NOW, THEREFORE, the Parties hereto for good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, and intending to be legally bound, hereby agree as follows:
1. Description of Data
The Data delivered under this Agreement shall consist of an annually updated set of privacy practice disclosures ("Data") as further described in Exhibit A.
2. Grant of License
Subject to the terms and conditions of this Agreement, TRUSTe agrees to grant Client a non-exclusive license (the "License") to: 1. (a) use the Data for lawful purposes. 2. (b) copy the Data into a machine-readable or printed form only as necessary to use it in accordance with this Agreement. 3. (c) comply with all applicable laws and regulations governing the use of the Data. 4. (d) enable Client users reasonable access to the Data.
3. Use Restrictions/Protection of Proprietary Rights
3.1Client acknowledges that TRUSTe retain all right, title, and interest in the Data. Client may not transfer, lease, or assign the Data except as specifically allowed herein. 3.2Except as allowed herein, Client agrees to not distribute the Data obtained under this Agreement or any copy thereof to any other party without the express prior written consent of TRUSTe. 3.3Client agrees to take all reasonable steps to protect against unauthorized access to, use, and bulk disclosure of the Data obtained under this agreement. 3.4Client may not refer to TRUSTe in any way in exercising its rights under this Agreement. 3.5Client may not engage is data collection, use, or disclosure practices inconsistent with the Data. Violation of this Section 3.5 is a material breach of the Agreement which shall cause this Agreement to terminate immediately with no refund.
4.1Client shall pay the initial and ongoing fees as required by this Agreement. During the Term hereof, Participant may apply to participate in other Programs, or expand the services for an existing Program. Unless otherwise agreed to by the Parties, additional fees will be applicable, per TRUSTe's then current fee structure, for any such expansion of services or addition of a Program. Except as otherwise expressly provided in this Agreement, all fees are non-refundable.
5.1Definition. In the course of performing duties under this Agreement, each party may obtain Confidential Information (as defined below) from the other party. The party disclosing Confidential Information is the "Disclosing Party" and the party receiving Confidential Information is the "Receiving Party." "Confidential Information" means any and all technical and non-technical proprietary information provided by the Disclosing Party to the Receiving Party, whether disclosed orally or in writing, and includes all information regarding (a) the terms of this Agreement, and (b) any information regarding the Products not disclosed in marketing materials. "Confidential Information" does not include information or data that the Receiving Party can show by credible evidence: (i) was in the public domain at the time it was communicated to Receiving Party; (ii) entered the public domain subsequent to the time it was communicated to Receiving Party through no fault of Receiving Party; (iii) was in Receiving Party's possession not in violation of any obligation of confidentiality at the time it was communicated to Receiving Party; (iv) was disclosed to Receiving Party not in any violation of any obligation of confidentiality; or (v) was independently developed by employees or agents of Receiving Party without use of or reference to the Confidential Information of the Disclosing Party. 5.2Restrictions on Use and Disclosure. The Receiving Party agrees to hold the Confidential Information of the Disclosing Party in confidence, using the same degree (but no less than a reasonable degree) of care and protection that it uses to protect its own proprietary information, both during and after the Term of this Agreement. The Receiving Party agrees not to use the Confidential Information for any purpose other than as necessary to fulfill its obligations or exercise its rights under this Agreement and agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. Notwithstanding anything contained herein to the contrary, the Receiving Party may disclose Confidential Information pursuant to an order of a court of competent jurisdiction or as otherwise required by applicable law. Under such circumstances the Receiving Party will, if reasonably possible under the circumstance of such disclosure, provide the Disclosing Party with advance notice of such disclosure in order to afford the Disclosing Party an opportunity to take legal action to prevent or limit the scope of such disclosure, and will cooperate with the Disclosing Party in connection therewith.
6. Limited Warranty and Disclaimer
6.1Subject to the terms and conditions of this Agreement, TRUSTe warrants that where the Data is used for the purposes for which it is designed, and in accordance with user instructions, Client's purposes as stated in Exhibit A and TRUSTe's instructions provided to Customer from time to time, that it will perform in compliance with Section 1, above; provided, however, that this is a limited warranty only, and will not apply to any error caused by any event, circumstance or development outside of TRUSTe's reasonable control. TRUSTe disclaims all other warranties or conditions, either express or Implied, including but not limited to, warranties or conditions of merchantability, or fitness for a particular purpose. 6.2The preceding warranty will not apply if: (i) the Data is not used in accordance with this Agreement; (ii) the Data or any part thereof has been modified by any entity other than Client without the express written consent of TRUSTe; or (iii) a inaccuracy in the Data has been caused by any of Client's business activities which are inconsistent with the Data. 6.3CLIENT'S SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH OF THE ABOVE WARRANTY SHALL BE LIMITED TO THE REFUND ANY PRE-PAID BUT UNUSED FEE AMOUNTS. LICENSOR DOES NOT WARRANT THAT THE OPERATION OF THE DATA WILL BE ERROR-FREE. TRUSTE DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. 6.4CLIENT REPERESENTS AND WARRANTS THAT USE OF TRUSTE'S DATA DOES NOT CONSTITUTE COMPLIANCE WITH ANY APPLICABLE LAW, STATUTE, ORDINACE, OR REGULATION. CLIENT SHALL HAVE A CONTINUING OBLIGATION TO COMPLY WITH ALL APPLICABLE LAWS RELATING TO DATA COLLECTION, USE, AND DISCLOSURE.
