This Truv Reseller Program Agreement (“Agreement”) governs participation in Truv’s reseller and partner program and is entered into between Truv Inc. (“Truv”) and the entity accepting this Agreement or otherwise participating in the reseller program (“Reseller”).
By executing an applicable Order Form, submitting a reseller application, accessing the Products, registering Customers, using reseller credentials, or otherwise participating in Truv’s reseller program, Reseller agrees to be bound by this Agreement as of the date of such participation or acceptance (“Effective Date”).
If the individual accepting this Agreement is acting on behalf of an entity, such individual represents and warrants that they have authority to bind such entity to this Agreement.
1.1License. Subject to Reseller’s payment of all applicable fees and compliance with this Agreement, Truv grants to Reseller a non-exclusive, non-transferable, non-sublicensable right and license during the Term and only within the Territory to (i) integrate the Reseller Application with and access the Truv Platform solely for the purpose of reselling the Products to the Reseller’s Customers who have agreed to use the Products only for their internal business purposes and not for the purpose of resale or distribution to third parties; (ii) download one (1) copy of the sandbox API Key; (iii) use the production API Key to access the API through Reseller’s Application solely for the purpose of Reseller reselling Products to its Customers and for no other purpose, and (iv) make a reasonable number of copies of the API Keys solely for testing, backup or archival purposes. Truv shall have the right, in its sole discretion, to withhold issuing any API Key to any Customer. Reseller shall identify each Customer having access to the API Key and the fees being charged to the Customer in an acceptable and easily accessible format to Truv, as described hereinafter in Section 1.4.9.
1.2Modifications. Truv reserves the right, to modify the Truv Platform and/or API Keys from time to time by adding, deleting, or modifying features to improve the user experience; provided, however, that such additions, deletions, or modifications to features: (i) will not materially decrease the overall functionality of the Truv Platform or API Key; and (ii) will be described by Truv through updates to the Documentation.
1.3Service Level. Truv provides certain Service Level Commitments to its clients as indicated in Exhibit C to this Agreement. Notwithstanding the foregoing, if the provider of a Data Location ceases to make the Data Location available for interoperation with the corresponding Truv Platform features in a manner acceptable to Truv, Truv cannot guarantee the continued availability of Truv Platform features, and may cease providing them.
1.4Restrictions and Reseller Responsibilities.
1.4.1Restrictions on Use. Reseller will not (and will not authorize, permit, or encourage any third party to): (i) allow anyone other than Reseller’s authorized personnel, for whose acts and omissions hereunder Reseller agrees to be responsible as though such acts or omissions were those of Reseller itself, (in accordance with the terms of this Agreement) or Consumers by way of the Truv Bridge, as defined in Section 12 of this Agreement, to access and use the Truv Platform or API Key; (ii) share its login credentials to the Truv Platform or API Key with any third party save as contemplated hereby; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code of the Truv Platform, Truv Bridge or API Key; (iv) modify, adapt, or translate the Truv Platform or API Key; (v) make any copies of the Truv Platform or API Key (save as contemplated by Section 1.1. hereof); (vi) resell, distribute, or sublicense the Truv Platform or API Key, or use the Truv Platform or API Key for the benefit of anyone other than Reseller or its Customers as specifically set forth herein and consented by the Consumers, outside the Territory; (vii) save, store, copy or archive any portion of the Truv Platform or API Key outside the Truv Platform other than those outputs generated through the intended functionality of the Truv Platform as set forth in the Documentation, as defined, without the prior, written permission of Truv in each instance; (viii) remove or modify any proprietary markings or restrictive legends placed on the Truv Platform or API Key, unless approved by Truv in writing; (ix) use the Truv Platform or API Key in violation of any Applicable Law, in order to build a competitive product or service, or for any purpose not specifically permitted in this Agreement; (x) introduce, post, or upload to the Truv Platform or API Key any Prohibited Content; (xi) either directly or indirectly, itself or through any agent or third party request, compile, store, maintain or use the Products (including any of the information provided in connection therewith) to build its own database; (xii) copy or otherwise reproduce the Products (including any of the information provided in connection therewith); (xiii) resell or transfer the Products from one order (including any of the information provided in connection therewith) to more than one person or entity or to any person or entity who is not the end user of the Products (including any of the information provided in connection therewith); or (xiv) circumvent any processes, procedures, or technologies that Truv has put in place to safeguard the Truv Platform or API Key.
