically includes, but is not limited to, the Service, Licensee Data, business plans, product plans and roadmaps, strategies, forecasts, projects and analyses, financial information and fee structures, business processes, methods and models, and technical documentation. Confidential Information does not include information that:

(a) is or becomes publicly available through no fault of the receiving party;

(b) was known to the receiving party before the disclosing party disclosed it;

(c) is or was independently developed by the receiving party without using any of the disclosing party’s Confidential Information; or

(d) is or was lawfully received by the receiving party from a third party under no obligation of confidentiality.

6.2. Protection of Confidential Information. Except as otherwise permitted under this Agreement, with the prior written consent of the disclosing party, or as required by law, the receiving party will not disclose, transmit, or otherwise disseminate to a third party any Confidential Information of the disclosing party. Receiving party will not use the disclosing party’s Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The receiving party will use the same care and discretion with respect to the Confidential Information received from the disclosing party as it uses with its own similar information, but in no event less than a reasonable degree of care. The receiving party may disclose the disclosing party’s Confidential Information to its employees, Affiliates, consultants, subcontractors, agents, or advisors (“Representatives”) who have a strict need to access the Confidential Information for the purpose of performing under this Agreement and only to those who are obligated to maintain the confidentiality of the Confidential Information upon terms at least as protective as those contained in this Agreement. Either party may disclose the terms of this Agreement to potential parties to a bona fide fundraising, acquisition, or similar transaction solely for purposes of the proposed transaction, provided that the potential party is subject to written non-disclosure obligations and limitations on use no less protective than those set forth in this Agreement.

6.3. Equitable Relief. The receiving party acknowledges that the remedy at law for breaching this Section 5 may be inadequate and that, in addition to any other remedy the disclosing party may have, it will be entitled to seek equitable relief, including, without limitation, an injunction (without the requirement of posting a bond, other security or any similar requirement or proving any actual damages), to prevent breaches or threatened breaches of this Section 5 by the receiving party or any of its Representatives and to enforce the terms and provisions of this Section 5.

6.4. Compelled Disclosure. The receiving party may disclose Confidential Information of the disclosing party if legally required to do so in connection with any legal or regulatory proceeding. But in that event, the receiving party will, if lawfully permitted, notify the disclosing party within a reasonable time before disclosing to allow the disclosing party an opportunity to seek appropriate protective measures. 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, the disclosing party will reimburse the receiving party for the reasonable costs of compiling and providing secure access to that Confidential Information. The receiving party will furnish only that portion of the Confidential Information that is legally required to be disclosed, and any Confidential Information so disclosed will maintain its confidentiality protection for all purposes other than the legally compelled disclosure.

6.5. Sensitive/Personal Information. Licensee agrees that it will not use the Service to send or store personal information subject to special regulatory or contractual handling requirements (e.g., Payment Card Industry Data Security Standards, the Gramm-Leach-Bliley Act, the Health Insurance Portability and Accountability Act, and any similar data protection laws) including without limitation: credit card information, credit card numbers and magnetic stripe information, social security numbers, driver’s license numbers, passport numbers, government issued identification numbers, health-related information, biometric data, financial account information, personally identifiable information collected from children under the age of 13 or from online services directed toward children, and real time geolocation data that can identify an individual, or information deemed “sensitive” under applicable law (such as racial or ethnic origin, political opinions, or religious or philosophical beliefs).

7. Intellectual Property Rights.

7.1. By Licensee. Licensee owns all right, title, and interest in and to Licensee Confidential Information and Licensee Data, including all related Intellectual Property Rights. Licensee grants TerraTrue and its authorized third-party service providers a worldwide, non-exclusive license to host, copy, access, process, transmit, and display Licensee Data:

(a) to maintain, provide, and improve the Service and perform under this Agreement;

(b) to prevent or address technical or security issues and resolve support requests;

(d) at Licensee’s direction or request or as permitted in writing by Licensee.

7.2. By TerraTrue. TerraTrue owns all right, title, and interest, including all related Intellectual Property Rights, in and to its Confidential Information and the Service, including any enhancements, customizations, or modifications.