7. Limitation of Liability
Regardless of the basis of recovery claimed, whether under contract, negligence, strict liability or other theory, TRUSTe's aggregate liability with respect to any and all subject matter of the Agreement or any attachment or order placed under its terms will be limited to (A) indemnification payments referred to in Section 9 below, and (B) the amount of any other direct damages or loss up to the amount of any pre-paid unused fees paid by Client for the Data giving rise to the liability. TRUSTE SHALL NOT BE LIABLE FOR LOSS OF OR DAMAGE TO RECORDS OR DATA; COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; ANY MATTER BEYOND ITS REASONABLE CONTROL; AND ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, EVEN IF TRUSTE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT ACKNOWLEDGES AND AGREES THAT THE LIMITATION OF THIS SECTION 7 AND OF SECTION 6 ABOVE ARE ESSENTIAL ELEMENTS OF THE AGREEMENT BETWEEN THE PARTIES AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE PRICES AND TERMS SET FORTH IN THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
8.1TRUSTe shall defend and hold Client harmless from any claim by a third party that the Data infringes any trademark or copyright of that third party, provided: (i) TRUSTe is promptly notified of the claim; (ii) TRUSTe receives reasonable cooperation from Client necessary to perform TRUSTe's obligations hereunder; and (iii) TRUSTe has sole control over the defense and all negotiations for a settlement or compromise. The foregoing obligation of TRUSTe does not apply with respect to Data or portions or components thereof: (i) not supplied by TRUSTe; (ii) used in a manner not expressly authorized by this Agreement (iii) made in accordance with Client's specifications; (iv) modified by Client, if the alleged infringement relates to such modification; (v) combined with other products (hardware or software), processes or materials where the alleged infringement would not exist but for such combination; or (vi) where Client continues the allegedly infringing activity after being notified thereof and provided modifications that would have avoided the alleged infringement. 8.2In the event the Data is held by a court of competent jurisdiction to constitute an infringement, TRUSTe shall undertake the following: (i) procure for Client the right to continue use of the Data; (ii) modify the Data so that its use becomes non-infringing; (iii) substitute the Data with data which is substantially similar in functionality and performance. 8.3Client will defend, indemnify and hold TRUSTe and its officers, directors, employees, agents, subsidiaries and affiliates harmless from and against any and all damages arising out of or relating to third party claims based on Client's actual or alleged: (i) gross negligent acts or omissions, willful misconduct or fraud in connection with this Agreement; and/or (ii) violation of any statute, law, ordinance or regulation. Client will further defend, indemnify and hold TRUSTe and its officers, directors, employees, agents, subsidiaries and affiliates harmless from and against any and all Damages arising out of or relating to Client's use of the TRUSTe Mark(s) other than in accordance with this Agreement.
9. Term and Termination
9.1The initial and renewal terms of this Agreement shall be annually from the Effective Date of this Agreement. 9.2Termination for Convenience. Either party may terminate this agreement anytime after the initial term by providing the other party with 30 days advance written notice. There shall be no refund of any pre-paid but unused fees. 9.3Any obligations to pay fees incurred under Section 4 prior to termination and the provisions of Sections 2, 3, 5, 8, and 9 shall survive termination of the Agreement for any reason. The Confidentiality provisions of Section 6 shall survive for a period of 3 years after termination of the Agreement. 9.4Upon termination of this Agreement, Client shall cease using the Data immediately.
This Agreement is the entire agreement between Client and TRUSTe relating to Data Service and supersedes all prior, contemporaneous, or other oral or written communications, proposals, and representations with respect to its subject matter. No modification to this Agreement is binding unless in writing and signed by a duly authorized representative of each party. The waiver or failure of either party to exercise any right provided for herein shall not be deemed a waiver of any further right hereunder. If any provision of this Agreement is held invalid, all other provisions shall remain valid unless such validity would frustrate the purpose of this Agreement, and this Agreement shall be enforced to the full extent allowable under applicable law. Neither party may assign, except to a successor, its rights, duties or obligations under this Agreement without the prior written consent of the other party and any attempt to do so shall be void and of no effect. All provisions of license grant, proprietary rights, and indemnification shall survive termination or expiration of this Agreement. This Agreement shall be governed by and construed under the laws of the State of California without regard to conflicts of law provisions thereof. IN WITNESS WHEREOF, TRUSTe and Client have duly executed this Agreement intending to be bound thereby.
