Master Service Agreement

Last modified January 12, 2021

PLEASE READ THIS AGREEMENT CAREFULLY BECAUSE IT IS A LEGALLY BINDING AGREEMENT AND GOVERNS YOUR ACCESS, ACQUISITION, AND USE OF TIMESPAN, INC. D/B/A TIME CLOCK GO (“TCG”) SERVICES. SERVICES ARE AVAILABLE VIA OUR WEBSITE AND APP. WE OFFER VARIOUS MODULES, FEATURES, AND SERVICES ON A SOFTWARE-AS-A-SERVICE BASIS. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. REGARDLESS OF WHETHER YOU REGISTER FOR PAID TCG SERVICES, A FREE TRIAL OF TCG SERVICES, A BETA SERVICE, OR FREE SERVICE, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL GOVERN.

YOU MAY ONLY ACCESS AND USE THE SERVICES AFTER ACCEPTING THIS AGREEMENT. YOU ACCEPT THE TERMS OF THIS AGREEMENT UPON THE SOONER OF (1) CLICKING A BOX INDICATING ACCEPTANCE (E.G. AN “I AGREE” BUTTON), (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, (3) COMPLETING THE REGISTRATION PROCESS, (4) DOWNLOADING TCG’S APP, OR (5) ACCESSING OR USING ANY TCG SERVICE. BY ACCEPTING THIS AGREEMENT, YOU CONFIRM THAT YOU HAVE (A) READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, AND (B) IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” AND “YOU” SHALL REFER TO SUCH ENTITY AND ITS PARENTS, SUBSIDIARIES, AND AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE ANY SERVICE.

 

YOU ARE HEREBY NOTIFIED THAT THIS AGREEMENT (1) AUTOMATICALLY RENEWS, AND (2) BY ENTERING INTO THIS AGREEMENT YOU ARE DESIGNATING TCG AS YOUR ATTORNEY-IN-FACT FOR THE LIMITED PURPOSE OF PROVIDING SERVICES TO YOU IN CONNECTION WITH THIRD-PARTY SERVICES AND USING YOUR SIGNATURE AS DESCRIBED IN THIS AGREEMENT.

TCG RESERVES THE RIGHT, WITH OR WITHOUT NOTICE, TO MAKE CHANGES TO THIS AGREEMENT IN TCG’S SOLE DISCRETION. YOUR CONTINUED USE OF OR ACCESS TO ANY PART OF THE SERVICES CONSTITUTES YOUR ACCPETANCE OF SUCH CHANGES TO THIS AGREEMENT. YOU SHOULD REVIEW THIS AGREEMENT PERIODICALLY TO DETERMINE IF ANY CHANGES HAVE BEEN MADE.

This Master Service Agreement was last updated on January 12, 2021. It is effective between Customer and TCG as of the date of your accepting this Agreement.

 

  1. DEFINITIONS

“Account Information” means all the collective information (such as signatures, data, passwords, usernames, PINs, materials, and content), necessary for us to, for example, access, connect with or mange your account and the accounts of your Administrators and Users.

“Administrator(s)” means the individual(s) you name as administrator(s) to oversee the provision of the Services to your Users and that you authorize to make decisions on your behalf as it relates to (a) the Services, and (b) your Users’ access to and use of the Services. Such Administrators also have the ability to access, monitor, use, modify, export, and disclose Customer Data and User Content, and to specify permissions for Users.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.

“Agreement” means this Master Service Agreement.

“Beta Services” means TCG services or functionality that are not generally available to the public but may be made available to Customer to try at TCG’s option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.

“Content” means information obtained by TCG, third-party content providers, or from publicly available sources, and made available to Customer through the Services, or pursuant to an Order Form, as more fully described in the Documentation.

“Customer” and “you” means in the case of an individual accepting the Agreement on his or her own behalf, such individual, or in the case of an individual accepting the Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting the Agreement, and Affiliates of such Customer which have entered into Order Forms or otherwise used or received the benefit of the Services.

“Customer Data” means electronic data and information submitted by or for Customer to the Services, excluding Content and Non-TCG Applications.

“Documentation” means the applicable documentation provided to Customer and Users by TCG, including usage guides, training materials, policies, and other documents provided by TCG to Customer or User separately that relate to the Services, including product or program terms, orders, activation, and payment terms, as updated from time to time in TCG’s sole and absolute discretion.

“End User Agreement” means the terms and conditions that govern Users’ respective access and use of the Services. Such End User Agreement is different than this Agreement and a copy can be found at https://www.timeclockgo.com/end-user-agreement .

“Feedback” means any ideas, proposals, enhancement request, recommendation, correction, suggestions and/or other feedback you or your Administrators or Users may choose to provide to TCG relating to TCG’s or its Affiliates’ operations or Services. Feedback is not your Confidential Information, it is not your proprietary information nor your intellectual property, and it is not Customer Data or User Content.

“Free Services” means Services that TCG makes available to Customer free of charge. Free Services exclude Services offered as a free trial and Purchased Services.

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including by way of example, viruses, worms, time bombs and Trojan horses.

“Non-TCG Application” means a web-based, mobile, offline, or other software application functionality that interoperates with a Service, that is provided by Customer or a third party.

“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and TCG or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of the Agreement as if it were an original party hereto.

“Payment Information” means, collectively, your designated bank or credit card account information and your other payment-related information.

“Privacy Policy” means TCG’s Privacy Policy located at https://www.timeclockgo.com/privacy , as may be amended from time to time by TCG.

“Purchased Services” means Services that Customer or Customer’s Affiliate purchases under an Order Form or online purchasing portal, as distinguished from Free Services, Beta Services, or other Services provided pursuant to a free trial.

“Restricted Business” means those certain entities or individuals to whom TCG may not or will not provide the Services to as a matter of policy, risk, contractual obligations, regulation, or law.

“Services” means the products and services that are ordered by Customer under an Order Form or online purchasing portal, or provided to Customer free of charge (as applicable) or under a free trial, and made available online by TCG, including associated TCG offline or mobile components. “Services” excludes Content and Non-TCG Applications.