7.3. Suggestions. TerraTrue welcomes feedback from its Licensees about the Service. If Licensee (including any User) provides TerraTrue with any feedback or suggestions regarding the Service (“Feedback”), TerraTrue may use, disclose, reproduce, sublicense, or otherwise distribute and exploit the Feedback without restriction or any obligation to Licensee or any User.

7.4. Usage Data and Analytics. TerraTrue may compile, collect, copy, modify, publish, and use anonymized and aggregated data generated from Licensee Data and Licensee’s use of the Service for analytical and other business purposes. TerraTrue may also collect and analyze data and other information relating to Licensee’s usage behavior and the provision, use, and performance of various aspects of the Service.

8. Indemnification.

8.1. By Licensee. Licensee will:

(a) defend TerraTrue, its Affiliates, and their employees, officers, and directors (together, the “TerraTrue Indemnified Parties”) from and against third-party claims, actions, and demands arising from or relating to:

(i) the Licensee Data; or

(ii) unauthorized use of the Service by Licensee or its Users or under Licensee’s account, (each, a “Claim Against TerraTrue”).

(b) indemnify the TerraTrue Indemnified Parties for any damages, reasonable attorneys’ fees, and costs finally awarded against TerraTrue Indemnified Parties as a result of, or for any amounts paid by the TerraTrue Indemnified Parties under a Licensee-approved settlement of, a Claim Against TerraTrue.

8.2. By TerraTrue. TerraTrue will defend Licensee, its Affiliates, and their employees, officers, and directors (together the “Licensee Indemnified Parties”) from and against third-party claims, actions, and demands arising from or relating to an allegation that Licensee’s authorized use of the Service infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of that third party (each, a “Claim Against Licensee”), and TerraTrue will indemnify the Licensee Indemnified Parties for any damages, reasonable attorneys’ fees, and costs finally awarded against Licensee Indemnified Parties as a result of, or for any amounts paid by the Licensee Indemnified Parties under a TerraTrue-approved settlement of, a Claim Against Licensee. In no event, however, will TerraTrue have any obligations or liability under this Section 7.2 to the extent that a Claim Against Licensee arises from:

(a) Licensee or any User’s use of the Service other than as permitted under this Agreement;

(b) use of the Service in a modified form or in combination with products, services, content, or data not furnished to Licensee by TerraTrue.

8.3. Indemnification Process. The party seeking indemnification will provide prompt notice to the indemnifying party concerning the indemnifiable claim, will promptly provide the indemnifying party with all information and assistance reasonably requested, and will cooperate fully with the indemnifying party in defending the claim. Failure to give prompt notice will not constitute a waiver of a party’s right to indemnification and will affect the indemnifying party’s obligations under this Agreement only to the extent that the indemnifying party’s rights are materially prejudiced by the failure or delay. The indemnifying party will have full control and authority over the defense of any claim. But the party seeking indemnification must first provide written consent, not to be unreasonably withheld or delayed, if the settlement would require the party seeking indemnification to admit liability or make any financial payment.

8.4. Right to Ameliorate Damages. If a court of competent jurisdiction determines that any portion of the Service infringes or misappropriates any third-party Intellectual Property Rights, or if TerraTrue, in its sole discretion, reasonably determines that the Service may infringe or misappropriate any third-party Intellectual Property Rights, TerraTrue will, as Licensee’s sole and exclusive remedy (but without limiting TerraTrue’s obligations under Section 8.2), either:

(a) obtain a license, at reasonable cost, for Licensee to continue using the Service;

(b) modify the Service while retaining substantively equivalent functionality;

(d) terminate this Agreement in whole or in part (in which event, Licensee will immediately stop using the Service).

9. Liability.

9.1. Limitation of Liability. EXCEPT AS PROVIDED IN SECTION 9.3, IN NO EVENT WILL EITHER PARTY’S OR ITS AFFILIATES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE GREATER OF (A) $2,500.00 OR (B) THE TOTAL AMOUNT PAID OR PAYABLE BY LICENSEE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.

