Terms of Service
TERMS AND CONDITIONS OF LICENSE
By using the Software, you are agreeing to be bound by these Terms of Service. These Terms of Service and any related purchase order, statement of work, quotation order, signed invoice, and/or letter agreement collectively constitute an agreement (the “Agreement”). Please note that this Agreement contemplates a license of the Software, not a sale. You have no ownership rights in the Software or Documentation, and your rights to access and use the Software and Documentation are limited to those rights expressly set forth herein.
Grant of License
Subject to the terms and conditions of this Agreement, Trivie, Inc. (“Trivie”) grants you a non-transferable, non-exclusive license to use the Software and the Documentation, provided that you do not (and do not allow any third party to): (i) modify, adapt, reverse engineer, decompile, disassemble, reverse assemble, or otherwise attempt to discover any source code of the Software; (ii) sell, rent, sublicense, lease, loan, adapt, edit, or modify the Software or the Documentation; or (iii) create any derivative works from the Software. In addition, you agree not to (1) post, send, submit, publish, or transmit in connection with the Site any material that involves the unauthorized entry to any machine accessible via the Software; (2) interfere with the Site or any servers or networks connected to the Site; (3) disobey any requirements, procedures, policies or regulations of networks connected to the Site; (4) attempt to breach the security of or disrupt Internet communications on the Site, including without limitation accessing data to which you are not the intended recipient or logging into a server or account for which you are not expressly authorized; (5) execute any form of network monitoring or run a network analyzer or packet sniffer or other technology designed to intercept, decode, mine, or display any packets used to communicate between the Site's servers or any data not intended for you; or (6) attempt to “crack” or circumvent authentication or security of any content, host, network, or account on or from the site.
Reservation of Rights
Trivie retains all right, title, and interest to the Software and Documentation (including, but not limited to, its look-and-feel, interface designs, reports, the images, photographs, animation, video, audio, music, text, and/or applets incorporated therein), including, but not limited to, all patents, copyrights, trademarks, trade secrets, trade names, moral rights, and other proprietary rights therein. You acknowledge and agree that the Software and Documentation are protected by copyright laws, other intellectual property laws, and international treaties. You may not remove any copyright or other proprietary notices from the Software (including, but not limited to, any web-presence or web-enabled notices, code, or other embodiments originally contained in or dynamically or otherwise created by the Software) and Documentation. All trademarks, service marks, trade names, and other logos and marks associated with the Software and Documentation are the property of Trivie and/or its suppliers and may only be used for the limited purpose of identifying the Software and its output. All other uses and rights in and to the Software and/or Documentation not expressly granted herein are reserved to Trivie and its suppliers. You agree to reasonably cooperate with Trivie' policies to protect the Software and Documentation from unauthorized use, illegal reproduction, or illicit distribution.
Certain Defined Terms
For purposes of this Agreement, the following terms shall have the following respective meanings:
- “Confidential Information” means any and all current and future information, in whatever form, comprising trade secrets (as determined by applicable law) or non-public product information, technical or financial information, forecasts, customer names, hiring and employment practices, proprietary business methods, processes, or methodologies, and other non-public business information that may be disclosed between the parties, whether or not designated as “confidential” or “proprietary” if it would be reasonably understood under the circumstances of its disclosure to be confidential or proprietary; and User Data and PII. Confidential Information shall not include information if and only to the extent that the recipient establishes that the information: (i) is or becomes a part of the public domain through no act or omission of the recipient; (ii) was in the recipient's lawful possession prior to the disclosure and had not been obtained by the recipient either directly or indirectly from the disclosing party; (iii) is disclosed with the prior approval of the discloser; (iv) is independently developed by the recipient without reference to or recollection of the Confidential Information of the discloser; (v) becomes known to the recipient from a source other than the discloser without breach of this Agreement by the recipient and in a manner which is otherwise not in violation of the discloser's rights; or (vi) is disclosed by the recipient pursuant to a requirement of a governmental agency, court order, or by operation of law, provided that the recipient shall disclose only that part of the Confidential Information which it is required to disclose, shall notify the owner prior to such disclosure, and shall disclose such information only if governed by an appropriate protective order or contractual agreement to maintain the confidentiality of the information.
