Last Updated: April 28, 2021
ARBITRATION NOTICE: YOU ARE BOUND BY THE ARBITRATION PROVISION SET FORTH LATER IN THESE BETA SERVICES TERMS. IF YOU ARE CONTRACTING WITH TRUST SOFTWARE, INC., THEN YOU AND TRUST SOFTWARE, INC. WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
“Account” means each account created in connection with your use of the Beta Services.
“Applicable Law” means applicable laws, statutes, ordinances, rules, public order rules, industry codes, and regulations.
“Beta License” means the limited, non-exclusive, non-transferable license granted by Trust to you to access and use the Beta Services for the sole purpose of testing and evaluating the Beta Services.
“Beta Period” means the date that Trust provides you access to the Beta Services until the date that either party terminates these Beta Services Terms pursuant to these Beta Services Terms.
“Personal Data” means any information relating to an identified or identifiable natural person (“Data Subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Intellectual Property Rights” means any registered or unregistered rights granted, applied for, or otherwise now or later in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual-property-rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Materials” means all content provided or approved by you or on your behalf in connection with the Beta Services, including any artwork, copy, photos, images, visual assets, trademarks, logos, service marks, email addresses, URLs, or any other intellectual property or content.
“Trust Intellectual Property” means all of Trust’s technology, inventions, discoveries, innovations, know-how, methods, processes, information, trademarks, software, documentation, and interfaces, including all improvements, modifications, works in process, derivatives, or changes, whether tangible or intangible, embodied in any form, and all related Intellectual Property Rights.
“Trust Data” means any data that is collected, received, or derived from your use of the Beta Services, including any data that is collected, received, or derived from any Materials you provide in connection with your use of the Beta Services.
“you” means the individual agreeing to these Beta Services Terms and any entity on whose behalf that individual is acting.
2. ACCOUNTS; ACCESS
You may be required to create and maintain an Account to use the Beta Services. Certain Beta Services allow you to create and manage sub-accounts under a single Account. You will be able to authorize individuals to access and use your Accounts. You are responsible for setting and revoking the access levels for your Accounts, and for providing and updating any information that Trust reasonably requests. You are responsible for all activity that occurs in your Accounts, including the actions of each individual with access to your Accounts.
3. BETA LICENSE
a. Scope of Use. Subject to the terms and conditions of these Beta Services Terms, Trust grants you the Beta License. You agree to test, use, and evaluate the Beta Services during the Beta Period. Nothing in these Beta Services Terms obligates Trust to commercially launch the Beta Services or to continue to offer you the features and functionality of the Beta Services.
b. Your Obligations. You agree to: (a) use and test as many features of the Beta Services as is reasonably possible; (b) test all fixes, changes, or updates that Trust releases; (c) provide Trust with feedback on the Beta Services and make recommendations for improving the functionality, features, operation, and use of the Beta Services; and (d) promptly stop testing and using the Beta Services when Trust asks.
c. Limited Customer Support. Trust will, in its discretion, provide new features, corrections, changes, and updates as they become available to help you test the Beta Services. Trust agrees to provide you with limited customer service to answer technical questions during the Beta Period. You understand that Trust makes no representations regarding response time to technical questions. All technical questions should be directed to firstname.lastname@example.org.
a. Services Restrictions. You will not: (i) copy the Beta Services or related documentation; (ii) translate or decompile, or create or attempt to create, by reverse engineering or otherwise, the source code form of the Beta Services; (iii) modify, adapt, translate, or create a derivative work from the Beta Services; (iv) remove any proprietary notices, labels, or marks on the Beta Services; (v) assign, sublicense, rent, or transfer any part of the Beta Services or access to the Beta Services, to any person or entity without Trust’s prior written consent; or (f) use the Beta Services on behalf of any third party or otherwise provide outsourcing, service bureau, time sharing, rental, or any other services to any third party.
b. Data Restrictions. You will not: (i) create compilations or combinations of Trust Data; (ii) commingle Trust Data with other data not derived from your use of the Beta Services ; (iii) disclose, sell, rent, transfer, or provide access to Trust Data to any affiliate, third party, ad network, ad exchange, advertising broker, or other advertising service; (iv) de-aggregate or de-anonymize, or attempt to de-aggregate or de-anonymize, Trust Data.