TRUSTe Master License and Services Agreement
1. ACCEPTANCE OF TERMS. This TRUSTe Master License and Services Agreement ("Agreement") for TRUSTe products and services (referred to collectively as "Services" or "Programs" in this document) is by and between True Ultimate Standards Everywhere, Inc. (a Delaware corporation) ("TRUSTe") and you, your heirs, agents, successors and assigns ("You") (collective "Parties"), and is made effective as of the date of electronic execution. This Agreement sets forth the terms and conditions of Your use of TRUSTe Services and explains TRUSTe's obligations to You and Your obligations to TRUSTe in relation to the Services You purchase. This Agreement, any additional TRUSTe policies, applicable Program Amendment, ("Program Amendment"), which shall hereby be incorporated by reference, and modifications thereto, constitute the complete and exclusive agreement between You and TRUSTe concerning Your use of TRUSTe's Services, and supersede and govern all prior proposals, agreements, or other communications. You agree that TRUSTe may provide you with any communications, including, but not limited to, any agreements or amendments thereto, billing or account statements, disclosures, notices, responses to claims, transaction history, privacy policies, and all other information related to the Services outlined in this Agreement ("Communications") in electronic format. TRUSTe may provide all Communications in electronic format either: i) via e-mail, ii) by access to a Web Site that TRUSTe will designate in an e-mail notice sent to You; or iii) by requesting that You download a PDF file containing the Communication. An electronic version of this Agreement may be printed by selecting 'File', then selecting 'Print' from Your browser's menu. You may withdraw Your consent to receive Communications in electronic form, request to receive a paper copy of this Agreement, or notify TRUSTe of a change in Your e-mail address by contacting us at [email protected] If you withdraw your consent to receive electronic communications, TRUSTe reserves the right to terminate this agreement for convenience. By clicking on the checkbox associated with this Agreement, You agree to the terms and conditions herein.
2. Definitions and Interpretation. Capitalized terms not defined herein (including the list of definitions in Exhibit 1 hereto) shall have the meaning ascribed to them in the Applicable Program Requirements. Unless specifically stated otherwise, references to "Sections" used in this Agreement refer to sections in this Agreement and references to "Sections" in the Program Amendment refer to sections in such Program Amendments.
3. Programs and Fees.
- (a) Programs. In order to become a participant in one or more Programs, You must enter into individual program amendments to this Agreement (each a "Program Amendment"). Each Program Amendment covers one of the Programs, and the terms and conditions of this Agreement apply to each Program Amendment. Where a Program Amendment and this Agreement are in conflict, the Program Amendment shall control.
- (b) Fees. You shall pay the initial and ongoing fees as required by each Program Amendment ("Fees").
- (c) Acceptance into a Program. Final acceptance into a Program, and the effectiveness of any License Grant, shall be governed by each Program Amendment and Applicable Program Requirements.
- (d) TRUSTe References to Participation in Program. After enrollment by You in a Program and certification of You by TRUSTe, it shall be public information that You is a participant in the TRUSTe Program(s) and has entered into this Agreement with TRUSTe. TRUSTe may make references to You and Your URL in TRUSTe's current list of participants located on the TRUSTe Web Site and corporate documentation (such as annual reports). TRUSTe may also respond to any inquiry regarding whether You participates in a Program. With Your prior permission, TRUSTe may make references to You and Your Trademarks on promotional materials and related collateral marketing materials created during the term of this Agreement.
4. Your Adherence to the Program.
- (a) Your Obligation to Comply. You shall fully comply with the Applicable Program Requirements for each Program Amendment.
- (b) Amendments to the Program Requirements. The Parties agree that TRUSTe may, from time to time, amend the Applicable Program Requirements in its discretion upon twenty (20) business days' prior written notice to You. Upon receipt of such notice, You may terminate the applicable Program Amendment by providing written notice to TRUSTe within said twenty (20) business day period.
5. Use and Ownership of Applicable TRUSTe Mark(s).
- (a) General. Each of the Programs is different and not every Program has a TRUSTe Mark associated with it. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 4(b), NO RIGHT TO USE THE TRUSTe NAME OR ANY OF THE TRUSTe MARK(S) IS GRANTED HEREUNDER.
- (b) License Grant. Subject to the terms and conditions of this Agreement, TRUSTe grants to You a non-exclusive, non-transferable, worldwide license to publicly display the Applicable TRUSTe Mark(s); provided, however, a Program Amendment is required in order to activate the License Grant with respect to a particular TRUSTe Mark; and the Applicable TRUSTe Mark(s) shall be identified in each Program Amendment (the "License Grant"). You may not sublicense the use of the Applicable TRUSTe Mark(s).