- “Documentation” means all documents, product descriptions, system requirements, specifications, user manuals, studies, and other materials in connection with the Software or the Site.
- “PII” means a User's legally protected personally identifying information.
- “Site” means the Trivie website currently at http://www.trivie.com or any one or more masked websites linked to the Site.
- “Software” means Trivie's service and software, comprising Tests, modules, content, and other resources accessible on the Site.
- “Support Services” means all customer set up, configuration, customization, consulting, ongoing support, analyses, reports, and training that Trivie may provide you in connection with this Agreement or your use of the Software.
- “Test” means the test consisting of a series of questions and answers that a User may take by accessing the Software through a computer or mobile device.
- “Test Results” means the score and related analyses of a completed Test.
- “User” means an employee, prospective employee, independent contractor, trainee, administrator, customer, or other person granted access to the Software.
- “User Data” means the Test Results and PII associated with a User.
Term and Termination
Either party may terminate this Agreement at any time as follows: (i) immediately upon written notice to the other party in the event of a material breach by the other party of the confidentiality or intellectual property ownership terms set forth herein; (ii) upon 30 days prior written notice to the other party in the event of a material breach by the other party of any terms and conditions of this Agreement other than as set forth in subsection (i) above, including (without limitation) for failure to pay fees due to Trivie under this Agreement, and the failure to cure such material breach during such 30-day period; and/or (iii) immediately in the event that the other party makes a general assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws or laws of debtor's moratorium. In addition, Trivie reserves the right to deny you access to the Software if you (a) have failed, within five days after receipt of written notice requesting payment, to pay all sums due under this Agreement that are not reasonably disputed by you; or (b) are otherwise in default or breach of a material provision of this Agreement. The expiration or termination of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve you of your obligation to pay all fees that have occurred or are otherwise accruing or owed under this Agreement.
As soon as practicable following the expiration or termination of this Agreement, each party shall return to the other party all property belonging to or owned by such other party, including, but not limited to, its Confidential Information and all copies thereof (or, at the request of a party, shall certify in writing the destruction thereof) and, in the case of Trivie, its Documentation. Following the expiration or termination of this Agreement, you shall have no further access to the Site or use of the Software. Upon your written request within 90 days following the expiration or termination of this Agreement, Trivie will transmit to you within 30 days of such request, at no cost to you, a record of all Test Results resulting from Tests taken by your Users during the term of this Agreement. Such transmission shall be in the form of a DVD or electronic feed that shall be accessible without the need for special software. Trivie shall have no obligation to maintain any or your data more than 90 days following the expiration or termination of this Agreement.
Your Express Acknowledgments and Agreements. By using the Software, you acknowledge and agree to each of the following:
- You are solely responsible for the questions and answers appearing in any Test.
- You shall determine in your sole discretion whether and how to use the Software and/or any Test Results, provided, however, that you may not use the Software or any Test Results to discriminate against Users on the basis of any legally or otherwise protected status, such as race, color, religion, sex, national origin, sexual orientation, age or disability.
- Only upon your prior written instructions will Trivie share User Data with third parties. Trivie shall not be responsible for the use and dissemination of such information by such third parties.
Data Storage, Analysis, and Retention
Trivie uses third-party vendors for hosting of the Software and for the storage, analysis, and reporting of User Data. All User Data is maintained on servers located in the United States subject to U.S. privacy and data protection laws and regulations governing the storage and transmission of PII. Unless you have purchased extended data retention (by separate addendum to this Agreement), Trivie may, at Trivie' sole discretion, permanently delete from its system all User Data older than 24 months. Trivie expressly disclaims liability for failure to retain, or the destruction of, User Data after the contractually agreed retention period.