1.4.2Reselling Restrictions. To the extent permitted by law, Reseller shall not merge the information or services obtained from the Products with any information from a non Credit Reporting Agency (“CRA”) or with other information provided by any other CRA. Furthermore, Reseller acknowledges and agrees not to use its own GSE certifications or any other certifications in connection with verifications, Products, and information obtained through Truv’s Platform, and to use the verifications and information obtained through the use of the Products and Truv’s Platform only with Truv’s GSE certification.
1.4.3Compliance. Truv has the ongoing right to monitor compliance with this Agreement and Applicable Laws. If any such monitoring reveals that Reseller is not using the Truv Platform or API Key, in compliance with this Agreement, or is operating not in compliance with Applicable Laws, then Reseller must promptly remedy any such non-compliance within ten (10) days. If, after the ten (10) days have passed and Reseller is continuing to operate in non-compliance, as determined by Truv, Truv retains the right to terminate this Agreement in accordance with Section 3.2 of this Agreement.
1.4.4Authorized Users; Accounts. Reseller agrees to be responsible and liable for all actions and inactions by its employees and agents that Reseller permits to access or use the Truv Platform or API Key, as if such action or inaction were an action or inaction of Reseller. Reseller is responsible for maintaining control over Reseller’s account on the Truv Platform, including the confidentiality of any login credentials, and is responsible for all activities that occur on or through Reseller’s account and its authorized users’ accounts, whether authorized directly or indirectly by Reseller or not. If any incident occurs resulting from a breach of security of the Truv Platform, by any partial wrongful act or omission of Reseller, its employees, or agents, the Parties will cooperate together to resolve the issue by conducting the following, without limitation the: (i) preparation and mailing or other transmission of such notices and other communications to Customers, suppliers, employees, contractors or other contractual partners of Truv or others as such Party deems reasonably appropriate; (ii) if determined necessary by Truv, establishment of a call center, website, or other communications procedures in response to such security breach (e.g., customer service FAQs, talking points and training); (iii) public relations and other similar crisis management services; (iv) legal and accounting fees and expenses reasonably incurred and associated with Truv’s investigation of and response to such event; (v) costs for commercially reasonable credit monitoring, watch list and similar services that are advisable under the circumstances; (vi) fees and expenses associated with a forensic investigation or analysis of the security breach; (vii) the cost of reissuing Customer documentation or accounts, (viii) reimbursing Customers for unauthorized payments; (ix) fines and charges imposed by any applicable governmental body, and (x) expenses incurred in connection with investigation of the security breach by any applicable governmental body. For the avoidance of doubt, any partial involvement of Reseller will result in Reseller being responsible for reasonable costs associated with addressing and responding to the incident arising from the security breach, detailed above.
1.4.5Consumer Consent; Reseller Application Consumer Terms. For each and every Data Location from which Reseller desires to collect and/or post Consumer Data, Reseller shall obtain the Consumer’s express authorization and consent for Customer and Truv, through the Truv Platform and/or API Key, to connect to such Data Location on the Consumer’s behalf to obtain and/or post such Consumer Data. In connection with the foregoing, Reseller shall require all Consumers to accept and affirmatively agree to terms and conditions of use relating to the use of its Reseller Application (the “Reseller Application Consumer Terms”). The Reseller Application Consumer Terms shall (i) include Consumer consent as required by this paragraph and shall incorporate a complete and accurate copy of Reseller’s privacy policy, each in accordance with all Applicable Laws, including, without limitation, all U.S. and foreign privacy laws; and (ii) shall require Consumers to agree to and accept Truv’s Terms and Privacy Policy via a Truv link prior to access or use of Reseller’s Application.
