Last Updated: May 15, 2020
EFFECTIVE DATE; TERM
Term. We are not bound to provide or perform Services until we receive your acceptance of the Site Terms and there is a valid Master License Agreement, through which User is provided access to the Platform (the “Effective Date”). Upon the Effective Date, you will have access to the Platform and we will begin delivery of Services (the “Term”), unless otherwise terminated in accordance with these Site Terms or the Master License Agreement.
License. Pursuant to the License granted under the Master License Agreement, User is granted a license that is nonexclusive, nontransferable, and personal to User. Tenacity Cloud reserves all rights, including intellectual property rights, in the Platform and related materials (such as documentation, guides, training materials, and instructional materials). User shall use commercially reasonable security measures to prevent unauthorized access to and use of the Platform.
Restrictions on accessing the Services. You may not access the Services if You or Your products or services are competitive with Us or Our products or services, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
Usage Restrictions. You will not (a) make any Service available to, or use any Service for the benefit of, anyone other than You, (b) sell, resell, license, sublicense, distribute, transfer, assign, distribute, host, rent, lease, or otherwise commercially exploit any Service or the Platform, whether in whole or in part, or include any Service in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or its related systems or networks, (g) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) frame or mirror any part of any Service, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in this Agreement, (j) access any Service in order to build a competitive product or service, or (k) reverse engineer any Service (to the extent such restriction is permitted by law). Unless otherwise indicated, any future release, update, or other addition to functionality of the Platform shall be subject to these SITE TERMS. All copyright and other proprietary notices on the Platform (or on any content displayed on the Platform) must be retained on all copies thereof.
USER’S REPRESENTATIONS AND WARRANTIES; USE OF PLATFORM
User represents that it will provide Us with Your most current e-mail address. In the event that the last e-mail address that You have provided Us is not valid, or for any reason is not capable of delivering to You the notice described above, Our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of Our Services following notice of such changes shall indicate Your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
User represents and warrants that it will (a) be responsible for its compliance with this Agreement and for all activities that occur through its use of Our Services, (b) access and use the Services in accordance with Tenacity Cloud’s usage guides and policies, and other documentation we make available to You, (c) be responsible for the accuracy, quality and legality of Your Services Data, (d) use Services only in accordance with this Agreement and applicable laws and government regulations, (e) comply with the terms of service of Non-Tenacity Cloud Applications with which You use the Services, (f) not share any password(s) with any other individual, (g) not violate any policies of the entity entering into this Agreement, and to bind that entity (h) be responsible for any Services Data provided to Tenacity Cloud as part of the Services, and shall not: (i) infringe any copyright, trademark, or patent; (ii) misappropriate any trade secret; (iii) be deceptive, defamatory, obscene, pornographic or unlawful; (iv) contain any viruses, worms or other malicious computer programming codes intended to damage the Platform or data; or (v) otherwise violate the rights of a third party.
You are responsible for maintaining the confidentiality of your Platform and Tenacity Cloud account login information and are fully responsible for all activities that occur under the Platform and Tenacity Cloud account. You agree to immediately notify Tenacity Cloud of any unauthorized use, or suspected unauthorized use of your Platform or Tenacity Cloud account or any other breach of security. Tenacity Cloud cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
User will have the right to upload information and individually-identifiable data to the Platform (“Services Data”). User represents and warrants that all Services Data it discloses or delivers to Tenacity Cloud for use in connection with the License and use of the Platform are the property of User, or that User has the rights to disclose or deliver the Services Data and other materials to Tenacity Cloud, and that the Services Data and other materials do not infringe any copyright, trademark, trade secret, patent or other right of any third party.
5.5 To the extent allowed by law User agrees to indemnify, hold harmless, and to defend Tenacity Cloud against all damages, losses, judgments, penalties, expenses, costs, and fees (including reasonable attorneys’ fees) incurred by, or awarded or assessed against Tenacity Cloud in connection with any third party (including domestic or foreign governments or agencies) assertion inconsistent with the promises, statements, representations, and warranties.