You may terminate these Beta Services Terms by deleting your Account, but these Beta Services Terms will remain effective until your use of the Beta Services ends. Trust may, in its sole discretion, revoke the Beta License, terminate these Beta Services Terms, and modify, suspend, terminate access to, or discontinue the availability of any Beta Services, at any time in its sole discretion without notice to you. All continuing rights and obligations under these Beta Services Terms will survive termination of these Beta Services Terms.
6. INTELLECTUAL PROPERTY RIGHTS
a. Ownership. You acknowledge and agree that Trust owns and retains all its interests in the Beta Services and all Trust Intellectual Property. These Beta Services Terms do not constitute a sale of the Beta Services and no proprietary rights to the Beta Services are transferred to the Licensee.
b. Feedback. You disclaim and assign to Trust any proprietary interest in the observations, ideas, feedback, and suggestions you offer during the Beta Period. Trust may incorporate any of your observations, ideas, feedback, and suggestions concerning the Beta Services into any of Trust’s technology, products, and services without compensation.
c. Injunctive Relief. You acknowledge that the Beta Services are a unique, confidential, and valuable asset and trade secret of Trust, and that Trust may seek all equitable and legal redress, including injunctive relief, if you breach these Beta Services Terms.
7. REPRESENTATIONS AND WARRANTIES
You represent and warrant that: (a) you have the full power and rights to perform your obligations under these Beta Services Terms; (b) you will comply with Applicable Law and these Beta Services Terms when using the Beta Services; (c) you are an entity validly existing and in good standing under the laws of your jurisdiction of incorporation or organization; (d) all information provided by you via the Beta Services is complete and accurate in all material respects; and (e) all Materials comply with these Beta Services Terms and Applicable Law, and you have all necessary licenses, rights, permissions, and clearances (including from any third parties) to use, and for Trust to use, the Materials, and to grant Trust all licenses described in these Beta Services Terms.
If you provide Trust with any Personal Data, you: (y) represent and warrant that you: (i) have all necessary rights and consents to: (1) disclose the Personal Data of each Data Subject; and (2) enable Trust to transfer the Personal Data outside the European Economic Area, if applicable; and (ii) have properly informed each Data Subject of the disclosure of their Personal Data; and (z) agree to Trust’s use of such Personal Data to fulfill Trust’s obligations under these Beta Services Terms.
You agree, to the extent permitted by Applicable Law, to indemnify, defend, and hold harmless Trust, its affiliates, directors, officers, stockholders, employees, licensors, and agents from and against any and all complaints, charges, claims, damages, losses, costs, liabilities, and expenses (including reasonable attorneys’ fees) due to, arising out of, or relating in any way to: (a) your actual or alleged breach of these Beta Services Terms; (b) your use of the Beta Services, or any products or services provided by a third party in connection with the Beta Services, even if recommended, made available, or approved by Trust; and (c) the actions related to the Beta Services of each individual with access to your Accounts.
Trust will promptly notify you in writing of any indemnification claim, but any failure to notify you will not relieve you from any indemnity liability or obligation you may have, except to the extent you are materially prejudiced by that failure. Trust will reasonably cooperate with you, at your expense, in connection with the defense, compromise, or settlement of any indemnification claim. You will not compromise or settle any claim in any manner, nor make any admission of liability, without Trust’s prior written consent, which Trust may provide in its sole discretion. Trust may participate (at its cost) in the defense, compromise, and settlement of the claim with counsel of its own choosing.