Trivie reserves the right to provide to you, from time to time and at its sole discretion, upgrades of the Software and/or Documentation, which shall be deemed “Software” and “Documentation,” as applicable, and licensed to you only under the terms and conditions contained herein.
Trivie represents and warrants that the Software will perform substantially in accordance with the Documentation.
Disclaimer of Warranties and Limitation of Liability
EXCEPT AS EXPRESSLY SET FORTH IN “LIMITED WARRANTY” ABOVE, TRIVIE PROVIDES THE SOFTWARE, DOCUMENTATION, AND (TO THE EXTENT PROVIDED) SUPPORT SERVICES "AS IS" AND DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED. FURTHER, NEITHER TRIVIE NOR ITS LICENSORS WARRANT: (A) THAT THE SOFTWARE WILL MEET YOUR EXPECTATIONS, INCLUDING, BUT NOT LIMITED TO, YOUR DECISION TO HIRE OR TERMINATE A CANDIDATE BASED ON THE TEST RESULTS; (B) THAT THE SOFTWARE WILL NOT CAUSE AN ADVERSE OR DISPARATE IMPACT UPON ANY EQUAL EMPLOYMENT OPPORTUNITY; (C) THAT THE SOFTWARE WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE (ALTHOUGH TRIVIE WILL NOTIFY YOU AS SOON AS PRACTICABLE IF IT BECOMES AWARE OF ANY BREACH OF SECURITY AND WILL MAKE COMMERCIALLY REASONABLE EFFORTS TO CLOSE OR MITIGATE SUCH BREACH AS SOON AS POSSIBLE); (D) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE; OR (E) THAT ALL ERRORS IN THE SOFTWARE WILL BE CORRECTED (ALTHOUGH TRIVIE WILL MAKE COMMERICALLY REASONABLE EFFORTS TO CORRECT ANY ERROR IN THE SOFTWARE AS SOON AS PRACTICABLE FOLLOWING NOTIFICATION OF ITS EXISTENCE). IN NO EVENT SHALL TRIVIE, ITS AUTHORIZED DISTRIBUTORS, OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, EVEN IF TRIVIE OR ITS AUTHORIZED DISTRIBUTORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE. IN NO EVENT WILL THE LIABILITY OF TRIVIE AND ITS SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT EXCEED THE RETAIL PRICE OF THE SOFTWARE.
The Site is maintained and managed in the United States of America. Trivie makes no representation that it operates (or is legally permitted to operate) in all geographic areas. Trivie makes no representation that the Site, Software, or information found through the Site is appropriate or available for use in all geographic locations. Accessing the site from territories where the content of the Sites is illegal is expressly prohibited. If you view the Site and/or access the Software from any country other than the United States of America, you acknowledge that you are doing so on your own initiative and you are solely responsible for compliance with all applicable laws.
Trivie agrees at its election to defend at its own expense, or to indemnify and hold harmless, you and your parent and subsidiaries, and your and their respective employees, officers, directors, stockholders, agents, licensors, and their respective successors and assigns (collectively, the “Client Indemnitees”) from and against any and all claims, suits, liabilities, judgments, and expenses (including, but not limited to, the payment of reasonable attorneys' fees, costs of investigation, and costs of suit incurred in connection with such defense), in law or in equity, and will defend or settle at Trivie' expense and your request, any claim, demand, action, or other proceeding brought against a Client Indemnitee arising out of or based upon any claim: (i) that results from a breach of Trivie' Limited Warranty; (ii) that the Software or the Documentation, solely and not in combination with any other software, system, technology, or method, directly infringes on any U.S. registered patent, trademark, or copyright; or (iii) that relates to Trivie' misuse or disclosure of your Confidential Information or a Users PII (provided that Trivie shall not be liable for the disclosure of Confidential Information or PII resulting from security breaches beyond its reasonable control). Any obligation of Trivie to provide defense or indemnification hereunder is contingent upon you: (a) giving Trivie prompt written notice of any such claim, in no event less than 10 days prior to the due date for any response; (b) providing Trivie reasonable assistance in defending or settling same; and (c) agreeing that Trivie solely controls the defense and/or settlement thereof. Notwithstanding the foregoing, the defense or indemnification obligations set forth above shall not apply to: (1) Trivie' dissemination of PII collected through the Site to third parties at your written instruction; and (2) the use and dissemination of PII by such third parties.