1.4.6Consumer Account Deletion. Truv will make Truv Bridge available to the applicable Consumer to enable such Consumer to manage their data connection preferences through a Truv link. If a Consumer revokes his or her prior authorization to Truv to retrieve Consumer Data from any Data Location(s) or otherwise requests any removal, correction, deletion, or inspection of any Consumer Data from Truv then Truv will as the case may be either delete the applicable Consumer Data from the Truv Platform or terminate Reseller’s access to such Consumer Data, depending upon the Consumer request. Truv will further notify Reseller of any revocation or request from a Consumer so that Reseller may work with the applicable Customer and take such further internal actions as are required by Applicable Laws.
1.4.7Reseller’s Application and Equipment. Reseller is responsible for maintaining its applications and obtaining and maintaining any equipment, licenses, or ancillary services needed to connect to, access, or otherwise use the Truv Platform and/or API Key, including modems, hardware, servers, software, operating systems, networking equipment, and web servers. Reseller is responsible for maintaining the security of such equipment. Truv is not responsible for any issues or delays in the Truv Platform or API Key caused by the failure of Reseller’s Application or any such ancillary equipment.
1.4.8Data Locations. Consumers may, through Reseller’s Application as integrated with the Truv Platform through the API, direct Truv to connect to certain Data Locations on the Consumer’s behalf in order to retrieve Consumer Data and provide it to Reseller. Only Data Locations approved by a Consumer shall be permitted to share the applicable Consumer Data with Reseller, and then only upon the Consumer’s express direction and consent. Nothing in this Agreement is intended to create any contractual relationship by and between Reseller and the Data Locations or Truv and the Data Locations. Consumer is the sole contracting party with the Data Locations and Truv and Reseller shall be acting as the Consumer’s agent and/or attorney in fact when accessing Consumer Data on Consumer’s behalf through such Data Locations.
1.4.9Customer Registration Process. Reseller shall register prospective Customers through Truv’s then-current reseller registration process, as outlined in Exhibit A, or portal, including submission of such information as may reasonably be required by Truv to evaluate the prospective Customer’s eligibility for access to the Products. Reseller acknowledges and accepts that it is its responsibility to ensure that each deal meets the requirements established in this Agreement and in the corresponding Order Form executed between Reseller and Truv. Truv may reject registrations that do not satisfy program requirements, compliance obligations, or applicable law. Only registered deals shall be considered as Reseller’s Customers with access to the Products. Truv reserves the right to modify or replace the registration process from time to time upon notice to Reseller.
1.4.10Customer Agreements. Prior to providing a Reseller’s Customer with access to the Products, Reseller shall execute contracts with Reseller’s Customers for the use of the Reseller Application and offering of the Products via the Truv Platform, which shall include the same terms and conditions contained herein (“Customer Agreement(s)”). Upon Truv’s reasonable written request, Reseller shall provide information reasonably necessary to verify compliance with this Agreement and applicable Order Forms.
1.4.11Business Conduct. Reseller warrants, represents and covenants that in exercising its rights under this Agreement, it will at all times: (a) conduct business in a manner that reflects favorably at all times on Truv and its products or technology and the good name, good will, and reputation of Truv, (b) avoid deceptive, misleading, reckless or unethical practices, and (c) not make any false or misleading representations with regard to Truv or the Truv Platform or API Key, or any representations or warranties with respect to the Truv Platform or API Key that have not been pre-approved in writing by Truv, the failure of Reseller or its representatives to comply with, or to perform its business conduct obligations, is considered a breach of an obligation under this Agreement, subjecting Reseller to termination under Section 3.2 of this Agreement. These obligations shall also apply to any action taken by Reseller, its officers, directors, employees, Affiliates, or agents.