“TCG” means Timespan, Inc. d/b/a Time Clock Go.

“Terms of Use” means TCG’s Terms of Use Agreement located at https://www.timeclockgo.com/terms , as may be amended from time to time by TCG.

“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting the Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by TCG without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, TCG at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, Administrators, employees, consultants, contractors, and agents of Customer, and third parties with which Customer transacts business.

“User Content” means the data, information, images, recordings (audio or video) and/or materials Users provide (or that is provided on Users’ behalf) for our provision of the Services to you and/or your Users, which may include names, contact information, Social Security numbers, compensation information, and other sensitive, proprietary, personal, or identifying information. User Content does not include data related to User obtained from sources other than you, your Administrators, or your User.

  1. TCG RESPONSIBILITIES

2.1 Provision of Purchased Services. TCG will provide Services using a commercially reasonable level of skill and care. All Services are governed by the Agreement, Privacy Policy, Terms of Use, any applicable End User Agreement and Order Form, and Documentation. TCG shall use reasonable efforts consistent with prevailing industry standards to provide and maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by TCG or by third-party providers, or because of other causes beyond TCG’s reasonable control.

 

2.2 Protection of Customer Data and User Content. TCG will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data and User Content, as described in the Documentation and Privacy Policy. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access, use, modification, or disclosure of Customer Data and User Content (other than by Customer or Users) except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law, (c) in compliance with the terms of the Agreement, applicable Order Form(s) and End User Agreement, Privacy Policy, Terms of Use, and Documentation, or (d) as Customer expressly permits in writing.

2.3 TCG Personnel. TCG will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with TCG’s obligations under the Agreement, except as otherwise specified in the Agreement.

2.4 Beta Services. From time to time, TCG may make Beta Services available to you and/or User(s) that work for you at no charge. You or such User(s) may choose whether to accept or decline such trial in its sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. TCG may discontinue Beta Services at any time in TCG’s sole discretion and may never make them generally available. TCG will have no liability for any harm or damage arising out of or in connection with Beta Services.

2.5 Free Trial. If you or a User that works for you registers on TCG’s or an Affiliate’s website for a free trial, TCG will make the applicable Service(s) available on a trial basis free of charge until the earlier of (a) the end of the free trial period for which the party registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service(s), or (c) termination by TCG in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into the Agreement by reference and are legally binding.

YOU SHALL REVIEW THE APPLICABLE SERVICE’S DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICE(S) BEFORE MAKING A PURCHASE.

ANY DATA YOU OR ANY USER(S) THAT WORKS FOR YOU ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU OR SUCH USER(S), DURING THE FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.

2.6 Free Services. TCG may make Free Services available to you and/or User(s) that work for you. Use of Free Services is subject to the terms and conditions of the Agreement. In the event of an irreconcilable conflict between this section and any other portion of the Agreement, this section shall control. Free Services are provided to Customer without charge up to certain limits as described in the applicable Order Form and Documentation. Usage over these limits requires the purchase of additional resources or services. You agree that TCG, in its sole discretion and for any or no reason, may immediately terminate access for you and any User(s) that work for you to the Free Services or any part thereof. You agree that any termination of access to the Free Services may be without prior notice, except as required by law, and you agree that TCG will not be liable to you, any applicable Users, or any third parties for such termination. You are solely responsible for exporting Customer Data and User Content from the Free Services prior to termination of any access to the Free Services for any reason.

  1. USE OF SERVICES AND CONTENT

3.1 Subscriptions. You will submit your Order Form(s) through TCG’s website or app. You will submit your first Order Form when you subscribe to the Services and thereafter may submit additional Order Forms from time to time as you wish to order additional Services or make changes to your subscription to the extent expressly provided in the Agreement. In completing your Order Form(s), you will select the specific Services you wish to order and the subscription term, and you will provide additional information such as your details for notice requirements and Payment Information. In submitting your Order Form(s), you will also submit or confirm the quantity of Users and applicable fees. The Order Form(s) may also include other information and terms or details specific to the Services ordered under the Agreement, such as the length of the subscription. All Order Forms must be accepted by TCG and do not become binding on TCG until accepted. You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by TCG regarding future functionality or features.

3.2 Change in Number of Users. If you desire to increase the number of Users, TCG will charge you for the increased number of Users, prorated for the balance of the applicable subscription term, at the price for the subscription term or as agreed to in the applicable Order Form. Such added Users’ subscriptions will terminate on the same date as the underlying subscription term. If Customer decreases the number of Users during the then-current subscription term, Customer will not be entitled to any refund, credits, or adjustment of the fees already paid or owed for the remainder of the committed subscription term, except as required by law.

3.3 Usage Limits. Services and Content are subject to usage limits specified in Order Forms and Documentation, including but not limited to limitations based on the number of Users. The Services may not be accessed by anyone other than you and any of your applicable Administrator(s) and Users and each person must have unique login credentials which may not be shared with any other individual. If you exceed a contractual usage limit, TCG may work with you to seek to reduce your usage so that it conforms to that limit. If, notwithstanding TCG’s efforts, you are unable or unwilling to abide by a contractual usage limit, you agree to execute an Order Form for additional quantities of the applicable Services, Content, and/or Users promptly upon TCG’s request, and pay any invoice for excess usage in accordance with Section 5.2. For purposes of clarification, you may remove one of your Users and replace such individual with a new User with his or her own login credentials, in which case the former User will no longer have access or use of the Services and Content.

 

3.4 Customer Responsibilities. You shall (a) select any Administrator(s) and manage access to such account(s); (b) be responsible for your Users’ compliance with applicable law, the Agreement, Documentation, and Order Forms; (c) be responsible for the accuracy, quality, and legality of Customer Data, User Content, and Account Information; the means by which you and your Users acquire Customer Data, User Content, and Account Information; your use of Customer Data, User Content, and Account Information with the Services; and the interoperation of any Non-TCG Applications with which you or your Users use in connection with the Services and/or Content; (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and Content, and notify TCG promptly of any such unauthorized access or use; (e) use the Services and Content only in accordance with the Agreement, Documentation, Order Forms, and applicable laws and government regulations; and (f) comply with the terms of service of any Non-TCG Applications with which you or your Users use in connection with the Services and/or Content. Any use of the Services or Content in breach of the foregoing by you or your Users that in TCG’s judgment threatens the security, integrity, or availability of the Services, may result in TCG’s immediate suspension of the Services, with or without notice. You acknowledge and agree that while the Services and Content may assist you in fulfilling your compliance with certain applicable laws, it does not in any way, guarantee that you meet your compliance requirements.