9.2. Exclusion of Consequential and Related Damages. EXCEPT AS PROVIDED IN SECTION

9.3, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, OR LOSS OF USE, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THIS DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

9.3. Exception. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 9 WILL NOT APPLY TO: (A) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 (OR ANY AMOUNTS PAID OR PAYABLE IN CONNECTION WITH SUCH OBLIGATIONS); (B) A PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 6; OR (C) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

10. Miscellaneous.

10.1. Choice of Law and Exclusive Venue. This Agreement and any disputes arising out of or related to it will be governed by the laws of the State of California without regard to its conflict-of-laws provisions. Any action must be litigated exclusively in the United States District Court for the Northern District of California. If, however, that court would lack original jurisdiction over the action, then the action must be litigated exclusively in the Superior Court of California, County of San Francisco. The parties consent to the personal jurisdiction of both courts. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

10.2. Notice. TerraTrue may give general notices related to the Service that are applicable to all Licensees by email, in-app notifications, or by posting them on the TerraTrue website or through the Service and such electronic notices will be deemed to satisfy any legal requirement that such notices be made in writing. Other notices must be sent via email, first class, airmail, or overnight courier to the addresses of the parties provided in this Agreement and are deemed given when received. Notices to TerraTrue must be sent to TerraTrue Legal at legal@terratrue.com with a copy to TerraTrue Inc., 201 Folsom Street, #34E, San Francisco, CA 94105, Attn: Legal Dept.

10.3. Publicity. TerraTrue may include Licensee’s name and logo in TerraTrue’s online Licensee list and in print and electronic marketing materials.

10.4. Relationship of the Parties. The parties are independent contractors with respect to all services provided under this Agreement. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement. Without limiting this Section, a Licensee’s Users are not third-party beneficiaries to Licensee’s rights under this Agreement.

10.5. Force Majeure. TerraTrue will not be liable for delayed or inadequate performance of its obligations under this Agreement to the extent caused by a condition that is beyond TerraTrue’s reasonable control, including but not limited to natural disaster, civil disturbance, pandemics, acts of terrorism or war, labor conditions, governmental actions, interruption or failure of the internet or any utility service, failures in third-party hosting services, and denial of service attacks (each a “Force Majeure Event”). TerraTrue will be relieved from its obligations (or part thereof) if the Force Majeure Event lasts and hinders the performance of those obligations (or part thereof). TerraTrue will promptly notify Licensee and make reasonable efforts to mitigate the effects of the Force Majeure Event.

10.6. Severability; No Waiver. If any provision of this Agreement is found to be invalid or unenforceable, that provision will be modified or reformed to give as much effect as possible to the provision. If the provision cannot be modified or reformed, it will be eliminated to the minimum extent necessary so that this Agreement will otherwise remain in effect and enforceable. A finding that any provision of this Agreement is invalid will not affect the rest of the Agreement’s validity. Waiving or failing to enforce a provision of this Agreement will not be deemed to waive another provision or to waive that same provision in the future.

10.7. Assignment. Neither this Agreement nor any of the rights and licenses granted under this Agreement may be transferred or assigned by Licensee without TerraTrue’s written consent (not to be unreasonably withheld or delayed). However, the TerraTrue’s consent will not be needed to assign this Agreement to Licensee’s Affiliate or to a successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Licensee’s assets. Any other attempt by Licensee to transfer or assign this Agreement will be invalid. This Agreement is freely assignable by TerraTrue. This Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.

10.8. Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter and supersedes any prior or contemporaneous representations, understandings, and agreements with respect to its subject matter. The parties are not relying on any representations or warranties regarding the subject matter of this agreement, except for the representations and warranties set forth in this Agreement.

10.9. Modifications. TerraTrue may, in its discretion, change the terms of this Agreement from time to time. All changes to this Agreement will be effective when posted, and we will provide prior notice of such changes to you via the Service or contact information you may have provided to TerraTrue upon registration. Your continued use of the Service following any changes to the Agreement will constitute your agreement to be bound by such changes. If you object to any such changes, your sole recourse shall be to stop using the Service.

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