1.4.12Customer Support. Reseller will be solely responsible for providing and maintaining customer service and support to Customers with respect to the Truv Platform and API Key. Truv will provide email support to Reseller in connection therewith.
1.4.13Promotional Activities. Reseller is authorized by Truv to market and resell the Products to its Customers, for which Reseller shall market the Truv Platform using only marketing and promotional materials that have been provided by Truv or approved in writing by Truv prior to use. Reseller shall have the right to use Truv’s trademarks and logos (the “Marks”) solely as necessary to market and promote the Truv Platform in accordance with this Agreement and only in a manner that complies in all material respects with Truv’s trademark usage policies in effect, as may be changed or utilized from time to time. If Reseller, in the course of exercising its rights hereunder, acquires any goodwill or reputation in any of the Marks, all such goodwill or reputation will automatically vest in Truv when and as, on an on-going basis, such acquisition of goodwill or reputation occurs, as well as at the expiration or termination of this Agreement, without any separate payment or other consideration of any kind to Reseller, and Reseller agrees to take all such actions necessary to effect such vesting. Reseller will not contest the validity of any of the Marks or Truv’s exclusive ownership of them. During the term of this Agreement, Reseller will not adopt, use, or register, whether as a corporate name, trademark, service mark, or other indication of origin, or any of the Marks, or any word or mark confusingly similar to them in any jurisdiction. Upon the expiration or termination of this Agreement for any reason, Reseller will immediately stop all activities hereunder, cease using the Marks, and not thereafter use the Marks for any reason.
1.4.14Training. Reseller shall provide training and training materials to its End Users Customers to ensure compliance with applicable law. Reseller acknowledges and agrees that no training constitutes, or substitutes for, legal advice, and Reseller should consult with its own legal counsel.
2.1Payment. Reseller will pay Truv for its access and use of the Truv Platform and API Key, in accordance with the applicable Order Form attached to this Agreement.
2.2Dispute. Upon written notice to Truv, Reseller, acting in good faith, may withhold payment for any fees on Truv’s invoices that Reseller reasonably disputes with documented justification for the dispute. Reseller will pay the undisputed portion of any invoice in accordance with the payment terms set forth herein and the Parties will negotiate in good faith to resolve the dispute within thirty (30) days of Reseller’s dispute notice. Reseller’s non-payment of fees disputed in accordance with this Section does not constitute default by Reseller and does not entitle Truv to suspend or delay its provision of services or of any information or materials, except as otherwise established by this Agreement.
2.3Past Due Fees. Unpaid Fees for more than fifteen (15) days past due are subject to a finance charge of 1.5% per month, or the maximum permitted by law, whichever is lower. Additionally, if Reseller’s account is fifteen (15) days or more overdue (except for charges then under reasonable and good faith dispute), Truv reserves the right to suspend Reseller’s access to the Products until such amounts are paid in full.
2.4Future Functionality. Reseller agrees that its purchases are not contingent on the delivery of any future or updated functionality or features, or dependent on any oral or written public comments made by Truv regarding future functionality or features.
2.5Taxes. Fees are exclusive of all applicable taxes. Reseller is responsible for paying all taxes associated with its activities hereunder other than taxes based on Truv’s net income. In the event Truv has the legal obligation to pay or collect taxes for which Reseller is responsible under this Agreement, the appropriate amount of such taxes will be allocated and invoiced to and paid by Reseller, unless Reseller provides Truv with a valid tax exemption certificate.
2.6Certification of Compliance. Reseller shall provide reporting reasonably required under the applicable Order Form. Upon reasonable prior written notice and no more than once annually, Truv may audit Reseller’s compliance with this Agreement solely to verify compliance with applicable usage restrictions, payment obligations, and applicable law.