 

3.5 Usage Restrictions. The use rights granted by the Agreement are limited and subject to the restrictions outlined in this Section. You and your Users agree to and must abide by all applicable federal, state, and local laws. Any unauthorized use of the Services terminates all use rights granted. You agree that all Administrators and Users will be at least eighteen (18) years of age or older in all states within the United States of America except: 1) nineteen (19) years of age or older for persons residing in the states of Alabama or Nebraska; 2) twenty-one (21) years of age or older for persons residing in the state of Mississippi. Currently, the Services are designed and directed only for use within the United States of America. Except where expressly provided otherwise in an applicable Order Form, use of or access to any Service by anyone located outside the United States of America is prohibited and at your own risk. You further agree that you will not, and will ensure that any your of your applicable Administrator(s) and Users do not, (a) make any Service or Content available to anyone other than you, your Administrator(s), and your Users, or use any Service or Content for the benefit of anyone other than you or your Affiliates, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent, or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-TCG Application 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 or Non-TCG Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service, Content, or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks or engage in or attempt to engage in any potentially harmful acts that are directed against any Service or Content, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of TCG’s intellectual property except as permitted under the Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on a Service or any part, feature, function, or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in an Order Form or the Documentation, (k) use any metatags or other “hidden text” using TCG’s name or trademarks, (l) use any manual or automated spider, robot, or other software to “scrape” or download data from any web pages contained in the Services, (m) remove or destroy any proprietary markings contained on or in the Services, (n) take any action through the Services that is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane, (o) take any action through the Services that impersonates any person or entity, or (p) except to the extent permitted by applicable law, modify, translate, adapt, make derivative works of, disassemble, reverse compile, reverse engineer, or decompile a Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent. You shall notify your employees and agents who have access to the Services, including any Administrator(s) and Users, of the limitations set forth in the Agreement.

3.6 Removal of Non-TCG Applications. If you receive a notice that any Non-TCG Application must be removed, modified, and/or disabled to avoid violating applicable law or third-party rights, you will promptly do so. If you do not take required action in accordance with the above, or if in TCG’s judgment a continued violation is likely to reoccur, TCG may disable or remove the applicable Non-TCG Application. If requested by TCG, you shall confirm such deletion and discontinuance of use in writing and TCG shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition to the foregoing, if TCG is required by any third-party rights holder to remove any Non-TCG Application, TCG may discontinue your and your Administrators’ and Users’ access and use to the Services and terminate the Agreement immediately, with or without notice.

 

3.7 Removal of Customer Data and User Content. You are solely responsible for any Customer Data and User Content. TCG may remove any Customer Data and User Content for any reason (or no reason), including if such Customer Data violates the Agreement or applicable law.

 

3.8 Users’ Acceptance of End User Agreement. Your, and your Administrators’ and Users’ access and use of the Services is conditioned upon each Administrator’s and User’s acceptance of the End User Agreement and providing certain consents and various information. You acknowledge and agree that any Administrator or User who does not agree to the End User Agreement, provide such consents and information, will not be able to access or use the Services you have subscribed to.

 

3.9 Changes to the Services. TCG may update, modify, or discontinue the Services (including any portions or features) at any time without prior notice or liability to you or anyone else. Any new features added to or augmenting the Services are subject to the Agreement. If TCG is discontinuing a Service in its entirety and you are subscribing to that Service, TCG will (1) make reasonable efforts to notify you before discontinuing that Service, (2) allow you reasonable time to download Customer Data and User Content, and (3) provide you with a pro-rated credit for any unused subscription fees for that specific Service to the extent Customer has prepaid for a term that has not yet expired, with such credit being available for use on future Services.

3.10 Equipment and Software. You on your own behalf and on any of your Administrators or Users are responsible for procuring all equipment and software necessary for you and your Administrators and Users to connect and use the Services, including by way of example only, computers, internet access, and a suitable mobile device for using the App. You are responsible for any fees, including internet, mobile, data rates, and other fees, that you and your Administrators and Users may incur when accessing or using the Services. By you and your Administrators and Users providing any mobile phone number, each party is consenting to TCG’s use of such mobile number for calls and texts in order for TCG to perform and/or improve the Services. TCG will not charge for any calls or texts, but standard message charges and/or other charges from third-party providers may apply.

3.11 Required Content. You and your Administrators and Users are required to provide certain data, information, and/or materials to enable TCG to provide the Services (e,g. Customer Data). You are also responsible for providing any notice and obtaining any consents and authorizations necessary (i) to allow the Administrators to access, monitor, use, and disclose the Customer Data with respect to the Services, and (ii) to allow TCG to provide Administrators with access to such Customer Data. As between you and TCG, and with the exception of TCG’s data security or confidentiality obligations, you agree that you are solely responsible for all Customer Data and User Content that you and your Users submit, post, communicate, provide, or otherwise make available through or for the Services.

3.12 Your Responsibility for Data; Storage. You are responsible for all Customer Data, User Content, and Account Information uploaded, posted, stored, or used in connection with the Services. You are advised to archive such items frequently and are responsible for any lost or unrecoverable Customer Data, User Content, and Account Information. TCG may establish and alter from time to time in its sole discretion, with or without notice, general practices and limits regarding use of the Services including, without limitation, the maximum amount of data which may be stored using the Services and the maximum period of time that data will be retained. As of the date of the Agreement, the maximum amount of data that can be stored for each individual User is two (2) gigabytes.