- (c) Use of Applicable TRUSTe Mark(s). You agrees that: (i) You shall do nothing inconsistent with TRUSTe's ownership of the Applicable TRUSTe Mark(s) during the term of this Agreement; (ii) all use of the Applicable TRUSTe Mark(s) by You shall inure to the benefit of TRUSTe; (iii) You shall take no action that shall interfere with or diminish TRUSTe's right in the TRUSTe Mark(s); and (iv) You shall use the Applicable TRUSTe Mark(s) so as to create a separate and distinct impression from any other service mark or trademark that might be used by You. You may not use or reproduce any Applicable TRUSTe Mark(s) in any manner other than as described in this Agreement, the applicable Program Amendment, or the TRUSTe Seal Implementation Guidelines.
- (d) Non-Alteration. As part of its licensed display of the Applicable TRUSTe Mark(s), You shall display the Applicable TRUSTe Mark(s) in accordance with the then applicable Seal Implementation Guidelines, as provided to You by TRUSTe. In no instance shall You display any Applicable TRUSTe Mark(s) such that the display of the Applicable TRUSTe Mark(s) will either inhibit TRUSTe's ability to exercise its rights or be deemed deceptive.
- (e) Warranty and Disclaimer. The Applicable TRUSTe Mark(s) is licensed "AS IS" with no warranty of any kind. TRUSTe disclaims all express and implied warranties, including the implied warranties of merchantability and fitness for a particular purpose or use.
6. Term and Termination; Additional TRUSTe Remedies.
- (a) Term. Unless terminated earlier pursuant to Section 5 of this Agreement, this Agreement shall automatically terminate six (6) months following the termination of all Program Amendments, unless the Parties enter into at least one new program Amendment within such six (6) month period. Termination of this Agreement shall terminate all Program Amendments
- (b) Termination for Non-Certification; Right to Decline. During the Program certification process (as required by a Program Amendment), in the event that TRUSTe does not approve the You Program Materials for the Applicable Program and You does not agree to modify the You Program Materials and/or other relevant policies and practices in a manner that fully addresses TRUSTe's commercially reasonable objections, You shall have the right to terminate the Program Amendment within twenty (20) business days of receiving TRUSTe's objections with respect to the You Program Materials.
- (c) Termination for Cause with Right to Cure.
- (i) Either Party may terminate this Agreement or a Program Amendment upon twenty
(20) business days' prior written notice ("Notice of Termination") to the
other of a material breach by the other Party of this Agreement and/or a Program
Amendment(s) (which shall include breaches of Applicable Program Requirements),
unless the breach is corrected within the same twenty (20) business day period ("Cure
Period"). Within the Cure Period, the breaching Party shall:
- (A) In the case of TRUSTe, correct the breach to Your commercially reasonable satisfaction within the Cure Period, and, in the case of You, correct the breach to TRUSTe's commercially reasonable satisfaction; or
- (B) Take no action, in which case the applicable Program Amendment and/or this Agreement will terminate without further action.
- (ii) For purposes of this Section 5(c), material breaches include but are not limited to: (A) a Party's material breach of any representation or warranty contained in this Agreement, a Program Amendment or any You Program Materials; (B) Your use of the TRUSTe Mark(s) in a manner materially inconsistent with the License Grant; (C) Your challenge to TRUSTe's ownership of the TRUSTe Mark(s) or the validity of the TRUSTe Mark(s); (D) Your continual, intentional, and material failure to adhere to the Applicable Program Requirements; (E) Your material failure to permit or cooperate with a TRUSTe investigation or review of Your Web site or practices pursuant to the Program Requirements; (F) Your continual, intentional, and material failure to comply with any Suspension Obligations; (G) Your material failure to cooperate with TRUSTe regarding an audit, complaint or the compliance monitoring activities of TRUSTe; or (H) any deceptive trade practices of either Party.
- (i) Either Party may terminate this Agreement or a Program Amendment upon twenty (20) business days' prior written notice ("Notice of Termination") to the other of a material breach by the other Party of this Agreement and/or a Program Amendment(s) (which shall include breaches of Applicable Program Requirements), unless the breach is corrected within the same twenty (20) business day period ("Cure Period"). Within the Cure Period, the breaching Party shall:
- (d) Termination By Either Party for Any Reason. Either Party may terminate this Agreement or a Program Amendment at any time upon twenty (20) business days' prior written notice for any reason ("Termination for Convenience"), provided that You may not terminate this Agreement or a Program Amendment under this Section 5(d) while it is curing a material breach pursuant to written notice from TRUSTe, or while You are under Suspension.
- (e) Effect of Termination. Upon termination of this Agreement or a Program
Amendment, You shall:
- (i) cease all use of the Applicable TRUSTe Mark(s) and remove them from all locations where they have been placed by You or its third party providers;
- (ii) cease all references to Your participation in the Programs covered by the terminated Program Amendments; and
- (iii) comply with all post-termination obligations required by each terminated Program Amendment.