3.1Term. The Agreement will commence on the Effective Date for an initial period of 12 months or for the duration during which all subscriptions, as identified in the applicable Order Forms, remain valid and in due force, or in the event of the applicability of sections 3.2 or 3.3 hereunder.
3.2Termination.
3.2.1Breach. Either Party may terminate this Agreement in whole or in part if the other Party breaches any of its obligations under this Agreement and fails to cure such breach within thirty (30) calendar days of notice from the non-breaching Party. Notwithstanding the foregoing, in the event Reseller fails to comply with its payment obligations, Truv shall have the right to terminate this Agreement upon a thirty (30) days’ notice to Reseller.
3.2.2Insolvency, Assignment, Bankruptcy and Acquisition Provisions. Additionally, this Agreement will terminate if either party ceases to conduct business in the normal course, becomes insolvent, makes a general assignment for benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, or avails itself of or becomes subject to, any proceeding under federal bankruptcy laws including but not limited to, voluntarily or involuntarily commencing any proceeding or filing a petition seeking relief under Title 11 of the United States Code or any other federal, state or foreign bankruptcy, insolvency, liquidation or similar law. In the event Reseller is wholly or partially acquired, Truv shall have the right at its sole discretion to decide whether to terminate the Agreement or continue the relationship with the acquiring entity.
3.3Termination for Convenience. This Agreement may be terminated by Truv for convenience upon sixty (60) days’ prior written notice to Reseller. In such an event, Reseller shall pay Truv all undisputed fees then due.
3.4Effects of Termination Notification. Reseller acknowledges and accepts that upon receipt of a termination notification, Reseller shall effectuate a smooth transition and migration of its operations off the Truv Platform. During this 30-day termination notification period, Reseller may continue to access and use the Truv Platform on a regular basis and as needed for the purposes of migrating off of the Truv Platform.
3.5Effects of Termination. Reseller shall immediately stop all work hereunder, and cease all access to the Truv Platform, and use of API Keys, and comply with Section 8.5. “Return of Materials”. Subject to the terms of this Contract, Reseller shall pay Truv all outstanding invoices no later than the date of the effective termination of this Agreement.
3.6Survival and Continuing Obligations. Termination by either Party shall not relieve either Party from any obligation accrued through the date of termination. In addition, the terms and conditions set forth in this Agreement which by their nature would continue beyond termination of this Agreement including without limitation, Sections titled Definitions, Intellectual Property, Survival and Continuing, Disclaimers, Indemnification, Limitation of Liability, Confidentiality and General Provisions, shall survive the expiration or earlier termination of this Agreement.
4.1Restrictions. Reseller will not, nor attempt to: (1) interfere with, modify or disable any features or functionality of the Truv Platform or API Key, including any mechanisms used to restrict or control the Truv Platform or API Key, such as anti-circumvention measures; (2) reverse engineer, decompile, disassemble or derive source code, algorithms, structure or organizational form of the Truv Platform or API Key; (3) defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms of the Truv Platform or API Key; (4) allow any unauthorized third-party to access or use the Truv Platform or API Key; or (5) sublicense, lease, rent, assign, distribute, resell or otherwise transfer or disclose the Truv Platform or API Key to any third party.
4.2Intellectual Property. Truv and its licensors own and shall retain all right, title, and interest in and to the Truv Platform, API, API Keys, and Documentation, including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all intellectual property rights therein or associated therewith (collectively, the “Truv IP”). No ownership rights in or to the Truv IP are transferred to Reseller or any Customer by this Agreement or otherwise. Reseller does not have any rights in or to the Truv IP except for the limited express rights granted in this Agreement. As between Truv and Reseller, Reseller and its licensors own and shall retain all right, title, and interest in and to the Reseller Application, enhancements, or translations made thereto, and all intellectual property rights therein or associated therewith (collectively, the “Reseller IP”). No ownership rights in or to the Reseller IP are transferred to Truv or any Customer by this Agreement or otherwise. Truv does not have any rights in or to the Reseller IP except for the limited express rights granted in this Agreement.