YOU ACKNOWLEDGE THAT THE BETA SERVICES ARE BEING PROVIDED TO YOU “AS IS.” YOU FURTHER ACKNOWLEDGE THAT THE BETA SERVICES LICENSED UNDER THESE BETA SERVICES TERMS ARE A BETA VERSION THAT TRUST HAS NOT YET COMPLETELY TESTED AND ARE BEING LICENSED WITH NO WARRANTY, EITHER EXPRESS OR IMPLIED. YOU USE THE BETA SERVICES AT YOUR OWN RISK. TRUST EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TRUST DOES NOT WARRANT THAT THE BETA SERVICES WILL BE OPERABLE OR THAT YOUR USE OF THE BETA SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE BETA SERVICES WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT.
10. LIMITATION OF LIABILITY
IN NO EVENT WILL Trust Software, Inc. BE LIABLE, UNDER ANY THEORY OF LIABILITY, FOR ANY LOST PROFITS (EVEN IF ADVISED THAT THOSE DAMAGES ARE POSSIBLE) OR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE BETA SERVICES TERMS OR THEIR SUBJECT MATTER, INCLUDING BUT NOT LIMITED TO, DAMAGES ARISING FROM LOSS OF DATA OR THE DISABLING OF THE BETA SERVICES. EXCEPT FOR BREACHES OF SECTIONS 6 OR 11, UNDER NO CIRCUMSTANCES WILL Trust Software, Inc.’s TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE BETA SERVICES EXCEED $100.00.
a. Confidential Information. You will maintain the strict confidentiality of the Beta Services and all information and materials contained in the Beta Services and all information and materials conveyed to you by Trust under these Beta Services Terms, including but not limited to, financial information, pricing information, marketing information, and the Beta Services’ features and modes of operation, inventions (whether or not patentable), techniques, processes, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, analysis and performance information, user documentation, and other technical information, plans, and data (collectively, the “Trust Proprietary Information”). This confidentiality obligation does not apply to information that enters the public domain through no act or omission of you or that was in your possession before you entered into these Beta Services Terms. You will not use the Trust Proprietary Information for any purpose other than to test the Beta Services as provided for in these Beta Services Terms.
b. Non-Disclosure. You will not disclose the Trust Proprietary Information to any third party and will not use the Trust Proprietary Information other than as expressly authorized in these Beta Services Terms. Furthermore, you: (i) recognize that the unauthorized use or disclosure of Trust Proprietary Information will give rise to irreparable injury to Trust for which monetary damages may be an inadequate remedy; and (ii) agree that Trust may seek and obtain injunctive relief against the breach or threatened breach of your obligations under these Beta Services Terms, in addition to any other legal and equitable remedies that may be available to Trust.
12. ARBITRATION; CLASS-ACTION WAIVER; JURY WAIVER
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU AND Trust Software, Inc. TO AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION.
a. Applicability of Arbitration Agreement. You and Trust Software, Inc. agree that all claims and disputes (whether contract, tort, or otherwise), including all statutory claims and disputes, arising out of or relating to these Beta Services Terms or the use of the Beta Services that cannot be resolved informally or in small claims court will be resolved by binding arbitration on an individual basis, except that you and Trust Software, Inc. are not required to arbitrate any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. To be clear: The phrase “all claims and disputes” also includes claims and disputes that arose between us before the effective date of these Beta Services Terms.
b. Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association (“AAA”) and will be governed by the AAA Consumer Arbitration Rules, available here as of the date of these Terms, or by calling the AAA at 1-800-778-7879. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Beta Services Terms. The arbitration will be conducted by a single neutral arbitrator. Any claims or disputes where the total amount sought is less than $10,000 USD may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount sought is $10,000 USD or more, the right to a hearing will be determined by the arbitral forum’s rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
c. Additional Rules for Non-appearance Arbitration. If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three; the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise.
d. Fees. If you choose to arbitrate with Trust Software, Inc., each party will be responsible for paying any filing, administrative, and arbitrator fees in accordance with the AAA’s Consumer Arbitration Rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees, and reasonable costs for expert and other witnesses.
e. Authority of the Arbitrator. The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of you and Trust Software, Inc. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under law, the arbitral forum’s rules, and these Beta Services Terms. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Trust Software, Inc.