- (f) Remedies Not Limiting. The remedies provided in this Section 5 are in no way limiting of one another or of any other rights and remedies granted to TRUSTe under this Agreement or the Applicable Program Requirements. TRUSTe may choose to, but is not required to, place You on Suspension in lieu of terminating You for cause or taking other appropriate action.
- (g) Survival. Sections 5(e), 5(f), 7, 8, 9, 10, and 11, this "Survival" provision, and all post-termination obligations contained in the Applicable Program Requirements shall survive termination of this Agreement regardless of the manner in which this Agreement was terminated.
7. Representations and Warranties.
- (a) Each Party represents, warrants and covenants, as applicable, to the other Party
- (i) It has all right, title and authority to enter into this Agreement.
- (ii) Its execution of this Agreement and its engagement hereunder do not constitute a breach of any contract, agreement or understanding, oral or written, to which it is a Party or by which it is bound.
- (iii) It is not the subject of an allegation, of which it has been notified by any known Authority in any country, including without limitation the Attorney General of any state, the United States Federal Trade Commission (FTC), any law enforcement agency or any foreign privacy authority, of the misuse of Personally Identifiable Information.
- (b) You further represents, warrants and covenants, as applicable, to TRUSTe that:
- (i) To the best of Your knowledge, all information provided in writing by You to TRUSTe is true, accurate and complete as of the date of delivery to TRUSTe
- (ii) You will not display any of the TRUSTe Mark(s) on any Web site that is, or offers any service or product that is, misleading, unlawful, or violative of the rights of third parties.
- (iii) You represents that it understands that its participation in, and compliance with, any Program does not constitute specific compliance with any law or regulation. You represents that it understands that it has an independent duty to comply with any and all laws and regulations.
- (iv) You represents that it has not modified the form or content of this Agreement from the form and content of the Agreement provided to it by TRUSTe.
- (a) Indemnification by TRUSTe. TRUSTe will defend, indemnify and hold You and its officers, directors, employees, agents, subsidiaries and affiliates harmless from and against any and all claims, losses, liabilities, damages, judgments, awards, expenses, actions, lawsuits and costs, including, without limitation, reasonable attorneys' fees ("Damages"), arising out of or relating to third party claims based on TRUSTe's actual or alleged (i) gross negligent acts or omissions, willful misconduct, or fraud in connection with this Agreement; (ii) infringement of a third party's trademark rights; and/or (iii) violation of any statute, law, ordinance or regulation, provided, that You complies with the indemnification procedures of Section 7(c) below. THE FOREGOING IS PARTICIPANT'S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS OF ANY KIND.
- (b) Indemnification by You. You will defend, indemnify and hold TRUSTe and its officers, directors, employees, agents, subsidiaries, resellers, and affiliates harmless from and against any and all Damages arising out of or relating to third party claims based on Your actual or alleged: (i) gross negligent acts or omissions, willful misconduct, or fraud in connection with this Agreement; (ii) violation of any statute, law, ordinance, or regulation; and/or (iii) information collection, disclosure, and use practices related to the, provided that TRUSTe complies with the indemnification procedures of Section 7(c) below. You will further defend, indemnify and hold TRUSTe and its officers, directors, employees, agents, subsidiaries, and affiliates harmless from and against any and all Damages arising out of or relating to Your use of the TRUSTe Mark(s) (except for claims that the TRUSTe Mark(s) infringes upon the intellectual property rights of a third party).
- (c) Indemnification Procedures. With respect to a Party's obligation to indemnify (the "Indemnifying Party") the other Party (the "Indemnified Party"): (i) the Indemnified Party shall provide prompt written notice of any such claim, action or demand; (ii) the Indemnified Party shall allow the Indemnifying Party to control the defense and related settlement negotiations, provided, however, that the Indemnified Party shall have the right to participate in such defense with counsel of its own choosing at the Indemnifying Party's expense; (iii) the Indemnified Party shall provide the Indemnifying Party, at the Indemnifying Party's request, with reasonable assistance in the defense of such claim, action or demand, so long as the Indemnifying Party reimburses the Indemnified Party for the Indemnified Party's reasonable out-of-pocket expenses associated therewith; and (iv) the Indemnifying Party shall not settle a claim in a manner that causes the Indemnified Party to incur unindemnified liability, take action, or suffer other injury, without the Indemnified Party's written consent, which consent shall not unreasonably be withheld. The Indemnifying Party shall not be relieved of its indemnification obligations herein for the Indemnified Party's failure to comply with such requirements, except to the extent that the Indemnifying Party has been prejudiced by the Indemnified Party's actions or inactions.
