Intrusta Terms of Service
VERSION DATE: August 31, 2018
BY ACCESSING OR USING ANY SERVICE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE ANY SERVICE. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.
IF YOU ARE USING ANY SERVICE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
This Intrusta Terms of Service (“Agreement”) is entered into by and between iSubscribed, Inc. dba Intrusta (“Intrusta”) and the entity or person placing an order for or accessing any Service (“Customer” or “you”). This Agreement consists of the terms and conditions set forth below and any Order Forms (as defined below) that reference this Agreement.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to any Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
Purchase from Reseller: If Customer purchases any Service from an authorized reseller of Intrusta(“Reseller”), Customer’s use of the Service will be governed by this Agreement, except that Customer will pay Reseller for the Service.
Modifications to this Agreement: From time to time, Intrusta may modify this Agreement. Unless otherwise specified by Intrusta, changes become effective for Customer upon renewal of the then-current Subscription Term (as defined below) or entry into a new Order Form after the updated version of this Agreement goes into effect. Intrusta will use reasonable efforts to notify Customer of the changes through communications via Customer’s Account (as defined below), email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Order Form, and in any event continued use of any Service after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.
This Agreement permits Customer to purchase Services from Intrusta pursuant to Order Forms, including the Intrusta Service. The Intrusta Service is a next generation SaaS platform designed to address the pain points faced by consumers and small to medium size businesses (“SMBs”). For clarity, this General Description is for informational purposes only and does not modify the Agreement.
- Service Provision. Intrusta will make each Service ordered by Customer pursuant to Order Forms available to Customer under the terms of this Agreement.
- Order Form and Subscription Term. Each Service is made available to Customer on a subscription basis for a set term designated on an Order Form (“Subscription Term”) on the Order page. No Order will be binding until Customer has read this Agreement and the Customer’s credit card has successfully been charged for any and all Fees.
- Access to Services. Customer may access and use the applicable Service purchased under an Order Form during the agreed-upon Subscription Term and in accordance with the terms and conditions of this Agreement, the Documentation, and the Order Form. Use of and access to the Service is permitted only by personnel of Customer designated by Customer (“Users”). Customer may permit its independent contractors and consultants (“Contractors”) and Affiliates to serve as Users provided that any use of the Service by each such Contractor or Affiliate is solely for the benefit of Customer. Customer shall be responsible for compliance by each User with all of the terms and conditions of this Agreement. Any data provided by a User that is uploaded to the Service is Customer Data for the purposes of this Agreement.
- Client Software.To the extent use of a Service requires Customer to install Client Software, subject to all of the terms and conditions of this Agreement, Intrusta grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to use the object code form of the Client Software internally, but only in connection with Customer’s use of the Service and otherwise in accordance with the Documentation and this Agreement.
- Customer Affiliates may purchase Services from Intrusta directly by entering into an Order Form with Intrusta referencing this Agreement. By such Affiliate entering into an Order Form hereunder, such Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
- General Restrictions. Customer will not (and will not permit any third party to): (a) sell, rent, lease, license, distribute, provide access to, sublicense, or otherwise make available any Service to a third party (except as expressly set forth in Section 1.5 (Affiliates)) or in a service bureau or outsourcing offering; (b) use any Service to provide, or incorporate any Service into, any general purpose data warehousing service for the benefit of a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to any Service, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Intrusta); (d) remove or obscure any proprietary or other notices contained in any Service; or (e) use any Service in violation of the Acceptable Use Policy.
- Customer Data.
- Rights in Customer Data.As between the parties, Customer or its licensors will retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of the operation of the Service as provided to Subject to the terms of this Agreement, Customer hereby grants to Intrusta a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and display the Customer Data solely to the extent necessary to provide the services to Customer, or to prevent or address service or technical problems under this Agreement, or as may be required by law.
- Customer Obligations.
- In General. Customer will ensure that Customer’s use of each Service and all Customer Data is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Intrusta that Customer has sufficient rights in the Customer Data to grant the rights granted to Intrusta in Section 2.1 and that the Customer Data does not infringe or violate the intellectual property, publicity, privacy or other rights of any third party.