4.3Consumer Data. The Parties acknowledge that each Consumer owns all rights, title, and interest in and to its Consumer Data.
4.4Feedback. If Reseller provides any feedback to Truv concerning the functionality or performance of the Truv Platform or API Key (including identifying potential errors and improvements), Reseller hereby assigns to Truv all right, title, and interest in and to the feedback, and Truv is free to use the feedback in any manner and for any purpose without payment or restriction.
5.1Security.
5.1.1 Truv and Reseller must maintain the confidentiality of any Confidential Information and Personal Identifiable Information (“PII”) as such term is defined in this Agreement, by developing, implementing and maintaining an information security program, which may include but is not limited to technical and physical safeguards to protect the information collected, accessed, stored, processed, or received by Reseller for the purposes of this Agreement, to prevent unauthorized disclosure or misuse, and to anticipate any reasonably foreseeable threats to the confidentiality of the aforementioned information. Additionally, Reseller’s information security program includes Reseller’s obligation to maintain compliance with an annual audit for SOC 2 Type 2 report or any similar industry required report or certification. This audit shall be conducted by an independent third-party auditor. The audit shall assess Reseller’s controls and processes in accordance with the criteria outlined in the SOC 2 or applicable industry required report framework.
5.1.2Unauthorized Access. In the event Reseller discovers or becomes aware of any unauthorized access or misuse of Confidential Information or PII, or intrusion to Reseller’s systems resulting on the unauthorized disclosure of Confidential Information or PII, Reseller will notify Truv of the corresponding security breach within the first forty-eight (48) hours from the discovery of the security breach, and cooperate with Truv to protect the Confidential Information and/or PII, and to mitigate the damage or impact caused by the security breach, and comply with any mitigation actions required by Applicable Law.
5.2Compliance with Applicable Laws. Reseller’s course of business and information security program must comply with all applicable federal and state laws as well as industry best practices. Each Party must not directly or indirectly include in the Confidential Information, PII or any other information exchanged between the Parties for the purposes of this Agreement any PII of any resident of the European Union (“EU Resident”) nor email or collect any information from any EU Resident without: (a) obtaining the prior written consent of the other Party; and (b) ensuring that Party’s compliance with the requirements of all Applicable Law, including the European Union General Data Protection Regulation (the “GDPR”). In addition, Reseller must not provide information to Truv from any country outside of the United States without Truv’s previous written consent and the Parties entering into Standard Contractual Clauses (or other ad hoc clauses to validate the transfer of data).
6.1Consumer Data. Reseller’s use of the Consumer Data shall be limited solely to the permissible purpose for which it was collected in connection with the provision of services by Reseller to the applicable Customer, as agreed in writing by Reseller and the applicable Customer. Neither Party shall (i) use Consumer Data for (a) unlawful purposes or (b) in violation of any Applicable Law, including, without limitation any U.S. or foreign Privacy Law; or (ii) resell any Consumer Data (save Reseller’s resale of the Products to the applicable Customer) or disclose it for any purpose other than as necessary for the effectuation of its obligations under its contracts with a Customer. Reseller acknowledges and agrees that Consumer Data may contain personal and/or sensitive information. Each Party will employ commercially reasonable physical, administrative, and technical safeguards to secure the Consumer Data from unauthorized use or disclosure. Reseller acknowledges and agrees that Consumer Data is not generated and not verified for accuracy by Truv and Truv shall not be responsible for the accuracy, completeness, currentness or validity of such data.