9. Consequential Damages Waiver. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS OF THE PARTIES CONTAINED IN SECTIONS 7(a) AND 7(b), CONFIDENTIALITY OBLIGATIONS OF THE PARTIES CONTAINED IN SECTION 10, AND DAMAGES RESULTING FROM PARTICIPANT'S BREACH OF THE TRADEMARK OR OTHER INTELLECTUAL PROPERTY LICENSE PROVISIONS OF THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FROM LOST PROFITS, LOST USE, DAMAGE TO GOODWILL OR ANY OTHER THEORY EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Limitation of Liability. Except for the following, neither Party shall be liable to the other Party on any claim arising under or relating to this Agreement or any Program Amendment for an amount greater than the amount of Fees actually paid by You to TRUSTe under the Program Amendment which gave rise to the claim:
- (a) the indemnification obligations and Damages associated therewith contained in Sections 7(a) and 7(b);
- (b) damages arising from or relating to gross negligence or willful misconduct; and
- (c) damages resulting from breaches of the confidentiality requirements of this Agreement, except that such direct damages shall be capped at the greater of a multiple of five (5) times the Fees paid by You to TRUSTe within the twelve (12) months prior to the action giving rise to the claim, or TRUSTe's insurance coverage for such breach of confidentiality.
11. Receipt of Confidential Information.
- (a) Confidentiality. Each Party agrees to maintain the confidentiality of Confidential Information of the other Party, using not less than the measures that Party uses for its own confidential information of similar type, and not to disclose such information to any person except its officers, employees or subcontractors, who have a need to know in order to comply with the obligations of this Agreement. Each Party's officers, employees and subcontractors shall be bound by the terms of this Section 10(a) or a similar written agreement with terms no less protective of Your Confidential Information than this Agreement. The Parties agree that a Party is entitled to injunctive relief as a remedy for any breach of this Section 10(a). Nothing in this Section shall prohibit TRUSTe from disseminating aggregated information that contains no identifiable You Confidential Information.
- (b) Limitation. Notwithstanding the provisions of this Section 10, TRUSTe may disclose You Confidential Information, which includes Personally Identifying Information in accordance with a judicial or other governmental subpoena, warrant or order; provided that TRUSTe shall comply with any applicable protective order or equivalent and, unless prohibited by law, TRUSTe will employ commercially reasonable efforts to provide You with five (5) business days' prior written notice so that You has an opportunity to intervene to protect the confidentiality of its information.
- (a) Governing Law; Jurisdiction; Venue; Attorneys' Fees. This Agreement shall be construed in accordance with, and governed by, the laws of the State of California, except for that body of law addressing conflicts of law. The Parties hereby consent to exclusive venue and jurisdiction for actions concerning or relating to this Agreement in the federal or state courts of the principle place of business of the defending Party. In any action to interpret or enforce this Agreement, the prevailing Party shall be awarded all court costs and reasonable attorneys' fees it incurs.
- (b) Assignments; Subcontractors.
- (i) You may assign its rights and obligations under this Agreement or a Program Amendment provided that: (A) the assignee takes subject to all of the obligations of the You under the Program Amendment (including the obligations of this Agreement); (B) TRUSTe is notified in writing within thirty (30) days of such assignment; and (C) the assignee is the Owner of the web page (and related pages) displaying the Applicable TRUSTe Mark(s) as well as the product or service that is covered by the applicable Program Amendment.
- (ii)Except as provided for in Section 11(b)(i), You may not assign or transfer, indirectly or directly (including without limitation by merger or operation of law), any of its rights or delegate any of its duties under this Agreement or under a Program Amendment without the prior written consent of TRUSTe.
- (c) Entire Agreement; Waiver; Relationship of the Parties. This Agreement and the Schedule(s), appendices and exhibits hereto constitute the entire Agreement between the Parties as to the subject matter hereof, and supersede all prior and/or contemporaneous agreements, representations and understandings between them, except as may be expressly incorporated by reference into this Agreement. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Parties. Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, agency or employment relationship between the Parties, and neither Party shall have any right to bind the other or incur any obligation on the other's behalf without the other's prior written consent. Except as expressly provided for herein, this Agreement is not for the benefit of any third party, but nothing in this Agreement shall prevent or interfere with any consumer bringing an action against You for violation of law.
- (d) Amendment. Except for amendments to the Program Requirements, as provided for herein, this Agreement shall not be changed, modified, or amended except by a writing signed by both Parties.
- (e) Force Majeure. Neither Party shall be liable (except for nonpayment) for interruptions, delays, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof caused or occasioned by, or due to any cause beyond either Parties' commercially reasonable control. The Party so delayed or prevented from performing shall exercise commercially reasonable efforts to remedy any such cause of delay or cause preventing performance.