- HIPAA Data. Customer agrees not to upload to any Service any HIPAA Data unless Customer has entered into a Business Associate Agreement (“BAA”) with Intrusta. Unless a BAA is in place, Intrusta will have no liability under this Agreement for HIPAA Data, notwithstanding anything to the contrary in this Agreement or in HIPAA or any similar federal or state laws, rules or regulations. If Customer is permitted to submit HIPAA Data to a Service, then Customer may submit HIPAA Data to Intrusta and/or the Service only by uploading it as Customer Data. The mutually executed BAA shall be incorporated by reference into this Agreement and is subject to its terms.
- User ID and Password Protection. Customer will require that all permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Intrusta will not have any liability under this Agreement for actions taken using Customer’s user IDs and passwords, including any unauthorized use or access caused by misuse or misappropriation of such user IDs and passwords. Customer will be responsible for restricting access by any User who is no longer authorized to access the applicable Service.
- Data Privacy. Each party shall comply with the Customer Data Processing Addendum located at https://www.Intrusta.com/termsofservice(or such successor URL as may be designated by Intrusta) (“DPA”), which is incorporated herein by this reference. By signing this Agreement, each party is deemed to have signed the DPA, including the Model Clauses as “Data exporter” in the case of Customer, and as “Data importer” in the case of Intrusta.
- Intrusta will use commercially reasonable technical and organizational measures designed to prevent unauthorized access,use, alteration, or disclosure of Customer Data (“Security Policy”).
- Intellectual Property.
- Intrusta Technology.Customer agrees that Intrusta or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to all Services, Documentation, any Professional Services deliverables, and any and all related and underlying technology and documentation; and any derivative works, modifications, or improvements of any of the foregoing including as may incorporate Feedback (collectively, “Intrusta Technology”). Except for the express limited rights set forth in this Agreement, no right, title or interest in any Intrusta Technology is granted to Customer. Further, Customer acknowledges that each Service is offered as an online, hosted solution, and that Customer has no right to obtain a copy of the underlying computer code for any Service, except for the Client Software in object code format. Intrusta may freely use and incorporate into Intrusta’s products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any users of the Services relating to Intrusta’s products or services (“Feedback”).
- Service Data. Notwithstanding anything to the contrary herein, Customer agrees that Intrusta may collect Service Data, and Intrusta may use Service Data to develop, improve, support, and operate its products and services during and after the term of this Agreement. This Section 4.2 does not give Intrusta the right to identify Customer as the source of any Service Data without written permission from Customer.
- Confidential Information. Each party (as “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) to (i) not use any Confidential Information of the disclosing party (the “Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, 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 not materially less protective of the Confidential Information than those herein. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
- Fees and Payment; Taxes; Payment Disputes
- Fees and Payment. All Fees and payment terms are as set forth in the applicable Order. Except as expressly set forth in this Agreement or on the Web Site at the time of purchase, all payment obligations are non-cancelable and Fees are non-refundable.
- Taxes. Customer is responsible for paying all Taxes associated with its purchases hereunder other than taxes based on income, property, or employees of Intrusta. If Intrusta has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Intrusta will invoice Customer at the time of purchase and Customer will pay that amount at that time unless Customer provides Intrusta with a valid tax exemption certificated authorized by the appropriate taxing authority.
- Payment Disputes. Intrusta will not exercise its rights under Section 7.2 (Termination for Cause) or Section 7.6(a) (Suspension of Service) with respect to non-payment by Customer if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If the parties are unable to resolve such a dispute within thirty (30) days, each party shall have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any terms that would limit remedies on account of a dispute. For clarity, any undisputed amounts must be paid in full.
- TERM AND TERMINATION
- This Agreement is effective as of the Effective Date and will remain in effect until terminated in accordance with this Agreement. If there is no Order Form or Transition Period currently in effect, then either party may terminate this Agreement with ten (10) days’ notice to the other party. Each Order Form, unless expressly stated otherwise therein, will terminate upon expiration of the applicable Subscription Term or upon earlier termination as set forth in this Agreement or the Order Form.
- Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a)fails to cure any material breach of this Agreement (including a failure to pay Fees) within 30 days after written notice;(b) ceases operation without a successor; or © seeks protection under any bankruptcy, receivership, trust deed,creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party and is not dismissed within 60 days.
- Effect of Termination. Except to the extent expressly set forth in Section 7.4 (Transition Period), upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to the applicable Service (including any and all related Intrusta Technology) and delete any and all copies of the Client Software and Documentation, any Service passwords or access codes, and any other Intrusta Confidential Information in its possession). Customer acknowledges that following termination (or, if applicable, the Transition Period) it will have no further access to any Customer Data uploaded into the Service. Promptly following the expiration or termination of this Agreement (or, if applicable, the Transition Period) Intrusta will delete the Customer Data. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
- Transition Period. If this Agreement is not terminated by Intrusta for Customer’s breach in accordance with Section 7.2 (Termination for Cause), then following the expiration or termination of the last outstanding Order Form, there shall be a thirty (30) day Transition Period during which this Agreement will continue in full force and effect solely to the extent necessary to allow Customer to retrieve Customer Data from the applicable Service. During the Transition Period, Customer may retrieve Customer Data from the applicable Service if Customer has paid all Fees due and continues to pay for access to and use of the Service during the term of this Agreement and any Transition Period. Except to the extent expressly set forth in this Section, Intrusta has no obligation to archive or make available Customer Data after expiration or termination of this Agreement.
- The following Sections will survive any expiration or termination of this Agreement: 1.7 (General Restrictions), 4 (Intellectual Property), 5 (Confidential Information), 6.1 (Fees and Payment), 7 (Term and Termination), 8.2 (Warranty Disclaimer), 11 (Indemnification), 12 (Limitation of Remedies and Damages), 13 (General Terms), and 14 (Definitions).
- Suspension of Service. In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, Intrusta reserves the right to suspend provision of any Service; (a) if Customer is overdue on a payment, (b) if Intrusta deems such suspension necessary as a result of Customer’s breach of Section 1.8 (General Restrictions) or Section 2.3 (Customer Obligations), (c) if Intrusta reasonably determines suspension is necessary to avoid material harm to Intrusta or its other customers, including if the Service is experiencing denial of service attacks, mail flooding, or other attacks or disruptions outside of Intrusta’s control, or (d) as required by law or at the request of governmental entities.
- LIMITED WARRANTY
- Limited Warranty. Intrusta warrants that each Service will operate in substantial conformity with the applicable Documentation. In the event of a breach of this warranty, Intrusta will use commercially reasonable efforts to correct the reported non- conformity, at no charge to Customer, or if Intrusta determines such remedy to be impracticable, either party may terminate the applicable Order Form and Customer will receive a refund of any unused Fees Customer has pre-paid for the Service purchased thereunder. The foregoing shall be Customer’s sole and exclusive remedy for any breach of the warranty set forth in this Section. This warranty will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, or (ii) if the error was caused by misuse, unauthorized modifications, or third-party hardware, software, or services.
- Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH SERVICE, THE CLIENT SOFTWARE, SAMPLE DATA, AND ALL TECHNICAL SERVICES ARE PROVIDED “AS IS” AND INTRUSTA MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. INTRUSTA DOES NOT WARRANT THAT THE USE OF ANY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES Intrusta WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. INTRUSTA SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO THIRD-PARTY HOSTING PROVIDERS WITH WHOM CUSTOMER SEPARATELY CONTRACTS. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
- SUPPORT AND AVAILABILITY. During a Subscription Term, Intrusta will provide Customer the level of support and service levels for the applicable Service specified in the applicable Order Form, in accordance with the Support Policy.