6.2Disclosure and Consent. Reseller accepts and acknowledges to be fully liable and responsible for (i) any unauthorized disclosure of PII under their control to third parties; (ii) implementing and monitoring procedures to comply with Applicable Laws and implementing procedures concerning the safeguarding and disposal of PII; (iii) maintaining safeguards and taking all necessary technical, physical and organizational precautions to ensure that PII is protected from unauthorized access, alteration, destruction, disclosure, erasure, manipulation, and destruction by third parties while PII is in the possession or under the control of each Party and ensure that PII is not processed in other ways contradictory to privacy and/or data protection Applicable Laws, and upon request, provide the other Party with all information that the other Party reasonably requests regarding the processing of PII, including, but not limited to, where and how PII is stored, who has access PII and for what purpose, and what security measures are taken to ensure that PII is protected from unauthorized access, alteration, disclosure, erasure, manipulation, and destruction while in the possession or under the control of the Disclosing Party, as defined by Section 8.1; (iv) maintaining sufficient procedures to detect and respond to security breaches involving PII and will immediately inform Truv when Reseller suspects or learns of any other security breach involving PII and take corrective action; (v) providing Truv with such information regarding the PII security breach as Truv reasonably requests; (vi) providing Truv with evidence and results of annual audits related to Reseller’s security operation such as SOC 2 when requested by Truv; and (vi) ensuring that all Consumers and Consumer Users are presented with and required to acknowledge and consent Truv contacting them for the purpose of the provision of the Products, and Truv shall be responsible for presenting them and getting their consent to Truv’s Terms and Privacy Policy prior to initiating any activity through the Products.
In the event a Consumer removes the authorization granted to Customer, Reseller or Truv, Truv will terminate Reseller’s and Customer’s access to such Consumer Data, and Reseller and Customer shall terminate any third party use and access to the Truv Platform. Furthermore, if a Consumer deletes its account with Reseller, Reseller shall immediately notify Truv. Additionally, Reseller shall issue and share with Truv a monthly report including active, non-active, canceled and terminated accounts.
6.3Data Locations. Consumers may, through the Truv Bridge, direct Truv to connect to certain Data Locations on the Consumer’s behalf to retrieve Consumer Data and provide it to the Reseller. Only Data Locations approved by a Consumer shall be permitted to share the applicable Consumer Data with Truv for provision to Reseller, and then only upon the Consumer’s express direction and consent collected by Truv. Nothing in this Agreement is intended to create any contractual relationship by and between Reseller and the Data Locations or Truv and the Data Locations. Consumer is the sole contracting party with the Data Locations and Truv shall be acting as Consumer’s agent and/or attorney in fact when accessing Consumer Data on Consumer’s behalf through such Data Locations.
6.4Aggregated Data. Reseller acknowledges and agrees that Truv may aggregate data relating to Reseller’s usage of the Truv Platform and/or API Key, Consumer Data and data relating to Reseller’s Customers’ and Consumers’ use of the Truv Platform via the Reseller Application, together with data relating to Truv’s other clients and users of the Truv Platform, and API Key, in an anonymous manner that removes all personal information and information about the source of such data (the “Usage Data”). For the avoidance of doubt, Usage Data will not identify Reseller or any of its Customers and Consumers.
7.1Representations and Warranties. Each Party represents and warrants to the other that: (i) it is a business entity duly organized and in good standing as required under all jurisdictions where it does business; (ii) its execution, delivery and performance of this Agreement has been duly authorized by all necessary company action; (iii) it has all necessary authorizations, consents, and permissions necessary to perform under this Agreement; and (iv) this Agreement constitutes a legal, valid and binding obligation enforceable against such Party.