3.13 Right to Monitor. TCG may, but has no obligation to, monitor content on the Services including any Customer Data and User Content. TCG may disclose any information if TCG determines that such action is necessary to satisfy TCG’s legal obligations, protect TCG or its customers and end users, or operate the Services properly. TCG, in its sole discretion, may refuse to post, remove, or refuse to remove, any Customer Data and User Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of the Agreement, any Order Form or Documentation, the Privacy Policy, Terms of Use, or applicable law.

3.14 Inactivity. TCG shall have the right to log off, deactivate, and terminate your account and any Administrator’s or User’s account which has been inactive for an extended period of time, as determined by TCG. TCG has the right to change these practices and limits at any time, in its sole discretion, with or without notice.

  1. NON-TCG PRODUCTS AND SERVICES

4.1 Non-TCG Products and Services. TCG or third parties may make available third-party products or services, including, for example, Non-TCG Applications. Any acquisition by you of such products or services, and any exchange of data between you and your Users with any non-TCG provider, product, or service is solely between you and such applicable user on the one hand and the applicable non-TCG provider on the other hand. Your and your Users’ use or reliance on any Non-TCG Applications or other non-TCG products or services are at your and your Users’ own risk. Regardless of whether TCG receives compensation from such third parties, TCG does not warrant or support Non-TCG Applications or other non-TCG products or services, whether or not they are designated by TCG as “certified” or otherwise, unless expressly provided otherwise in an Order Form. TCG is not responsible for any disclosure, modification, or deletion of Customer Data or User Content resulting from such Non-TCG Application or its provider.

 

4.2 Integration with Non-TCG Applications. The Services may contain links to, integrate with, or features designed to interoperate with Non-TCG Applications. TCG cannot guarantee the continued availability of such Service features and may cease providing them without entitling Customer to any refund, credit, or other compensation. Links to such sites are provided as a convenience and are not sponsored by, endorsed by, or otherwise affiliated with TCG. As TCG has no control over those sites and their content, you and your Users acknowledge and agree that TCG is not responsible for the availability or such links, resources, and content, and TCG does not endorse, and is not responsible or liable for, any content, advertising, products, services, or other materials made available on or from these linked sites. Further, TCG is not responsible, directly or indirectly, for any damages or loss caused by or alleged to have been caused by, or in relation to, the use of any content, goods, products, or services offered through these links, or any failure and/or disruption to your computer system phone or smart device that results from your or your Users’ use of any such links, privacy violations, or any intellectual property or other third-party claims relating to your or your Users’ posting or using such links and/or Non-TCG Applications.

4.3 Consent and Authorization to Use Account Information. You and each of your Administrators and Users agree to provide TCG with all necessary Account Information in order to provide the Services. You and each of your Administrators and Users designate TCG as their attorney-in-fact (which appointment is coupled with an interest) in connection with such third-party services, and each authorizes TCG to take any action in connection with such third-party services in order to provide the Services contemplated hereby, including but not limited to acting on your and your Administrators’ and Users’ behalf to (a) store account information; (b) access or connect with third-party services; (c) access or retrieve information or data from third-party services; or (d) access, open and/or manage accounts with third-party services. You and each of your Administrators and Users agree that third-party services may rely on TCG’s use of these authorizations.

Further, you and each of your Administrators and Users represent and warrant that each has the required permission to give TCG the Account Information and to provide TCG with the consents set forth above without any obligations on TCG (including, but not limited to, any payment obligations) other than those agreed to in the Agreement. Each further agrees that TCG is not responsible for any inability to use the Services or receive any benefit from the Services due to inaccurate or incomplete Account Information. Additionally, you, and not TCG, will be solely responsible for the consequences resulting from any instructions provided to TCG by you, your Administrators, and/or your Users that TCG follows.

 

  1. FEES AND PAYMENTS

5.1 Fees. TCG may revise the prices for its Services in its sole discretion and without prior notice. Customer will pay all fees specified in Order Forms and based on the number of Users, Services, applicable rates, subscription terms, and other costs or charges. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content subscriptions purchased and not actual usage; (ii) payment obligations are non-cancelable and fees paid are non-refundable; and (iii) quantities purchased cannot be decreased during the relevant subscription term. Notwithstanding the foregoing, TCG reserves the right to offer certain promotional rates from time to time, which TCG may offer solely on a one-time basis, and may apply solely to specific subscription terms or services. Any such promotional pricing is offered in TCG’s sole discretion and TCG is under no obligation to offer such promotional pricing to any specific party, even if TCG has provided promotional pricing offers to other parties or continues to provide promotional pricing. Unless otherwise agreed to in writing by TCG, all fees must be paid in U.S. Dollars.

5.2 Invoicing and Payment. Unless otherwise stated in the Order Form, invoiced fees are due upon receipt. You will provide TCG with valid and updated Payment Information. You authorize TCG and its payment processor, as applicable, to (a) store your Payment Information, and (b) use any Payment Information you provide to us at any time to automatically charge or debit all fees via ACH debit transaction or credit card payment, as applicable, on the date that the fees are due based on the applicable Order Form or other applicable agreement, if any. Such fees include those owed for any renewal term(s) as set forth in Section 11.2. For the avoidance of doubt, you authorize TCG and TCG’s payment processors to use your Payment Information to satisfy your payment obligations for fees owed to TCG under any agreement you have with TCG for any products or service you have subscribed to either directly or indirectly (e.g. Administrator and User accounts).

To the extent you use ACH payments, you further agree to follow NACHA rules applicable to ACH transactions and that you will not dispute scheduled transactions with your bank so long as the transactions correspond to the Agreement (as updated from time to time in accordance with the Agreement), an applicable Order Form, or any other agreement for the Services, including any future products or offerings you choose to subscribe to. You understand that because these are electronic transactions, funds may be withdrawn from the account immediately. If an ACH debit transaction is rejected for any reason, you understand that TCG may continue to reprocess the ACH debit transaction (for the amount due and applicable cost fees as explained in this Section) after the first ACH attempt. Further, you understand that TCG may also impose a fee for each declined transaction, as permitted by applicable law.

Any individual providing Payment Information on behalf of a business entity hereby certifies that they are an authorized user of the designated account or that they have permission to designate the account for payment.