f. Waiver of Jury Trial. YOU AND Trust Software, Inc. WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Trust Software, Inc. are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Trust Software, Inc. over whether to vacate or enforce an arbitration award, YOU AND Trust Software, Inc. WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
g. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in these Beta Services Terms.
h. Right to Waive. Any rights and limitations set forth in this arbitration agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this arbitration agreement.
i. Opt-out. You may opt out of this arbitration agreement. If you do so, neither you nor Trust Software, Inc. can force the other to arbitrate. To opt out, you must notify Trust Software, Inc. in writing no later than 30 days after first becoming subject to this arbitration agreement. Your notice must include your name and address, your Trust username and the email address you used to set up your Trust account (if you have one), and an unequivocal statement that you want to opt out of this arbitration agreement. You must either mail your opt-out notice to this address: Trust Software, Inc., ATTN: Arbitration Opt-out, 1207 4th Street, Suite 400A, Santa Monica, CA 90401, or email the opt-out notice to email@example.com.
j. Small Claims Court. Notwithstanding the foregoing, either you or Trust Software, Inc. may bring an individual action in small claims court.
k. Arbitration Agreement Survival. This arbitration agreement will survive the termination of your relationship with Trust Software, Inc.
13. EXCLUSIVE VENUE; CHOICE OF LAW
a. Exclusive Venue. To the extent that these Beta Services Terms allow you or Trust Software, Inc. to initiate litigation in a court, both you and Trust Software, Inc. agree that all claims and disputes (whether contract, tort, or otherwise), including statutory claims and disputes, arising out of or relating to the Beta Services Terms or the use of the Beta Services will be litigated exclusively in the United States District Court for the Central District of California. If, however, that court would lack original jurisdiction over the litigation, then all such claims and disputes will be litigated exclusively in the Superior Court of California, County of Los Angeles. You and Trust Software, Inc. consent to the personal jurisdiction of both courts.
b. Choice of Law. Except to the extent they are preempted by U.S. federal law, the laws of California, other than its conflict-of-laws principles, govern these Beta Services Terms and any claims and disputes (whether contract, tort, or otherwise) arising out of or relating to these Beta Services Terms or their subject matter.
a. Notices. Notices under these Beta Services Terms must be in writing and sent: (a) if to Trust, to Trust Software, Inc., 1207 4th Street, Suite 400A, Santa Monica, California 90401; with a copy to firstname.lastname@example.org, Attn: General Counsel; and (b) if to you, to the email address or street address you have provided via the Beta Services. Notices will be deemed given upon personal delivery, upon delivery if by mail, upon valid transmission through email, or 24 hours after the time the notice is posted to the Beta Services.
b. No Agency. These Beta Services Terms do not establish any agency, partnership, or joint venture between you and Trust.
c. References. References to a Section include all its subsections. The Section headings are for convenience only and will not affect how these Beta Services Terms are construed. Unless these Beta Services Terms refer specifically to “business days,” all references to “days” mean calendar days. The words “include,” “includes,” and “including” mean “including without limitation.”
d. Complete Agreement and Updates. Trust may update these Beta Services Terms at any time. You agree that Trust may notify you of any such updates via email, via posting the updates on the Beta Services, or via another method Trust reasonably selects. You agree to be bound by those updates if you access or use the Beta Services after those updates become effective. Except as otherwise set forth in these Beta Services Terms or unless expressly agreed in writing signed by Trust, nothing contained in any other agreement will in any way modify, supersede, or add any additional terms or conditions to these Beta Services Terms.
e. Non-Transfer. You will not sublicense, assign, delegate, or otherwise transfer these Beta Services Terms or any of the related rights or obligations established by these Beta Services Terms.
f. Waiver and Invalidity. A finding that any provision of these Beta Services Terms are invalid will not affect the validity of the rest of these Beta Services Terms. Waiving or failing to enforce a provision of these Beta Services Terms on one occasion will not be deemed to waive another provision or to waive that same provision in the future.