You agree at your election to defend at your own expense, or to indemnify and hold harmless, Trivie, its parent and subsidiaries, and its and their respective employees, officers, directors, stockholders, agents, licensors, and their respective successors and assigns (collectively, the “Trivie Indemnitees”) from and against any and all claims, suits, liabilities, judgments, and expenses (including, but not limited to, the payment of reasonable attorneys' fees, costs of investigation, and costs of suit incurred in connection with such defense), in law or in equity, and will defend or settle at your expense and Trivie' request, any claim, demand, action, or other proceeding brought against a Trivie Indemnitee arising out of or based upon any claim: (i) that results from any unauthorized use of the Software or Documentation; (ii) by any User based on a hiring or termination decision made by you as a result of the Software; (iii) that results from your breach of your Express Acknowledgements and Agreements set forth above; (iv) that results from Trivie' dissemination of PII to third parties at your written instruction, or the use and dissemination of PII by such third parties; or (v) that relates to your misuse or disclosure of Trivie' Confidential Information. Any obligation of yours to provide defense or indemnification hereunder is contingent upon Trivie: (a) giving you prompt written notice of any such claim, in no event less than 10 days prior to the due date for any response; (b) providing you reasonable assistance in defending or settling same; and (c) agreeing that you solely control the defense and/or settlement thereof.
Entire Agreement; Governing Language
This Agreement, together with any letter agreement or other business term sheet associated herewith, and such addenda, exhibits, schedules, and riders as may currently or subsequently be attached hereto or that reference this Agreement from time to time, constitutes the entire agreement between you and Trivie concerning the subject matter hereof, and supersedes any and all prior agreements. Any modification of this Agreement must be in writing and signed by an authorized officer of Trivie. This Agreement is in the English language only, and the English language shall control this Agreement in all respects. You waive any rights that you may have under the laws of your country for this Agreement to be written in the language of that country. This Agreement shall be governed by the laws of the State of Texas, U.S.A., excluding the application of its conflicts of law rules. You hereby submit to the personal and exclusive jurisdiction of the courts located in Dallas County, Texas, for the resolution of any dispute involving this Agreement or the subject matter hereof. The U.N. Convention on Contracts for the International Sale of Goods shall not apply in any respect to this Agreement.
A waiver by Trivie of a breach of any provision of this Agreement shall not operate as, or be construed as, a waiver or breach of any other provision of this Agreement. If any part of this Agreement is held invalid, void, or unenforceable, that part shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the balance of this Agreement shall remain in full force and effect. Except as otherwise expressly provided herein, neither this Agreement nor any rights or obligations hereunder may be transferred, sublicensed, or assigned by you without Trivie' prior written consent, which it may grant or withhold in its sole discretion, and any attempt to the contrary will be void and a material violation of this Agreement; provided, however, that you may assign the license granted herein to your wholly-owned subsidiaries who have agreed to be bound by all of the terms and conditions contained in this Agreement without Trivie' prior consent. Trivie may assign this Agreement and the obligations hereunder to any wholly-owned subsidiary, successor to its business, or acquirer of its assets, whether by merger or acquisition, without your prior consent. Trivie reserves the right to disclose to third parties that you are a customer of Trivie. Any notices to Trivie under this Agreement shall be deemed to be given when deposited in the United States Mail by certified or registered mail, postage prepaid, and addressed in writing to: P.O. Box 12801, Dallas, Texas 75225, attention Compliance. Other communications with Trivie may be made toll-free at (855) 438-8748, or via e-mail at firstname.lastname@example.org.