5.3 Overdue Charges. If any invoiced amount is not received by TCG by the due date, then without limiting other TCG’s rights or remedies, those charges may accrue late interest at the rate of one and five tenths of a percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. Additionally, if fees are not paid when due, you agree to pay all costs, including reasonable legal fees (including costs of collecting on any judgment), court costs, bank charges, late payment fees, and any other costs incurred with collecting on delinquent or dishonored payments.

5.4 Suspension of Service and Acceleration. If any amount owed by you is ten (10) or more days past due, TCG may, without limiting its other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Services until such amounts are paid in full. Additionally, TCG reserves the right to suspend or terminate the Agreement, any Order Form, access to and use of the Services (or any part of function thereof, including any Customer Data and User Content), and any account associated with your account (e.g. Administrator and User accounts) immediately if:

(a) TCG reasonably believes that you or your agents (including Administrators or Users) have violated the Agreement, End User Agreement, Terms of Use, Privacy Policy, or any Order Form (including payment terms) or Documentation; or

(b) TCG suspects or detects Malicious Software connected to you or your agents’ (including Administrators or Users) account. Additionally, any suspected fraudulent, abusive, or illegal activity by a customer, their agent or any User may be referred to law enforcement authorities at our sole discretion.

Unless legally prohibited from doing so, TCG will use commercially reasonable efforts to contact our customers directly via email to notify them when taking any of the foregoing actions. TCG shall not be liable to you or any other party for exercising any of the foregoing rights.

 

5.5 Taxes. TCG’s fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases. If TCG has the legal obligation to pay or collect Taxes for which you are responsible under this section, TCG will invoice you and you will pay that amount unless you provide TCG with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, TCG is solely responsible for taxes assessable against it based on its income, property, and employees.

  1. OWNERSHIP, RIGHTS, LICENSES, AND RESTRICTIONS

6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, TCG, and its Affiliates, licensors, and Content providers, reserve all of their right, title, and interest in and to the Services and Content, including all of their related intellectual property rights (e.g. data base rights, copyright, design rights, trademarks, and other similar rights including the right to apply for protection of the same). No rights are granted to you or any other party hereunder other than as expressly set forth herein.

6.2 Access to and Use of the Services and Content. Subject to the terms of, and your and your Administrators’ and Users’ full and ongoing compliance with, the Agreement, End User Agreement(s), Terms of Use, Privacy Policy, Documentation, and all applicable Order Forms, TCG grants you, and your Administrators and Users, a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable right, during the applicable subscription term to access and use the Services and Content within the United States of America and solely as provided in each submitted and accepted Order Form for your internal business purpose.

6.3 License by Customer to TCG. You grant TCG, and its Affiliates and applicable contractors, a fully paid, worldwide, royalty free, irrevocable, perpetual, and fully sublicensable right and license to host, copy, use, transmit, and display any Customer Data, User Content, and Non-TCG Applications and program code created by or for you using a Service or for use by you with the Services, each as appropriate for TCG to provide and ensure proper operation of the Services and associated systems in accordance with the Agreement. If you choose to use a Non-TCG Application with a Service, you grant TCG permission to allow the Non-TCG Application and its provider to access Customer Data and User Content and information about you and your Users’ usage of the Non-TCG Application as appropriate for the interoperation of that Non-TCG Application with the Service. Further, you grant TCG a fully paid, royalty free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to (1) use any Customer Data and User Content as necessary to perform, analyze, and improve the Services, (2) collect, use, and disclose usage data, and/or (3) use and disclose any Customer Data, User Content, or usage data for other uses identified in TCG’s Privacy Policy. Subject to the limited licenses granted herein and in the Privacy Policy, TCG acquires no right, title, or interest from you or your licensors under the Agreement in or to any Customer Data, User Content, or Non-TCG Application.

6.4 Accounts. You and your Administrators and Users must register for a TCG account in order to use the Services. In registering for or opening an account, you and your Administrators and Users agrees to provide accurate and complete registration information and to keep such information up to date. You and your Administrators and Users shall take reasonable steps to prevent unauthorized use of your, and your Administrators’ and Users’, accounts and to keep passwords secure and confidential. TCG encourages the use “strong” passwords. TCG is not liable for any losses caused by any unauthorized use of your or your Administrators’ and Users’ accounts. You must notify TCG immediately of any breach of security or unauthorized use of such accounts.

 

6.5 License by Customer to Use Feedback. You agree to promptly inform TCG of any bugs or errors in the Services. Any Feedback is submitted at your own risk and TCG has no obligation with respect to such Feedback. TCG shall own all right, title, and interest in and to the Feedback. To the extent you own any right, title, or interest in the Feedback, you grant to TCG and its Affiliates a worldwide, perpetual, irrevocable, royalty free, and fully sublicensable license to use and incorporate into its Services any Feedback provided by you, your Administrators and your Users relating to the operation of TCG’s or its Affiliates’ services, without restriction and without any compensation to you or any third party.

7. CONFIDENTIALITY

7.1 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. Confidential Information of Customer includes Customer Data and User Content; Confidential Information of TCG includes the Services and Content, and the terms and conditions of the Agreement and all Order Forms (including pricing). Confidential Information of each party includes 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 (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, (d) was independently developed by the Receiving Party, or (e) is approved for disclosure by the Disclosing Party, including pursuant to the terms of the Agreement or Privacy Policy. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional TCG services.

7.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information except for such rights as granted herein. 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) to (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement or Privacy Policy, and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with the Agreement and Privacy Policy who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of the Agreement or any Order Form to any third party other than its Affiliates, legal counsel, and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, TCG may disclose the terms of the Agreement and any applicable Order Form to a subcontractor or Non-TCG Application Provider to the extent necessary to perform TCG’s obligations under the Agreement or as part of a merger, restrictions, or other financial or insurance transaction, under terms of confidentiality materially as protective as set forth herein.

7.3 Disclosure of Confidential Information. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party notice at least five (5) business days prior of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to the Confidential Information.

Further, notwithstanding the foregoing, TCG’s policy is to disclose your and your Administrators and Users personal identifying information and any other information when we reasonably believe such disclosure is appropriate to comply with applicable law, to enforce any of our contracts or agreements, and/or to protect the rights, property, or safety of our other users and customers, in response to a governmental authority request or legal process, or for purposes of fraud protection and/or any other legitimate legal or business purpose now or hereafter existing. Such disclosures will not be deemed a breach of this Agreement or our Privacy Policy.

  1. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

8.1 Representations. Each party represents that it has validly entered into the Agreement and has the legal power to do so.

 

8.2 TCG Warranties. TCG warrants that during an applicable subscription term, (a) the Agreement, Order Forms, Privacy Policy, Terms of Use, and Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data and User Content; (b) TCG will not materially decrease the overall security of the Services; and (c) the Services will perform materially in accordance with the Agreement, Order Forms, Privacy Policy, Terms of Use, and Documentation. For any breach of a warranty above, Customer’s exclusive remedies are those described in Sections 11.3 and 11.4.

8.3 No Professional Advice. Any information, material, or Content that you or your Administrators or Users may receive through the Services or in connection with the Services is for informational purposes only, and it is not financial, tax, legal, regulatory, or other professional advice.

 

8.4 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TCG MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND TCG SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, QUIET ENJOYMENT, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” EXCLUSIVE OF ANY WARRANTY WHATSOEVER AND ARE AVAILABLE FOR USE AT YOUR, AND YOUR ADMINISTRATORS’ AND USERS’ OWN RISK. UNLESS OTHERWISE PROVIDED IN THE AGREEMENT, TCG DOES NOT MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES AND DOES NOT MAKE ANY COMMITMENTS REGARDING THE SPECIFIC FUNCTIONS OF ANY SERVICES OR SUCH SERVICES’ RELIABILITY, THE SECURITY OF ANY SERVICE OR ANY TELECOMMUNICATION SERVICE FROM WHICH YOU, OR YOUR ADMINISTRATORS OR USERS ACCESS OR USE THE SERVICES, AVAILABILITY, ACCURACY, RELIABILITY, NON-INTERFERENCE, NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, ERROR RATE, OR ABILITY TO MEET YOUR NEEDS. FURTHER, TCG AND ITS AFFILIATES AND SUPPLIERS DO NOT WARRANT THAT THE SERVICES ARE SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT, OR DESTRUCTION. IF EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU, ANY IMPLIED WARRANTIES ARE LIMITED TO SIXTY (60) DAYS FROM THE DATE OF PURCHASE OF THE SERVICES.

8.5 High-Risk Activities. THE SERVICES ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, PRENATAL OR OTHER SURGICAL OR MEDICAL CARE SYSTEMS, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SERVICES COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, PHYSICAL OR EMOTIONAL IMPAIRMENT, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES”). TCG AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH-RISK ACTIVITIES.

 

  1. MUTUAL INDEMNIFICATION

9.1 Indemnification by TCG. TCG will defend you against any claim, demand, suit, or proceeding made or brought against you by a third party alleging that any Purchased Service infringes or misappropriates such third-party’s intellectual property rights (“Claim Against Customer”), and will indemnify you from any damages, attorney fees, and costs finally awarded against you as a result of, or for amounts paid by you, under a settlement approved by TCG in writing of, a Claim Against Customer, provided you (a) promptly give TCG written notice of the Claim Against Customer, (b) give TCG sole control of the defense and settlement of the Claim Against Customer (except that TCG may not settle any Claim Against Customer unless it unconditionally releases you of all liability), and (c) give TCG all reasonable assistance, at TCG’s expense. If TCG receives information about an infringement or misappropriation claim related to a Service, TCG may in its discretion and at no cost to you (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching TCG’s warranties under Section 8.2, (ii) obtain a license for your continued use of that Service in accordance with the Agreement, or (iii) terminate your subscriptions for that Service upon thirty (30) days’ written notice, and refund to you any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Purchased Services are the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Purchased Services or any part thereof with software, hardware, data, or processes not provided by TCG, if the Purchased Services or use thereof would not infringe without such combination; (3) a Claim Against Customer arises from the use of Services for which there is no charge (i.e. that does not arise from one or more Purchased Services); (4) a claim against Customer arises from a modification of the Purchased Service by anyone other than TCG; (5) a Claim Against Customer arises from use of a version of the Purchased Services other than the then-current version if infringement would have been avoided by use of the then-current version; (6) any claim which Customer is required to indemnify TCG for; or (7) a Claim Against Customer arises from Customer Data, User Content, a Non-TCG Application, or your breach of the Agreement, Privacy Policy, Terms of Use, Documentation, or applicable Order Forms . THE FOREGOING STATES YOUR EXCLUSIVE REMEDY WITH RESPECT TO A CLAIM AGAINST CUSTOMER.

 

9.2 Indemnification by Customer. You agree to defend TCG and its Affiliates, licensors, resellers, content providers, service providers, partners, employees, agents, officers, directors, and contractors (“Indemnified Parties”) against any claim, demand, suit, or proceeding made or brought against any of the Indemnified Parties by a third party alleging (a) there is an infringement or misappropriation of such third-party’s intellectual property rights due to, (1) any Customer Data, User Content, or your or your Users’ use of Customer Data or User Content with the Services, (2) a Non-TCG Application provided by you, or (3) the combination of a Non-TCG Application provided by you and used with the Services; (b) a claim that arises out of or relates to your or your Users’ (1) unauthorized use or access of the Services; (2) violation of any applicable law, rule, or regulation, or the Agreement, Privacy Policy, Terms of Use, Documentation, or any applicable Order Form; (3) User Content or Customer Data; (4) gross negligence or willful misconduct; (5) any other party’s access to and use of the Services with your or your Administrators’ or Users’ unique credentials; or (6) failure to pay any sales, value-added, use, or other taxes (each a “Claim Against TCG”), and will indemnify TCG from any damages, attorneys fees, and costs finally awarded against TCG as a result of, or for any amounts paid by TCG under any settlement, a Claim Against TCG, provided TCG promptly gives you written notice of the Claim Against TCG. Further, you may not settle any Claim Against TCG or any of the Indemnified Parties without TCG’s or the applicable Indemnified Parties’ written approval.