- (f) Notices to You and You Contact Information. Except as otherwise provided
herein with respect to TRUSTe's right to provide notice via email, all notices required
to be given to You under this Agreement must be given in writing and delivered either
in hand (in which case delivery shall be effective as of the delivery date), by
certified mail, return receipt requested, postage pre-paid (in which case delivery
shall be effective three (3) days after mailing), or by Federal Express or other
recognized overnight delivery service (in which case delivery shall be effective
the day following remittance to the delivery service), all delivery charges pre-paid,
and addressed to the Designated You Coordinator identified under the Your signature
PARTICIPANT ACKNOWLEDGES THE REQUIREMENT TO MAINTAIN THE DESIGNATED PARTICIPANT COORDINATOR'S EMAIL ACCOUNT. PARTICIPANT EXPRESSLY CONSENTS TO RECEIPT OF NOTIFICATION BY EMAIL OF THE FOLLOWING: (i) AMENDMENTS TO THE PROGRAM REQUIREMENTS AS PROVIDED FOR UNDER SECTION 3(b); AND (ii) NOTIFICATION OF SUSPENSION STATUS AS PROVIDED FOR UNDER SECTION 5(f)(i). PROVIDED THAT TRUSTe MAINTAINS AN ELECTRONIC RECORD OF SENDING SUCH AN EMAIL NOTIFICATION, PARTICIPANT WAIVES ANY RIGHT TO CONTEST ACTIONS TAKEN BY TRUSTe UNDER SECTIONS 3(b) AND 5(f)(i) BASED ON THE ASSERTION THAT THE EMAIL ADDRESS IS NOT VALID OR OPERATIONAL, OR THAT THE EMAIL NOTIFICATION WAS NOT RECEIVED.
- (g) Notices to TRUSTe. Except as otherwise provided, all notices and acknowledgments
required to be given to TRUSTe under this Agreement must be given in writing and
delivered either in hand (in which case delivery shall be effective as of the delivery
date), by certified mail, return receipt requested, postage pre-paid (in which case
delivery shall be effective three (3) days after mailing), or by Federal Express
or other recognized overnight delivery service (in which case delivery shall be
effective the day following remittance to the delivery service), all delivery charges
pre-paid, and addressed.
Attn: Legal Department
55 2nd Street, 2nd Floor
San Francisco, CA 94105
Exhibit 1 - Definitions
The following definitions apply to all TRUSTe Programs. All definitions are not used for every Program.
1. "Action" means any investigation, demand, suit, legal proceeding, or other
legal action, initiated by any individual or entity, including any state or federal
governmental authority, which may end in a legally enforceable judgment by a court
of competent jurisdiction.
2. "Applicable TRUSTe Mark(s" means those TRUSTe Mark(s) identified in a Program Amendment executed by the Parties.
3. "Applicable Programs" means one or more Programs covered by Program Amendments executed by the Parties.
4. "Applicable Program Requirements" means the Program Requirements that cover the Applicable Programs.
5. "Authority" means a government entity having jurisdiction over the Your trade and/or privacy practices, including without limitation the Attorney General of any state, the United States Federal Trade Commission, any law enforcement agency or any foreign privacy authority.
6. "Confidential Information" means information concerning a Party's business not generally known to the public that has been marked as confidential by the disclosing Party prior to its disclosure to the receiving Party. By way of illustration only, Confidential Information may include trade secrets, know-how, inventions, draft privacy statements and disclosures, techniques, processes, algorithms, software programs, schematics, software source documents, contracts, customer lists, financial information, sales and marketing plans, information and business plans and other proprietary information, provided, however, that such information is marked as confidential. Confidential Information shall not include, even if it is marked as such, information that: (i) is already known to the receiving Party at the time of disclosure, which knowledge the receiving Party shall have the burden of proving; (ii) is, or, through no act or failure to act of the receiving Party, becomes publicly known; (iii) is readily observable and / or duplicable by the public; (iv) is legally received by receiving Party from a third party without restriction on disclosure; (v) is independently developed by receiving Party without reference to the Confidential Information of the disclosing Party; or (vi) is approved for release by written authorization of the disclosing Party.
7. "Internet" means the worldwide network of computers commonly referred to as the Internet.
8. "Notice of Action" means notice to TRUSTe, in compliance with the notice requirements of Section 11(f), which shall include, notification to TRUSTe of the Action, the name of the Authority, the status of the Action, within twenty (20) business days of learning of such Action
9. "Owner" means that the Party holds title to and is in control of the object in question.
10. "Privacy Statement" means the statements of Your information practices posted on its Web site(s), as such practices are updated from time to time. Your Privacy Statement includes, but is not limited to: (a) a single, comprehensive statement of all Your information practices ("Comprehensive Privacy Statement"); (b) a short notice, summary notice, or disclosure of specific information practices posted at the point of information collection or elsewhere, provided that You also posts a Comprehensive Privacy Statement; and/or (c) a P3P Statement.
11. "Program" means a certification program administered by TRUSTe. The TRUSTe Programs are found at www.truste.org.
12. "Program Requirements" means those requirements, conditions or other terms applicable to You under a TRUSTe Program, as such requirements are amended from time to time.
13. "TRUSTe Mark(s)" means collectively the registered certification marks and trademarks of TRUSTe.
14. "TRUSTe Name" means the name "TRUSTe".