Provision of Platform. We will (a) make the Platform available to You pursuant to this Agreement, and (b) provide Our standard support for the Platform to You at no additional charge, and/or upgraded support if applicable. Notwithstanding the foregoing, the Platform may not be available due to: (i) planned downtime and (ii) circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-Tenacity Cloud Application failure or delay, or denial of service attack. We reserve the right to make changes to the Services at any time and from time to time, provided, however, that We will not materially decrease the functionality of the Platform. If We make a material change to the Services, We will notify You of such change in accordance with Section 15 (Notices).
USE OF SERVICES
NON-TENACITY CLOUD PROVIDERS
Third-Party Links & Ads. The Platform may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, "Third-Party Links & Ads"). Such Third-Party Links & Ads are not under the control of Tenacity Cloud, and Tenacity Cloud is not responsible for any Third-Party Links & Ads. Tenacity Cloud provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.
Non-Tenacity Cloud Applications and Your Services Data . If You install or enable a Non-Tenacity Cloud Application for use with a Service, You grant Us permission to allow the provider of that Non-Tenacity Cloud Application to access Your Services Data as required for the interoperation of that Non-Tenacity Cloud Application with the Service. We are not responsible or liable for any disclosure, modification or deletion of Your Services Data resulting from access by a Non-Tenacity Cloud Application. We are not responsible or liable to You if You install, connect, enable, use or share any Integration, feature, workflows, actions, or suggestions (a) authored or made available by an entity other than Tenacity Cloud, including You, or (b) designated as “Community Built” or any similar designation in the Services.
Integration with Non-Tenacity Cloud Applications . The Services may contain features designed to interoperate with Non-Tenacity Cloud Applications. To use such features, You may be required to obtain access to Non-Tenacity Cloud Applications from their providers, and may be required to grant Us access to Your account(s) on the Non-Tenacity Cloud Applications.
PROPRIETARY RIGHTS AND LICENSES
Shine the Light Request: If You are a California resident you also may have the right to request that we provide you with (a) a list of certain categories of personal information we have disclosed to third parties for their direct marketing purposes during the immediately preceding calendar year and (b) the identity of those third parties. Tenacity Cloud does not currently make such disclosures to third parties.
If you are a California resident, you may exercise any of your California privacy rights by contacting us using the contact information listed below.
PROPRIETARY RIGHTS AND LICENSES
Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all of Our rights, title, and interest in and to the Services, including all of Our intellectual property rights including but not limited to copyrights, trade secrets, trademarks, patents, and “know-how”. You reserve all of Your rights, title and interest in Your Services Data, provided that We may use Your Services Data for business purposes as provided in Section 9.2 below. No rights are granted to You hereunder other than as expressly set forth herein.
Our Rights to Use Your Services Data. You grant Us the right to use Your Services Data, in compliance with applicable law, in order to: (a) provide the Services in accordance with this Agreement, (b) prevent or address service or technical problems, or (c) as may be required by law. We may also use Your Services Data in an aggregated, de-identified and generic manner, in compliance with applicable law, for marketing, survey purposes, setting benchmarks, feature suggestions, product analytics and new product features or services, Services utilization analyses and related purposes, provided that (i) it is used only for internal administrative purposes and general usage statistics; (ii) does not identify You or Your agents, representatives, customers or employees and is not attributable to such persons or entities in any way; and (iii) where Your Services Data is used in this manner to create publicly disclosed general usage statistics, such statistics are used to report only the total aggregate use among Our customers. Subject to the rights and licenses granted in this Agreement, We acquire no right, title, or interest from You under this Agreement in or to Your Services Data.
License by You to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Services.
Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Our Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
Protection of Confidential Information. The 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) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, disclose Confidential Information of the Disclosing Party only to those of its 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 no less stringent than those herein. Neither party will disclose the terms of this Agreement to any third party other than its, legal counsel and accountants without the other party’s prior written consent.
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law or by the order of a court or similar judicial or administrative body to do so.
MUTUAL REPRESENTATION AND WARRANTIES; EXCLUSIVE REMEDIES AND DISCLAIMERS
Mutual Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so. Each party warrants that it will comply with all laws and regulations applicable to its provision or use of the Services.