  1. LIMITATION OF LIABILITY

10.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF TCG, OR ITS SUBSIDIARIES, AFFILIATES, LICENSORS, RESELLERS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, ARISING OUT OF OR RELATED TO THE AGREEMENT EXCEED THE GREATER OF $100.00 OR THE TOTAL AMOUNT PAID BY YOU HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5.

 

10.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL TCG, OR ITS SUBSIDIARIES, AFFILIATES, LICENSORS, RESELLERS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT FOR ANY LOST PROFITS, LOST REVENUES, LOST GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES RELATED TO THE FAILURE OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, WORK STOPPAGES, CORRUPTION, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF BUSINESS OR INVESTMENT, PAIN AND SUFFERING OR EMOTIONAL DISTRESS, OR USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET TCG’S SYSTEMS REQUIREMENTS. SUCH LIMITATIONS APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

 

10.3 Basis of Bargain. THE LIMITATIONS OF LIABILITY PROVIDED BY THIS SECTION ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND TCG.

  1. TERM AND TERMINATION

11.1 Term of Agreement. The Agreement commences on the date you first accept it and continues until all subscriptions hereunder have expired or have been terminated.

11.2 Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one (1) year, whichever is shorter, unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term. The per-unit pricing during any renewal term will increase by up to seven percent (7%) above the applicable pricing in the prior term, unless TCG provides you with notice of different pricing at least sixty (60) days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at TCG’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in repricing at renewal without regard to the prior term’s per-unit pricing.

Non-renewal notices can be provided by email to TCG at [email protected]

 

11.3 Termination. Except as otherwise stated in the Agreement, a party may terminate the Agreement for cause (i) upon ten (10) days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, other than an involuntary proceeding in which the matter is dismissed within sixty (60) days of its filing. The foregoing expressly does not apply to breaches of Customer’s payment obligations. In the event of a breach related to Customer’s payment obligations, TCG shall have the remedies detailed in Section 5. Additionally, notwithstanding the foregoing, if TCG determines, in its sole discretion, that your business is a Restricted Business or that you or any of your Administrators or Users have violated applicable law or infringed upon a third-party’s intellectual property, TCG may terminate your and each or any of your Administrators’ and Users’ access to and use of the Services immediately with or without notice and without any liability to you or any other party for such termination.

11.4 Payment upon Termination. If the Agreement is terminated for any reason, you agree to pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve you of your obligation to pay any fees payable to TCG for the period prior to the effective date of termination.

11.5 Effect of Termination. In addition to the rights and obligations set forth in Section 11.4, upon the effective date of termination of the Agreement for any reason: (a) you and your Administrators’ and Users’ right to access or use the Services will terminate immediately; (b) TCG will cease providing the Services and will deactivate or delete your and your Administrators’ and Users’ accounts, and all associated materials, including Customer Data and User Content, subject to our obligation to work with you to export Customer Data and User Data under Section 11.6; (c) any and all of your payment obligations under the Agreement will become due immediately (except as limited by Section 11.4); and (d) you will destroy or return all of TCG’s Confidential Information in your or your Administrators’ or Users’ possession (evidenced by a certificate of destruction), and shall not retain any copies of such Confidential Information, except as required to comply with any applicable legal or accounting record-keeping requirements.

11.6 Data Removal. Upon your written request, within thirty (30) days after the effective date of termination of the Agreement, TCG will make Customer Data and User Content available to you for export or download. If legally permissible, after the export or expiration of such thirty (30) day period, TCG will have no obligation to maintain or provide any Customer Data or User Content. TCG may be required to maintain certain User Content or to maintain or continue hosting some of your Customer Data to comply with applicable law or our data retention policies.

11.6 Surviving Provisions. All provisions of the Agreement which by their nature should survive, will survive the termination of the Agreement, including without limitation, Sections (including all subsections contained therein) 2.6, 3.4, 3.5, 3.6 and 5 through 12 will survive any termination or expiration of the Agreement, and Section 2 will survive any termination or expiration of the Agreement for so long as TCG retains possession of Customer Data.

  1. GENERAL PROVISIONS

12.1 Export Compliance. The Services, Content, other TCG technology, and derivatives thereof, may be subject to export laws and regulations of the United States of America and other jurisdictions. TCG and you each represents that it is not named on any U.S. government denied-party list. You will not and will not permit any Administrator or User to access or use any Service or Content in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation.

12.2 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with the Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

12.3 Entire Agreement and Order of Precedence. The Agreement, including all items incorporated herein, is the entire agreement between TCG and you regarding your use of the Services and Content, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of any irreconcilable conflict or inconsistency among the following documents, the order of precedence shall be: (1) the Privacy Policy; (2) the applicable Order Form; (3) the Agreement; (4) the applicable End User Agreement; (5) the Terms of Use; and (6) the Documentation. Titles and headings of sections of the Agreement are for convenience only and shall not affect the construction of any provision of the Agreement. The words “include”, “includes” and “including” are deemed to be followed by the words “without limitation.” The Agreement shall not be interpreted for or against any party, but in accordance with its plain meaning.

12.4 Relationship of Parties. The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

12.5 Third-Party Beneficiaries. TCG’s Content providers shall have the benefit of TCG’s rights and protections hereunder with respect to the applicable Content. There are no other third-party beneficiaries under the Agreement.

 

12.6 Waiver. No failure or delay by TCG in exercising any right under the Agreement will constitute a waiver of that right.

 

12.7 Severability. If any provision of the 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 the Agreement will remain in effect.

 

12.8 Assignment. You may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise, without TCG’s prior written consent, in its sole and absolute discretion. It is expressly agreed that TCG may assign the Agreement in its entirety (including all Order Forms and other incorporated agreements), without your consent to its Affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

12.9 Manner of Giving Notice. Except as otherwise specified in the Agreement, all notices related to the Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second (2nd) business day after mailing, or (c) except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices will be addressed to the relevant billing contact designated by you. In addition to the foregoing, you agree to receive all communications, notices, and disclosures from TCG electronically via TCG’s website or app. This includes any tax document notices, payroll document, and other employee related documents. All other notices to you will be addressed to you individually or the relevant Administrator designated by you. Notwithstanding anything to the contrary contained herein, you agree that all communications provided by TCG to you electronically satisfy any legal requirement such communication would satisfy if it were in written hard copy, including, by way of example only, agreements, notices, or disclosures. You further authorize TCG to receive such communications electronically on your behalf. Additionally, you and your Administrators and Users agree that TCG sending notices to the last email address provided to TCG will satisfy TCG’s notice requirements under the Agreement. You may withdraw your consent to electronic communications at any time by notifying TCG at [email protected] If you withdrawal such consent, you acknowledge that TCG may not be able to provide the Services to you, and in such case you will be required to deactivate your account and stop accessing or using the Services.

 

12.10 TCG Communications. By entering into the Agreement or using the Services, You and your Administrators and Users agree to receive communications from TCG, including via email, text message, calls, and push notifications. Each of the foregoing agree that texts, calls, or prerecorded messages may be generated by automatic systems. Communications from TCG and its Affiliates may include, but are not limited to, operational communications concerning accounts or use or access to the Services, updates concerning new and existing features, communications concerning promotions, news concerning TCG and industry updates. Standard messaging charges may apply.

 

12.11 Signature Authorization & Consent. You and each of your Administrators and Users authorize TCG to use or reuse your or their signature in certain cases without having to obtain a signature each time. By using the Services (and for example, by clicking the approval or submit prompt), each consents to TCG (a) using their signature on the specific documents they authorize for signature, and (b) reusing their signature on a document previously authorized for signature in the event that same document is not materially updated or modified. You and your Administrators and Users each represent and warrant that all signatures will be that of an individual with the authority to bind them. Further, by using the Services, entering into the Agreement, and voluntarily providing TCG with an electronic signature, (i) each agrees to do business with TCG electronically; (ii) each intends for their electronic signature to be the same as a handwritten signature for the purposes of validity, enforceability, and admissibility; and (iii) each agrees to maintain the necessary software and equipment as provided in the Agreement to access and use the Services. If you or your Administrators or Users do not want to do business with TCG electronically or sign documents electronically, each acknowledges that TCG may not be able to provide the Services to them and they may no longer access or use the Services; accordingly, they may be required to deactivate their account and stop accessing and using the Services.

12.12 Agreement to Governing Law, Waiver of Jury Trial, and Jurisdiction. The Agreement shall be governed by the laws of the state of Arizona without regard to choice of law principles. Each party agrees to the applicable governing law above without regard to conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above. Each party agrees that any dispute arising out of or relating to the Agreement shall be litigated exclusively in the applicable state and federal courts located in Maricopa County, Arizona, in the United States of America.

YOU, AND YOUR ADMINISTRATORS AND USERS EACH WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO HAVE A TRIAL IN FRONT OF A JURY.

12.13 Limitation on Claims. YOU, AND YOUR ADMINISTRATORS AND USERS agree that regardless of any statute or law to the contrary, any claim or cause of action held by Customer or Users which ariseS out of or relateS to the Agreement or the Services must be filed by within ONE (1) year of such claim or cause of action arising or forever be barred.

 

12.14 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THE AGREEMENT MUST BE LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE. CLAIMS OF MORE THAN INDIVIDUAL USER OR ENTERPRISE GROUP CANNOT BE LITIGATED OR CONSOLIDATED WITH THOSE OF ANY OTHER ENTERPRISE GROUP OR INDIVIDUAL USER.

12.15 No Competitor Use. TCG’s direct competitors are prohibited from accessing the Services, except with TCG’s prior written consent. In addition, the Services may not be accessed for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking, or competitive purposes.

12.16 Changes to Terms. You understand that the Services are evolving. As a result, from time to time, TCG may in its sole discretion, make changes to the Agreement and other incorporated agreements and documents. If you do not accept the applicable changes, neither you nor any of your Administrators or Users will be able to access the Services; instead, you will be required to deactivate your account and all associated accounts and stop accessing and using the Services. By continuing to use the Services after any updated terms become effective, you are representing to TCG that you, and your Administrators and Users are each agreeing to the updates. For purposes of clarification, continued use includes continued access and use of the Services by your Administrators and Users.

12.17 Marketing. You agree that TCG will be able to use your name and logo to refer to you as a customer of TCG in TCG’s marketing materials and on TCG’s website. Unless previously approved by TCG in writing, you, and your Administrators and Users may not use TCG’s name, trademarks or related trade names, which each acknowledges here to be valid, subsisting, and enforceable without impediment. Further, unless previously approved by TCG in writing, you, and your Administrators, and Users may not expressly or implicitly create the false or misleading impression that TCG is associated with, or endorses, or is any way connected with you, your Administrators, or your Users.

 

12.18 Force Majeure. TCG will not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including delay or failure resulting from internet or telecommunication breakdowns, denial of service attacks, fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil unrest, rebellion or revolutions, strikes, supplier and third-party failure, lockouts, or labor difficulties.

12.19 Incorporation. By entering into the Agreement and/or using the Services, you shall be subject to any posted policies, guidelines, or rules applicable thereto. All such policies, guidelines, and rules are hereby incorporated by reference into the Agreement, including but not limited to the Terms of Use, Documentation, all applicable Order Forms, all applicable End User Agreements, and the Privacy Policy.

12.20 Attorneys’ Fees. If any party herein commences any legal or equitable action or proceeding, including, without limitation, an action for declaratory relief or for any other form of relief to enforce, interpret, rescind, or in any other manner effect the provisions of the Agreement, or for breach of the Agreement, then the prevailing party shall be entitled to recover its reasonable attorneys’ fees experts’ fees and court costs (including, but not limited to attorneys’ fees and costs incurred in collecting on any judgment), which may be set by the court in the same action (including any appellate action which may be brought in connection with such action) or in any separate action brought for that purpose, in addition to any other relief to which party may be entitled.