- TECHNICAL SERVICES. Intrusta will provide the Technical Services purchased in the applicable Order Form, if any. The scope of Technical Services will be as set forth in a Statement of Work referencing this Agreement and executed by both parties describing the work to be performed, Fees and any applicable milestones, dependencies and other technical specifications or related information (“SOW”). Customer will pay Intrusta at the rates set forth in the SOW (or, if not specified, at Intrusta’s then-standard rates) for such Technical Services. Customer will reimburse Intrusta for actual reasonable travel and lodging expenses approved in advance by Customer. Customer may use anything delivered as part of the Technical Services in support of authorized use of the applicable Service and subject to the terms regarding Customer’s rights to use the Service set forth in Section 1 (Services) and the applicable SOW, but Intrusta will retain all right, title and interest in and to any such work product, code (including SQL queries) and deliverables and any derivative, enhancement or modification thereof created by or on behalf of Intrusta.
- Indemnification by Intrusta. Intrusta will defend Customer from and against any claim by a third party alleging that any Service, when used as authorized under this Agreement, infringes a U.S. patent, copyright, or trademark and will indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by Intrusta (including reasonable attorneys’ fees) resulting from such claim. If Customer’s use of the Service is (or in Intrusta’s opinion is likely to be) enjoined, if required by settlement or if Intrusta determines such actions are reasonably necessary to avoid material liability, Intrusta may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using the Service; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement and refund to Customer the Fees paid by Customer for the Service that were prepaid but not used by Customer. The foregoing indemnification obligation of Intrusta will not apply to the extent the applicable claim is attributable to: (1) the modification of the Service by any party other than Intrusta; (2) the combination of the Service with products or processes not provided by Intrusta; (3) any unauthorized use of the Service; or (4) any action arising as a result of Customer Data or any third-party deliverables or components contained within the Service. THIS SECTION SETS FORTH INTRUSTA’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
- Indemnification by Customer. Customer will defend Intrusta from and against any claim by a third party arising from or relating to any Customer Data or any product or service offered by Customer in connection with or related to the Intrusta Service, and will indemnify and hold harmless Intrusta from and against any damages and costs awarded against Intrusta or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim.
- Indemnification Procedures.In the event of a potential indemnity obligation under this Section 11, the indemnified party shall: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under this Section 11 shall notrelieve the indemnifying party of its obligations under this Section 11, however the indemnifying party shall not liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by such delay or failure to provide notice to the indemnifying party in accordance with this Section. The indemnifying party may not settle any claim in any matter that would require obligation on the part of the indemnified party (other than payment or ceasing to use infringing materials), or any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Further, any indemnification obligation under this Section 11 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.
- LIMITATION OF REMEDIES AND DAMAGES
- Consequential Damages Waiver. EXCEPT FOR EITHER PARTY’S OBLIGATIONS UNDER SECTION 11 (INDEMNIFICATION), NEITHER PARTY NOR ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
- Liability Cap. EXCEPT FOR EITHER PARTY’S OBLIGATIONS UNDER SECTION 11 (INDEMNIFICATION), AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EACH PARTY AND ITS AFFILIATES’ ENTIRE LIABILITY TO THE OTHER PARTY OR ITS AFFILIATES (FOR DAMAGES OR LIABILITY OF ANY TYPE) SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID (OR WITH RESPECT TO CLAIMS FOR FEES DUE, PAYABLE) BY CUSTOMER TO INTRUSTA ATTRIBUTABLE TO THE PRIOR 12 MONTHS UNDER THE APPLICABLE ORDER FORM.
- Additional Liability for Certain Claims. Notwithstanding Section 12.2 (Liability Cap), and except for either party’s obligations under Section 11 (Indemnification), for any claim arising from (i) Intrusta’s breach of any of Sections 2.4 (Data Privacy), 3 (Security), or 5 (Confidential Information); or (ii) Customer’s breach of any of Sections 2.3 (Customer Obligations), 2.4 (Data Privacy), or 5 (Confidential Information), the total separate aggregate liability of each party shall be limited to the amounts paid and/or payable by Customer to Intrusta attributable to the prior twelve (12) months under the applicable Order Form. If the amounts paid and/or payable under the preceding sentence are less than one hundred thousand U.S. dollars, then the total separate aggregate liability of each party under this Section shall be one hundred thousand U.S. dollars.
- Failure of Essential Purpose. The parties agree that the limitations specified in this Section 12 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
- GENERAL TERMS
- This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void.
- If any provision of this Agreement will be held by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
- Dispute Resolution; Governing Law; Jurisdiction and Venue. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it shall provide written notice to the other party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the parties which are allegedly being breached). Within thirty (30) days after such notice, knowledgeable executives of the parties shall hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section shall not apply to claims subject to indemnification under Section 11 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information. This Agreement will be governed by the laws of the Commonwealth of Massachusetts and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof will be the state and federal courts located in Boston, Massachusetts and both parties hereby submit to the personal jurisdiction of such courts.
- Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
- Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee: (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch; (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; or (iv) if given by email, immediately upon receipt, but notices related to termination of this Agreement or any claims (including without limitation breach, warranty or indemnity) may not be given via email except as expressly permitted in this Agreement or in an Order Form. Email notifications to Intrusta shall be to firstname.lastname@example.org.
- Amendments; Waivers. Except as otherwise provided herein, no supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect. Additionally, the parties and/or their Affiliates may enter into a non-disclosure, confidentiality, or similar agreement (an “NDA”) on or around the Effective Date of this Agreement. Notwithstanding anything to the contrary in the NDA or the fact that the NDA may be executed subsequent to this Agreement, the NDA shall not supersede or amend this Agreement or apply to Customer’s use of the Service or to any Customer Data.
- Entire Agreement.This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Intrusta may change and update any Service (in which case Intrusta may update the applicable Documentation accordingly) provided that such updates will not materially decrease the overall functionality of the Service. The terms described in the Support Policy, the Acceptable Use Policy, and the Security Policy, respectively, may be updated from time to time upon reasonable notice to Customer (which may be provided through the applicable Service or posted on the Site) to reflect process improvements or changing practices, but any such modifications will not materially diminish either party’s obligations as compared to those reflected in such terms as of the Effective Date.
- Third Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
- Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) if the delay or failure results from any cause beyond such party’s reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
- Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
- Export Controls. Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer will not (and will not permit any third parties to) access or use any Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to any Service any information that is controlled under the U.S. International Traffic in Arms Regulations.
- Federal Government End Use Provisions. Intrusta provides each Service, including all related software and the Intrusta Technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Intrusta to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
“Acceptable Use Policy” means Intrusta’s acceptable use policy, made available at https://intrusta.com/termsofservice (as such link may be updated).
“Account” means Customer’s account in the applicable Service in which Customer stores and processes Customer Data.
“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of more than fifty percent (50%) of the voting equity securities or other equivalent voting interests of an entity.
“Client Software” is any desktop client software included in the applicable Service that is made available to Customer by Intrusta for installation on end user computers.
“Confidential Information” shall mean all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. All
Intrusta Technology and the terms and conditions of this Agreement will be deemed Confidential Information of Intrusta without any marking or further designation. All Customer Data will be deemed Confidential Information of Customer without any marking or further designation. Confidential Information shall not include information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
"Contractor" is defined in Section 1.3 (Access to Services).
“Customer Data” means any data or data files of any type that are uploaded by or on behalf of Customer to a Service for storage in a data repository.
“Disclosing Party” is defined in Section5 (Confidential Information).
“Documentation” means Intrusta’s technical documentation and usage guides for the applicable Service, as updated by Intrusta from time to time, made available at https://intrusta.com/termsofservice (as such link may be updated) or through the Service.
“Fees” means the fees payable by Customer for the applicable Service or Technical Services, as set forth in an Order Form.
“Feedback” is defined in Section 4.1 (Intrusta Technology).
“HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented.
“HIPAA Data” means any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations.
“Order Form” means the Intrusta ordering document referencing this Agreement and specifying the Services to be provided hereunder that is entered into between Customer and Intrusta or any of either party’s Affiliates, including any addenda and supplements thereto.
“Receiving Party” is defined in Section 5 (Confidential Information).
“Service” means a Intrusta product or service ordered by Customer in an Order Form.
“Service Data” means query logs and other information about Customer’s use of a Service. Service Data is not Customer Data.
“SOW” is defined in Section 10 (Technical Services).
“Subscription Term” is defined in Section 1.2 (Order Form and Subscription Term).
“Support Policy” means the Intrusta Support Policy describing Intrusta’s current support policies and service level offerings
“Taxes” means taxes, levies, duties or similar governmental assessments of any nature, including, for example, any sales, use, GST, value-added, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction.
“Technical Services” means technical assistance related to the Service provided by Intrusta to Customer, as set forth in an Order Form or SOW.
“Transition Period” means the transition period following expiration or termination of all outstanding Order Forms, as further described in Section 7.4 (Transition Period).
“User” is defined in Section 1.3 (Access to Services.)
In this policy we use the term “cookies” to refer to cookies and other similar technologies covered by the EU Directive on privacy in electronic communications.
What is a cookie?
A cookie is a small piece of data that a website asks your browser to store on your computer or mobile device. The cookie allows the website to "remember" your actions or preferences over time.
Most Internet browsers support cookies; however, users can set their browsers to decline certain types of cookies or specific cookies. Further, users can delete cookies at any time.
What types of cookies do we use?
First-Party and Third-Party Cookies
We use both first-party and third-party cookies on our website.
First-party cookies are cookies issued from the intrusta.com domain that are generally used to identify language and location preferences or render basic site functionality.
Third-party cookies belong to and are managed by other parties, such as business partners or service providers. These cookies may be required to render certain forms, such as the submission of a job application, or to allow for some advertising outside of the Intrustawebsite.
Session cookies are temporary cookies that are used to remember you during the course of your visit to the website, and they expire when you close the web browser.
Persistent cookies are used to remember your preferences within the website and remain on your desktop or mobile device even after you close your browser or restart your computer. We use these cookies to analyze user behavior to establish visit patterns so that we can improve our website functionality for you and others who visit our website(s). These cookies also allow us to serve you with targeted advertising and measure the effectiveness of our site functionality and advertising.
How are cookies used for advertising purposes?
Cookies and ad technology such as web beacons, pixels, and anonymous ad network tags help us serve relevant ads to you more effectively. They also help us collect aggregated audit data, research, and performance reporting for advertisers. Pixels enable us to understand and improve the delivery of ads to you, and know when certain ads have been shown to you. Since your web browser may request advertisements and web beacons directly from ad network servers, these networks can view, edit, or set their own cookies, just as if you had requested a web page from their site.
How are third party cookies used?
How do I reject and delete cookies?
- Member Accounts—In order to use certain features of the Service, you may be asked to create an account (“Member Account”). You may never use another’s Member Account without permission. As part of the account set-up and registration process, you may be asked to select a username and password. You agree to provide true, accurate, current and complete information about yourself as prompted by the Site, and will maintain the accuracy of such registration data. We may refuse to grant you a username for any reason in our sole discretion, including in the event that we determine that such user name impersonates someone else, is illegal, vulgar, or otherwise offensive, or is protected by trademark or other proprietary rights law, or otherwise may cause confusion. You will be responsible for the confidentiality and use of your username and password and agree not to transfer or resell your use of or access to the Site to any third party. You agree to notify Intrusta immediately of any unauthorized use of your password or any other breach of security. YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR USERNAME AND PASSWORD AND FOR ANY AND ALL ACTIVITIES (INCLUDING PURCHASES, AS APPLICABLE) THAT ARE CONDUCTED THROUGH YOUR ACCOUNT.
- Intellectual Property Ownership—All text, content, documents, names, logos, trademarks, service marks, brand identities, characters, trade names, graphics, designs, copyrights, trade dress, or other intellectual property appearing in the Website, and the organization, compilation, look and feel, illustrations, artwork, videos, music, software and other works on the Site (the “Materials”) are owned by Intrusta and its affiliates or used with permission or under license from a third party (hereinafter collectively referred to as the “Owner”) and are protected under copyright, trademark and other intellectual property and proprietary rights laws. As between Intrusta and you, all right, title and interest in and to the Materials will at all times remain with Intrusta and/or its Owners. The words “Intrusta”, “Intrusta Platform” and the “Intrusta” logos, and other marks, logos and titles are registered and/or common law trade names, trademarks or service marks of Intrusta. Intrusta reserves all other rights. Except as expressly provided herein, nothing on the Site shall be construed as conferring any license under Intrusta’s and/or its Owner’s intellectual property rights, whether by estoppel, implication or otherwise. Notwithstanding anything herein to the contrary, Intrusta may revoke any of the foregoing rights and/or your access to the Site, or any part thereof, including the blocking of your IP Address, at any time without prior notice.
- Restrictions on Use—You agree that any copy of the Materials (or any portion of the Materials) that you make must retain all copyright and other proprietary notices contained herein or therein. Framing of the Site or posting of Materials on other websites is strictly prohibited. The use or misuse of the Site of any Materials, except as provided in these Terms is strictly prohibited. You shall not, without Intrusta’s express written consent:
(a) copy and retransmit, disseminate, broadcast, circulate, or otherwise distribute the Materials on any other server, or modify or re-use all or part of the Materials on this system or any other system;
(b) use any tradename, trademark, or brand name of Intrusta in metatags, keywords and/or hidden text;
(c) copy, distribute, modify, transmit, perform, reuse, re-post, or otherwise display the Materials, in whole or in part, for public or commercial purposes or modify, translate, alter or create any derivative works thereof;
(d) create derivative works from the Materials or commercially exploit the Materials, in whole or in part, in any way;
(e) use the Site, the Materials, and/or any portion thereof, in any manner that may give a false or misleading impression, attribution or statement as to Intrusta, the Owner, or any third party referenced therein;
(f) use the Materials, and/or any services and products on the Site or accessible via the Site for unlawful purposes;
(g) alter, remove or obscure any copyright notice, digital watermarks, proprietary legends or any other notice included in the Materials;
(h) disassemble, decompile, reverse compile or reverse engineer any part of the Site;
(i) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Site;
(j) use the Site or Materials for any illegal, fraudulent, misleading or deceptive purposes;
(k) interfere with or damage the Site or Materials, including without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
(l) disrupt, overburden, or aid or assist in the disruption or overburdening of (x) any computer or server used to offer or support the Site or Services; or (y) the enjoyment of the Site or Services by any other person;
(m) upload an content to the Site that (1) infringes any patent, trademark, trade secret, copyright, right of publicity, or other right of any person or entity; or (2) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive or profane; or
(n) engage in any chain letters, contests, junk email, pyramid schemes, spamming, surveys, or other duplicative or unsolicited messages (commercial or otherwise)
- Arbitration; Applicable Law
PLEASE READ THIS CAREFULLY. IT IS PART OF YOUR AGREEMENT WITH Intrusta AND AFFECTS YOUR RIGHTS. IF CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER
Most disputes can be resolved without resorting to litigation. Before initiating an arbitration, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with the Intrusta’s support department. You can reach Intrusta’s support department at support@ intrusta.com.
Except for a claim by Intrusta of infringement or misappropriation of Intrusta’s patent, copyright, trademark, or trade secret, any and all disputes between you and Intrusta arising under or related in any way to these Terms must be resolved through binding arbitration as described in this section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to your use of the Site.
YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND INTRUSTA ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND INTRUSTA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by this section. For any claim where the total amount of the award sought is $10,000 or less, the AAA, you must abide by the following rules: (a) the arbitration shall be conducted solely based on written submissions; and (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in Boston, Massachusetts. The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in Boston, Massachusetts. Claims of infringement or misappropriation of any party’s patent, copyright, trademark, or trade secret shall be exclusively brought in the state and federal courts located in Boston, Massachusetts.
The laws of the Commonwealth of Massachusetts, excluding its conflicts of law rules that would result in the laws of a State other than Massachusetts, govern your use of the Site and the Service.
You have the right to opt out and not be bound by this Arbitration and Class Action Waiver section by sending (from the email address registered to your Account) written notice of your decision to opt out to email@example.com with the subject line, "ARBITRATION AND CLASS ACTION WAIVER OPT-OUT" and your full legal name. The notice must be sent within thirty (30) days of your first use of the Intrusta Services, otherwise you shall be bound to arbitrate disputes in accordance with the terms of this mandatory arbitration provision. If you opt out of these arbitration provisions, Intrusta also will not be bound by them.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. This Arbitration and Class Action Waiver section shall survive any termination of your Account, the Intrusta Services or this Agreement.
- Community Guidelines—The Website may include certain functionality that allows users to post information, provide feedback and comments, or provide other content (“User Content”). Although Intrusta may from time to time review User Content, you acknowledge that is under no obligation to monitor or control, and shall have no liability for, any User Content. You acknowledge that any opinions, statement, recommendation, offers, advice or other information presented or disseminated or contained in User Content are those of their respective authors who are solely responsible and liable for their User Content. Intrusta reserves the right, in its sole discretion, to refuse to post or remove any User Content at any time, without notice, for any reason or for no reason. In the event you upload, post or otherwise transmit any content, text, information, works of authorship or other materials on or to the Site (“Your Content”), you shall and hereby do grant Intrusta a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, license, reproduce, modify, distribute, perform, display, and transmit Your Content for the purposes of providing the Site to you and other users.
- Digital Millennium Copyright Act—Intrusta is committed to respecting and protecting the legal rights of copyright owners. As such, Intrusta adheres to the following notice and take down policy, in full compliance with Section 512(c)(3) of the DMCA (17 U.S.C. § 512 et seq.). If you believe any of the Materials infringes upon your intellectual property rights, please submit a notification alleging such infringement (hereafter a “DMCA Takedown Notice”). To be valid, a DMCA Takedown Notice must (i) be provided to Intrusta’s designated agent, (“Copyright Agent”), as set forth below, and (ii) include the following:
(1) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works;
(2) Identification of the material claimed to be infringing or to be the subject of infringing activity and that is to be removed or access disabled and information reasonably sufficient to permit the service provider to locate the material;
(3) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
(4) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(5) A statement that, under penalty of perjury, the information in the notification is accurate and you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
Intrusta’s Copyright Agent to receive DMCA Takedown Notices is: firstname.lastname@example.org
- Disclaimers—Without limiting the foregoing, the Site and the Materials and all other features offered via the Site, are provided to you “AS IS” and “AS AVAILABLE” without warranty of any kind, either express or implied, including but not limited to, fitness for a particular purpose, title, or non-infringement. Should applicable law not permit the foregoing exclusion of express or implied warranties, then Intrusta hereby grants the minimum express or implied warranty required by such applicable law. No advice or information, whether oral or written, obtained by you from Intrusta, its employees, agents, suppliers or any other persons shall create any warranty, representation or guarantee not expressly stated in this section. Additionally, Intrusta does not make any warranties that the Site will be uninterrupted, secure or error free or that your use of the Site will meet your expectations, or that the Site, Materials, or any portion thereof, is correct, accurate, or reliable. Intrusta reserves the right to change any part of the Site at anytime without notice.
- Assignment—These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Intrusta without restriction.
- Changes to these Terms—From time to time, Intrusta may revise these Terms. When changes are made, Intrusta will make a new copy of the Terms available at the Site, and will also update the “Last Updated” date above. If Intrusta makes any material changes, and you have registered to create a Member Account with Intrusta, Intrusta will also send an email to you at the last email address you provided to us pursuant to the Terms. Any changes to the Terms will be effective immediately for new users of the Site and will be effective thirty (30) days after posting notice of such changes on the Site for existing users. Your use of the Site following the posting of any revised Terms shall be deemed acceptance of the revised policy. Intrusta strongly recommends checking Terms periodically. If you disagree with the provisions of these Terms at any time, your sole remedy is to terminate your use of the Site. Continued use of the Site constitutes your agreement to these Terms as in effect.
- Miscellaneous—Intrusta’s failure to enforce any provision of these Terms shall not be deemed a waiver of such provision nor of the right to enforce such provision. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. These Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.