15. "TRUSTe Web Site" means the Internet Web site located at https://www.truste.com.
16. "URL" means Universal Resource Locator.
Program Amendment to Master License and Services Agreement
This TRUSTe Program Amendment is entered into by You, in conjunction with the Master License and Services Agreement (which is specifically identified on the signature page hereto) ("Agreement") and all the terms of the Agreement are hereby incorporated by reference. Capitalized terms not defined herein shall have the meaning ascribed in the Agreement or the Program Requirements, as applicable.
You agree that TRUSTe may provide you with any communications, including, but not limited to, any agreements or amendments thereto, billing or account statements, disclosures, notices, responses to claims, transaction history, privacy policies, and all other information related to the Services outlined in this Agreement ("Communications") in electronic format. TRUSTe may provide all Communications in electronic format either: i) via e-mail, ii) by access to a Web Site that TRUSTe will designate in an e-mail notice sent to You; or iii) by requesting that You download a PDF file containing the Communication. An electronic version of this Agreement may be printed by selecting 'File', then selecting 'Print' from Your browser's menu. You may withdraw Your consent to receive Communications in electronic form, request to receive a paper copy of this Agreement, or notify TRUSTe of a change in Your e-mail address by contacting us at [email protected] If you withdraw your consent to receive electronic communications, TRUSTe reserves the right to terminate this agreement for convenience. By clicking on the checkbox associated with this Agreement, You agree to the terms and conditions herein.
1. Additional Definitions. The following definitions apply to this Amendment:
a. "Applicable TRUSTe Mark(s)" means those marks attached hereto in Exhibit A.
b. "Program Requirements" means the Privacy Program Requirements, which are attached hereto as Exhibit B.
c. "You Program Materials" for the Privacy Program shall include the Privacy Statement and any other documentation required by and relied upon by TRUSTe.
2. Program. You hereby requests to participate in the Privacy Program and, upon completion of the application and acceptance process set forth in Section 4 below, agrees that it shall be bound by the Program Requirements.
3. Term. This Amendment shall be terminated only by action of the Parties pursuant to Section 5 of the Agreement.
4. Application Process. You shall (a) follow the application process described on the TRUSTe Web Site, or (b) submit the license fee, the current Privacy Statement, and all other requested You Program Materials to TRUSTe for review and acceptance in TRUSTe's sole discretion pursuant to the Program Requirements.
5. Use of the Applicable TRUSTe Mark(s). You are entitled to display the Applicable TRUSTe Mark(s) on the properties listed in Annex 1, pursuant to Section 4(b) of the Agreement, and in accordance with TRUSTe's. seal usage guidelines.
6. Recertification. You shall submit the Fees and shall re-submit its properties listed in Annex 1 for re-certification in accordance with the You Responsibilities Section of the Program Requirements, annually.
7. Children's Privacy Seal Program Requirements. If any of Your properties listed in Annex 1 are directed at and collect Personally Identifiable Information from children under the age of thirteen (13), or if any section of Your properties listed in Annex 1 is directed at and collects Personally Identifiable information from children under the age of thirteen (13), or if You has actual knowledge that it is collecting or maintaining Personally Identifiable Information from children under the age of thirteen (13) through its properties listed in Annex 1, You shall participate in a FTC approved COPPA Safe Harbor program.
8. Notice To TRUSTe Of Certain Events. You shall notify TRUSTe in writing, at the same time that such information becomes publicly known, or within ten (10) business days of the event, whichever is sooner, of:
a. A change in Your name (other than an assignment); or
b. A change of name for the properties listed in Annex 1.
9. Additional Representations and Warranties. In additions to the representations and warranties of Section 6 of the Agreement, You further represents and warrants to TRUSTe as of the Effective Date, and as long as this Program Amendment is in force, that:
a. You is the Owner of the properties listed in Annex 1;
b. The Privacy Statement(s) and any other You Program Materials provided by You to TRUSTe constitute true, accurate and complete representations of the privacy practices adopted by You and are in effect as of the date of their delivery to TRUSTe, or as of the date of any amendment submitted by You; and
10. Termination Obligations. Upon termination of this Program Amendment, pursuant to Section 5 of the Agreement, in addition to all other obligations imposed by the Agreement, You shall:
a. continue to comply with its Privacy Statement until it has posted a notification on the properties listed in Annex 1 or otherwise notified users of the properties listed in Annex 1 of a change to its Privacy Statement and its withdrawal from the Privacy Program; and
b. treat Personally Identifiable Information and Third Party Personally Identifiable Information (as defined in the Privacy Program Requirements) collected while this Program Amendment is in force in accordance with Your Privacy Statement in effect at the time of collection.
Properties Subject to this Program Amendment:
Description of TRUSTe Mark(s)
The "TRUSTe Certified Privacy" word and logo mark in the following form, color, and size:
Exhibit B: Program Requirementshttps://www.truste.com/privacy-program-requirements/index.html