Correction of Platform Material Defects; Disclaimer. Tenacity Cloud will use reasonable efforts to correct any material defects in the Platform, however the Platform is available “AS-IS” AND “AS AVAILABLE” BASIS.
Sole and Exclusive Remedies. The remedies in this Section are the sole and exclusive remedies provided to User relating to the Platform.
LIMITED WARRANTIES; EXCLUSION OF CERTAIN WARRANTIES
Limited Warranty. Tenacity Cloud does not warrant that the functions contained in the Platform will meet User’s specific needs, be error-free, or operate without interruption. The Platform is hosted on a computer system that will be subject to maintenance, repair, and upgrading; the Platform will be temporarily inaccessible during such times.
Waiver of Other Warranties. THESE LIMITED WARRANTIES ARE IN LIEU OF, AND USER HEREBY WAIVES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY. REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY, IN NO EVENT SHALL TENACITY CLOUD BE LIABLE TO USER IN CONNECTION WITH THESE SITE TERMS, INCLUDING USE OF THE PLATFORM, FOR: (a) ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, EVEN IF TENACITY CLOUD IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES; (b) LOST PROFITS, LOST REVENUE, LOST BUSINESS EXPECTANCY, BUSINESS INTERRUPTION LOSSES, OR LOSS OF DATA; AND/OR DIRECT DAMAGES THAT SHALL NOT EXCEED $100.
For Convenience. Either party may terminate the Agreement for any or no reason after providing written notice of the termination of the Site Terms. In addition, this Agreement shall automatically terminate when the Master License Agreement terminates or expires through which User is provided access to the Platform.
Obligations upon Termination. Upon expiration, termination of this Agreement, User shall immediately cease all use of the Platform. Tenacity Cloud is not responsible or liable for any records or information that is made unavailable to User as a result of User’s termination of its License.
Your Services Data Portability and Deletion. After the effective date of termination or expiration of this Agreement, We will have no obligation to maintain or provide Your Services Data, and may, in Our sole discretion, delete or destroy all copies of Your Services Data in Our systems or otherwise in Our possession or control, unless legally prohibited.
Surviving Provisions. The Sections titled “Fees” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Limitation of Liability,” “Notices, Governing Law and Jurisdiction,” and “Miscellaneous” will survive any termination or expiration of this Agreement. In addition, all Sections of these Site Terms related to ownership, privacy, indemnification, and any other subject that would, by its nature, be deemed to survive termination of the License, will survive the termination or expiration of the License.
NOTICES, GOVERNING LAW AND JURISDICTION
Notices. All notices shall be in writing and shall be addressed to the parties at their respective addresses provided herein or to such other address as a party may designate. Notices are effective upon receipt. Notice may be given by email, hand delivery, certified mail (return receipt requested), or overnight courier.
Agreement to Governing Law and Jurisdiction. Each party agrees that this Agreement is governed by and shall be construed in accordance with the laws of the State of Michigan, in all respects, without regard to choice or conflicts of law rules, and that all disputes arising out of or relating to this Agreement are limited to the exclusive jurisdiction and venue of the state and federal courts located within the Eastern District of Michigan; or in any court of the State of Michigan sitting in Washtenaw County if there is no federal subject matter jurisdiction. Each party hereby consents to and waives any objections with respect to such jurisdiction and venue.
The Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
This Agreement is the entire agreement between You and Us regarding Your use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the waiver is to be asserted. No modification or amendment of any provision will be effective unless in writing and signed by the party against whom the waiver is to be asserted. User may not assign any rights or delegate duties under these Site Terms without the prior, express, written consent of Tenacity Cloud, which may be granted or withheld at Tenacity Cloud’s sole discretion. Any attempted assignment without such consent shall be void. These Site Terms constitutes the entire understanding of the parties with respect to the Platform. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, an act of war or terrorism, riot, labor condition, governmental action, epidemic or pandemic, and Internet disturbance) that was beyond the party’s reasonable control. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF.