NOW, THEREFORE, the Parties hereto for good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, and intending to be legally bound, hereby agree as follows:
1. Description of Data
The Data delivered under this Agreement shall consist of an annually updated set of privacy practice disclosures ("Data") as further described in Exhibit A.
2. Grant of License
Subject to the terms and conditions of this Agreement, TRUSTe agrees to grant Client a non-exclusive license (the "License") to: 1. (a) use the Data for lawful purposes. 2. (b) copy the Data into a machine-readable or printed form only as necessary to use it in accordance with this Agreement. 3. (c) comply with all applicable laws and regulations governing the use of the Data. 4. (d) enable Client users reasonable access to the Data.
3. Use Restrictions/Protection of Proprietary Rights
3.1Client acknowledges that TRUSTe retain all right, title, and interest in the Data. Client may not transfer, lease, or assign the Data except as specifically allowed herein. 3.2Except as allowed herein, Client agrees to not distribute the Data obtained under this Agreement or any copy thereof to any other party without the express prior written consent of TRUSTe. 3.3Client agrees to take all reasonable steps to protect against unauthorized access to, use, and bulk disclosure of the Data obtained under this agreement. 3.4Client may not refer to TRUSTe in any way in exercising its rights under this Agreement. 3.5Client may not engage is data collection, use, or disclosure practices inconsistent with the Data. Violation of this Section 3.5 is a material breach of the Agreement which shall cause this Agreement to terminate immediately with no refund.
4.1Client shall pay the initial and ongoing fees as required by this Agreement. During the Term hereof, Participant may apply to participate in other Programs, or expand the services for an existing Program. Unless otherwise agreed to by the Parties, additional fees will be applicable, per TRUSTe's then current fee structure, for any such expansion of services or addition of a Program. Except as otherwise expressly provided in this Agreement, all fees are non-refundable.
5.1Definition. In the course of performing duties under this Agreement, each party may obtain Confidential Information (as defined below) from the other party. The party disclosing Confidential Information is the "Disclosing Party" and the party receiving Confidential Information is the "Receiving Party." "Confidential Information" means any and all technical and non-technical proprietary information provided by the Disclosing Party to the Receiving Party, whether disclosed orally or in writing, and includes all information regarding (a) the terms of this Agreement, and (b) any information regarding the Products not disclosed in marketing materials. "Confidential Information" does not include information or data that the Receiving Party can show by credible evidence: (i) was in the public domain at the time it was communicated to Receiving Party; (ii) entered the public domain subsequent to the time it was communicated to Receiving Party through no fault of Receiving Party; (iii) was in Receiving Party's possession not in violation of any obligation of confidentiality at the time it was communicated to Receiving Party; (iv) was disclosed to Receiving Party not in any violation of any obligation of confidentiality; or (v) was independently developed by employees or agents of Receiving Party without use of or reference to the Confidential Information of the Disclosing Party. 5.2Restrictions on Use and Disclosure. The Receiving Party agrees to hold the Confidential Information of the Disclosing Party in confidence, using the same degree (but no less than a reasonable degree) of care and protection that it uses to protect its own proprietary information, both during and after the Term of this Agreement. The Receiving Party agrees not to use the Confidential Information for any purpose other than as necessary to fulfill its obligations or exercise its rights under this Agreement and agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. Notwithstanding anything contained herein to the contrary, the Receiving Party may disclose Confidential Information pursuant to an order of a court of competent jurisdiction or as otherwise required by applicable law. Under such circumstances the Receiving Party will, if reasonably possible under the circumstance of such disclosure, provide the Disclosing Party with advance notice of such disclosure in order to afford the Disclosing Party an opportunity to take legal action to prevent or limit the scope of such disclosure, and will cooperate with the Disclosing Party in connection therewith.
6. Limited Warranty and Disclaimer
6.1Subject to the terms and conditions of this Agreement, TRUSTe warrants that where the Data is used for the purposes for which it is designed, and in accordance with user instructions, Client's purposes as stated in Exhibit A and TRUSTe's instructions provided to Customer from time to time, that it will perform in compliance with Section 1, above; provided, however, that this is a limited warranty only, and will not apply to any error caused by any event, circumstance or development outside of TRUSTe's reasonable control. TRUSTe disclaims all other warranties or conditions, either express or Implied, including but not limited to, warranties or conditions of merchantability, or fitness for a particular purpose. 6.2The preceding warranty will not apply if: (i) the Data is not used in accordance with this Agreement; (ii) the Data or any part thereof has been modified by any entity other than Client without the express written consent of TRUSTe; or (iii) a inaccuracy in the Data has been caused by any of Client's business activities which are inconsistent with the Data. 6.3CLIENT'S SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH OF THE ABOVE WARRANTY SHALL BE LIMITED TO THE REFUND ANY PRE-PAID BUT UNUSED FEE AMOUNTS. LICENSOR DOES NOT WARRANT THAT THE OPERATION OF THE DATA WILL BE ERROR-FREE. TRUSTE DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. 6.4CLIENT REPERESENTS AND WARRANTS THAT USE OF TRUSTE'S DATA DOES NOT CONSTITUTE COMPLIANCE WITH ANY APPLICABLE LAW, STATUTE, ORDINACE, OR REGULATION. CLIENT SHALL HAVE A CONTINUING OBLIGATION TO COMPLY WITH ALL APPLICABLE LAWS RELATING TO DATA COLLECTION, USE, AND DISCLOSURE.
7. Limitation of Liability
Regardless of the basis of recovery claimed, whether under contract, negligence, strict liability or other theory, TRUSTe's aggregate liability with respect to any and all subject matter of the Agreement or any attachment or order placed under its terms will be limited to (A) indemnification payments referred to in Section 9 below, and (B) the amount of any other direct damages or loss up to the amount of any pre-paid unused fees paid by Client for the Data giving rise to the liability. TRUSTE SHALL NOT BE LIABLE FOR LOSS OF OR DAMAGE TO RECORDS OR DATA; COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; ANY MATTER BEYOND ITS REASONABLE CONTROL; AND ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, EVEN IF TRUSTE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT ACKNOWLEDGES AND AGREES THAT THE LIMITATION OF THIS SECTION 7 AND OF SECTION 6 ABOVE ARE ESSENTIAL ELEMENTS OF THE AGREEMENT BETWEEN THE PARTIES AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE PRICES AND TERMS SET FORTH IN THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
8.1TRUSTe shall defend and hold Client harmless from any claim by a third party that the Data infringes any trademark or copyright of that third party, provided: (i) TRUSTe is promptly notified of the claim; (ii) TRUSTe receives reasonable cooperation from Client necessary to perform TRUSTe's obligations hereunder; and (iii) TRUSTe has sole control over the defense and all negotiations for a settlement or compromise. The foregoing obligation of TRUSTe does not apply with respect to Data or portions or components thereof: (i) not supplied by TRUSTe; (ii) used in a manner not expressly authorized by this Agreement (iii) made in accordance with Client's specifications; (iv) modified by Client, if the alleged infringement relates to such modification; (v) combined with other products (hardware or software), processes or materials where the alleged infringement would not exist but for such combination; or (vi) where Client continues the allegedly infringing activity after being notified thereof and provided modifications that would have avoided the alleged infringement. 8.2In the event the Data is held by a court of competent jurisdiction to constitute an infringement, TRUSTe shall undertake the following: (i) procure for Client the right to continue use of the Data; (ii) modify the Data so that its use becomes non-infringing; (iii) substitute the Data with data which is substantially similar in functionality and performance. 8.3Client will defend, indemnify and hold TRUSTe and its officers, directors, employees, agents, subsidiaries and affiliates harmless from and against any and all damages arising out of or relating to third party claims based on Client's actual or alleged: (i) gross negligent acts or omissions, willful misconduct or fraud in connection with this Agreement; and/or (ii) violation of any statute, law, ordinance or regulation. Client will further defend, indemnify and hold TRUSTe and its officers, directors, employees, agents, subsidiaries and affiliates harmless from and against any and all Damages arising out of or relating to Client's use of the TRUSTe Mark(s) other than in accordance with this Agreement.
9. Term and Termination
9.1The initial and renewal terms of this Agreement shall be annually from the Effective Date of this Agreement. 9.2Termination for Convenience. Either party may terminate this agreement anytime after the initial term by providing the other party with 30 days advance written notice. There shall be no refund of any pre-paid but unused fees. 9.3Any obligations to pay fees incurred under Section 4 prior to termination and the provisions of Sections 2, 3, 5, 8, and 9 shall survive termination of the Agreement for any reason. The Confidentiality provisions of Section 6 shall survive for a period of 3 years after termination of the Agreement. 9.4Upon termination of this Agreement, Client shall cease using the Data immediately.
This Agreement is the entire agreement between Client and TRUSTe relating to Data Service and supersedes all prior, contemporaneous, or other oral or written communications, proposals, and representations with respect to its subject matter. No modification to this Agreement is binding unless in writing and signed by a duly authorized representative of each party. The waiver or failure of either party to exercise any right provided for herein shall not be deemed a waiver of any further right hereunder. If any provision of this Agreement is held invalid, all other provisions shall remain valid unless such validity would frustrate the purpose of this Agreement, and this Agreement shall be enforced to the full extent allowable under applicable law. Neither party may assign, except to a successor, its rights, duties or obligations under this Agreement without the prior written consent of the other party and any attempt to do so shall be void and of no effect. All provisions of license grant, proprietary rights, and indemnification shall survive termination or expiration of this Agreement. This Agreement shall be governed by and construed under the laws of the State of California without regard to conflicts of law provisions thereof. IN WITNESS WHEREOF, TRUSTe and Client have duly executed this Agreement intending to be bound thereby.
1. ACCEPTANCE OF TERMS. This TRUSTe Master License and Services Agreement ("Agreement") for TRUSTe products and services (referred to collectively as "Services" or "Programs" in this document) is by and between True Ultimate Standards Everywhere, Inc. (a Delaware corporation) ("TRUSTe") and you, your heirs, agents, successors and assigns ("You") (collective "Parties"), and is made effective as of the date of electronic execution. This Agreement sets forth the terms and conditions of Your use of TRUSTe Services and explains TRUSTe's obligations to You and Your obligations to TRUSTe in relation to the Services You purchase. This Agreement, any additional TRUSTe policies, applicable Program Amendment, ("Program Amendment"), which shall hereby be incorporated by reference, and modifications thereto, constitute the complete and exclusive agreement between You and TRUSTe concerning Your use of TRUSTe's Services, and supersede and govern all prior proposals, agreements, or other communications. You agree that TRUSTe may provide you with any communications, including, but not limited to, any agreements or amendments thereto, billing or account statements, disclosures, notices, responses to claims, transaction history, privacy policies, and all other information related to the Services outlined in this Agreement ("Communications") in electronic format. TRUSTe may provide all Communications in electronic format either: i) via e-mail, ii) by access to a Web Site that TRUSTe will designate in an e-mail notice sent to You; or iii) by requesting that You download a PDF file containing the Communication. An electronic version of this Agreement may be printed by selecting 'File', then selecting 'Print' from Your browser's menu. You may withdraw Your consent to receive Communications in electronic form, request to receive a paper copy of this Agreement, or notify TRUSTe of a change in Your e-mail address by contacting us at firstname.lastname@example.org. If you withdraw your consent to receive electronic communications, TRUSTe reserves the right to terminate this agreement for convenience. By clicking on the checkbox associated with this Agreement, You agree to the terms and conditions herein.
2. Definitions and Interpretation. Capitalized terms not defined herein (including the list of definitions in Exhibit 1 hereto) shall have the meaning ascribed to them in the Applicable Program Requirements. Unless specifically stated otherwise, references to "Sections" used in this Agreement refer to sections in this Agreement and references to "Sections" in the Program Amendment refer to sections in such Program Amendments.
3. Programs and Fees.
4. Your Adherence to the Program.
5. Use and Ownership of Applicable TRUSTe Mark(s).
6. Term and Termination; Additional TRUSTe Remedies.
7. Representations and Warranties.
9. Consequential Damages Waiver. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS OF THE PARTIES CONTAINED IN SECTIONS 7(a) AND 7(b), CONFIDENTIALITY OBLIGATIONS OF THE PARTIES CONTAINED IN SECTION 10, AND DAMAGES RESULTING FROM PARTICIPANT'S BREACH OF THE TRADEMARK OR OTHER INTELLECTUAL PROPERTY LICENSE PROVISIONS OF THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FROM LOST PROFITS, LOST USE, DAMAGE TO GOODWILL OR ANY OTHER THEORY EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Limitation of Liability. Except for the following, neither Party shall be liable to the other Party on any claim arising under or relating to this Agreement or any Program Amendment for an amount greater than the amount of Fees actually paid by You to TRUSTe under the Program Amendment which gave rise to the claim:
11. Receipt of Confidential Information.
Attn: Legal Department
55 2nd Street, 2nd Floor
San Francisco, CA 94105
Exhibit 1 - Definitions
The following definitions apply to all TRUSTe Programs. All definitions are not used for every Program.
1. "Action" means any investigation, demand, suit, legal proceeding, or other
legal action, initiated by any individual or entity, including any state or federal
governmental authority, which may end in a legally enforceable judgment by a court
of competent jurisdiction.
2. "Applicable TRUSTe Mark(s" means those TRUSTe Mark(s) identified in a Program Amendment executed by the Parties.
3. "Applicable Programs" means one or more Programs covered by Program Amendments executed by the Parties.
4. "Applicable Program Requirements" means the Program Requirements that cover the Applicable Programs.
5. "Authority" means a government entity having jurisdiction over the Your trade and/or privacy practices, including without limitation the Attorney General of any state, the United States Federal Trade Commission, any law enforcement agency or any foreign privacy authority.
6. "Confidential Information" means information concerning a Party's business not generally known to the public that has been marked as confidential by the disclosing Party prior to its disclosure to the receiving Party. By way of illustration only, Confidential Information may include trade secrets, know-how, inventions, draft privacy statements and disclosures, techniques, processes, algorithms, software programs, schematics, software source documents, contracts, customer lists, financial information, sales and marketing plans, information and business plans and other proprietary information, provided, however, that such information is marked as confidential. Confidential Information shall not include, even if it is marked as such, information that: (i) is already known to the receiving Party at the time of disclosure, which knowledge the receiving Party shall have the burden of proving; (ii) is, or, through no act or failure to act of the receiving Party, becomes publicly known; (iii) is readily observable and / or duplicable by the public; (iv) is legally received by receiving Party from a third party without restriction on disclosure; (v) is independently developed by receiving Party without reference to the Confidential Information of the disclosing Party; or (vi) is approved for release by written authorization of the disclosing Party.
7. "Internet" means the worldwide network of computers commonly referred to as the Internet.
8. "Notice of Action" means notice to TRUSTe, in compliance with the notice requirements of Section 11(f), which shall include, notification to TRUSTe of the Action, the name of the Authority, the status of the Action, within twenty (20) business days of learning of such Action
9. "Owner" means that the Party holds title to and is in control of the object in question.
10. "Privacy Statement" means the statements of Your information practices posted on its Web site(s), as such practices are updated from time to time. Your Privacy Statement includes, but is not limited to: (a) a single, comprehensive statement of all Your information practices ("Comprehensive Privacy Statement"); (b) a short notice, summary notice, or disclosure of specific information practices posted at the point of information collection or elsewhere, provided that You also posts a Comprehensive Privacy Statement; and/or (c) a P3P Statement.
11. "Program" means a certification program administered by TRUSTe. The TRUSTe Programs are found at www.truste.org.
12. "Program Requirements" means those requirements, conditions or other terms applicable to You under a TRUSTe Program, as such requirements are amended from time to time.
13. "TRUSTe Mark(s)" means collectively the registered certification marks and trademarks of TRUSTe.
14. "TRUSTe Name" means the name "TRUSTe".
15. "TRUSTe Web Site" means the Internet Web site located at http://www.truste.com.
16. "URL" means Universal Resource Locator.
This TRUSTe Program Amendment is entered into by You, in conjunction with the Master License and Services Agreement (which is specifically identified on the signature page hereto) ("Agreement") and all the terms of the Agreement are hereby incorporated by reference. Capitalized terms not defined herein shall have the meaning ascribed in the Agreement or the Program Requirements, as applicable.
You agree that TRUSTe may provide you with any communications, including, but not limited to, any agreements or amendments thereto, billing or account statements, disclosures, notices, responses to claims, transaction history, privacy policies, and all other information related to the Services outlined in this Agreement ("Communications") in electronic format. TRUSTe may provide all Communications in electronic format either: i) via e-mail, ii) by access to a Web Site that TRUSTe will designate in an e-mail notice sent to You; or iii) by requesting that You download a PDF file containing the Communication. An electronic version of this Agreement may be printed by selecting 'File', then selecting 'Print' from Your browser's menu. You may withdraw Your consent to receive Communications in electronic form, request to receive a paper copy of this Agreement, or notify TRUSTe of a change in Your e-mail address by contacting us at email@example.com. If you withdraw your consent to receive electronic communications, TRUSTe reserves the right to terminate this agreement for convenience. By clicking on the checkbox associated with this Agreement, You agree to the terms and conditions herein.
1. Additional Definitions. The following definitions apply to this Amendment:
a. "Applicable TRUSTe Mark(s)" means those marks attached hereto in Exhibit A.
b. "Program Requirements" means the Privacy Program Requirements, which are attached hereto as Exhibit B.
c. "You Program Materials" for the Privacy Program shall include the Privacy Statement and any other documentation required by and relied upon by TRUSTe.
2. Program. You hereby requests to participate in the Privacy Program and, upon completion of the application and acceptance process set forth in Section 4 below, agrees that it shall be bound by the Program Requirements.
3. Term. This Amendment shall be terminated only by action of the Parties pursuant to Section 5 of the Agreement.
4. Application Process. You shall (a) follow the application process described on the TRUSTe Web Site, or (b) submit the license fee, the current Privacy Statement, and all other requested You Program Materials to TRUSTe for review and acceptance in TRUSTe's sole discretion pursuant to the Program Requirements.
5. Use of the Applicable TRUSTe Mark(s). You are entitled to display the Applicable TRUSTe Mark(s) on the properties listed in Annex 1, pursuant to Section 4(b) of the Agreement, and in accordance with TRUSTe's. seal usage guidelines.
6. Recertification. You shall submit the Fees and shall re-submit its properties listed in Annex 1 for re-certification in accordance with the You Responsibilities Section of the Program Requirements, annually.
7. Children's Privacy Seal Program Requirements. If any of Your properties listed in Annex 1 are directed at and collect Personally Identifiable Information from children under the age of thirteen (13), or if any section of Your properties listed in Annex 1 is directed at and collects Personally Identifiable information from children under the age of thirteen (13), or if You has actual knowledge that it is collecting or maintaining Personally Identifiable Information from children under the age of thirteen (13) through its properties listed in Annex 1, You shall participate in a FTC approved COPPA Safe Harbor program.
8. Notice To TRUSTe Of Certain Events. You shall notify TRUSTe in writing, at the same time that such information becomes publicly known, or within ten (10) business days of the event, whichever is sooner, of:
a. A change in Your name (other than an assignment); or
b. A change of name for the properties listed in Annex 1.
9. Additional Representations and Warranties. In additions to the representations and warranties of Section 6 of the Agreement, You further represents and warrants to TRUSTe as of the Effective Date, and as long as this Program Amendment is in force, that:
a. You is the Owner of the properties listed in Annex 1;
b. The Privacy Statement(s) and any other You Program Materials provided by You to TRUSTe constitute true, accurate and complete representations of the privacy practices adopted by You and are in effect as of the date of their delivery to TRUSTe, or as of the date of any amendment submitted by You; and
10. Termination Obligations. Upon termination of this Program Amendment, pursuant to Section 5 of the Agreement, in addition to all other obligations imposed by the Agreement, You shall:
a. continue to comply with its Privacy Statement until it has posted a notification on the properties listed in Annex 1 or otherwise notified users of the properties listed in Annex 1 of a change to its Privacy Statement and its withdrawal from the Privacy Program; and
b. treat Personally Identifiable Information and Third Party Personally Identifiable Information (as defined in the Privacy Program Requirements) collected while this Program Amendment is in force in accordance with Your Privacy Statement in effect at the time of collection.
Properties Subject to this Program Amendment:
Description of TRUSTe Mark(s)
The "TRUSTe Certified Privacy" word and logo mark in the following form, color, and size:
Exhibit B: Program Requirementshttp://www.truste.com/privacy-program-requirements/index.html