7.2Compliance with Applicable Laws. Each Party represents and warrants to the other Party that it will comply with all Applicable Laws in connection with exercising its rights or performing its obligations under this Agreement. Each Party acknowledges and agrees that, in connection with Reseller’s use of the Truv Platform, Consumer Data will be transmitted or made available in a mechanical manner, and that neither Truv nor Reseller will alter the substance of the Consumer Data (save operational formatting changes or as requested by a Consumer as contemplated by this Agreement or Applicable Law). Each Party will be acting only as a service provider and/or a conduit, and not as a consumer-reporting agency, in connection with the Consumer Data processed and transmitted under this Agreement. Truv is providing the Consumer Data only as requested by the Consumers. Each Party acknowledges that each Party is simply providing the service of transferring data as requested and authorized by the owner thereof from one party to the party directed and authorized to receive the data by the owner thereof. Each Party acknowledges that if the other acts as a “consumer reporting agency” under the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) (“FCRA”) and for the purposes of this Agreement, the Parties will discuss in good faith any additional requirements imposed by Applicable Law. Furthermore, Reseller shall comply with any then current guidelines and policies shared by Truv to Reseller from time to time. Prior to providing a Reseller’s Customer with access to the Products, Reseller shall enter into a written agreement with such Reseller Customer in which the Reseller Customer agrees that they will comply with all applicable federal, state and local statutes, regulations, and rules and, as between Truv and Reseller, Reseller shall be liable for any failure by such Reseller Customer to so comply. Truv may, in its sole discretion, revise the terms, conditions, Products or pricing set forth in this Agreement (including without limitation the right to withdraw or restrict affected data) to meet any requirement imposed by federal, state, or local law, rule or regulation, or to address matters concerning privacy and confidentiality, upon reasonable notice to Reseller.
7.3Disclaimers. EXCEPT FOR THE LIMITED WARRANTIES DESCRIBED IN THIS SECTION 7, TRUV MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE TRUV PLATFORM, PRODUCTS, API, API KEY, DOCUMENTATION, CONSUMER DATA OR OTHERWISE RELATING TO THIS AGREEMENT, AND SPECIFICALLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, ACCURACY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE TRUV PLATFORM, PRODUCTS, API, API KEY, DOCUMENTATION, CONSUMER DATA AND ANYTHING ELSE PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE;” TRUV DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL SATISFY RESELLER’S REQUIREMENTS, ARE WITHOUT DEFECT OR ERROR, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED. FURTHER, TRUV MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING ANY DATA LOCATION OR THE CONSUMER DATA, ITS ACCURACY, COMPLETENESS, OR CURRENTNESS. TRUV DOES NOT CONTROL OR HAVE ANY CONTRACTUAL RELATIONSHIP WITH ANY DATA LOCATION, AND HAS NO OBLIGATION TO, VERIFY OR REVIEW THE END USER DATA. RESELLER’S RELIANCE ON ANY CONSUMER DATA IS AT ITS OWN RISK.
8.1Confidential Information. “Confidential Information” means information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) either directly or indirectly in writing, orally, or by drawings or inspection of equipment and which is marked as confidential or proprietary, is customarily considered confidential between business Affiliates, or should reasonably be understood to be confidential based on the nature of the information and circumstances of the disclosure. Without limiting the foregoing, Truv’s Confidential Information includes all Truv Platform and related technology, source code and documentation, as well as any and all data obtained through the Truv Platform, Truv policies (including its Terms and Privacy Policy). Reseller’s Confidential Information shall include all non-public data shared with Truv pursuant to this Agreement, the Reseller Application and related technology, source code and documentation. Each Party agrees to treat as Confidential Information the terms of this Agreement. Confidential Information does not include information that the Receiving Party can show (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party; (b) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (c) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files and records immediately prior to the time of disclosure; (d) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
8.2Safety and Security. The Receiving Party will keep confidential and will exercise at least the same degree of care with respect to, the Disclosing Party’s Confidential Information that the Receiving Party exercises to protect its own Confidential Information. At a minimum, the Receiving Party will adopt, maintain and follow security practices and procedures reasonably designed to safeguard the Disclosing Party’s Confidential Information from any unauthorized disclosure, access, use or modification, reverse engineering, any misappropriation, theft, destruction, or loss, or any inability to account for Confidential Information. For the avoidance of doubt, the Receiving Party may disclose the Disclosing Party’s Confidential Information if required by law, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement (to the extent legally permitted to do so) prior to disclosure and reasonable assistance at the Disclosing Party’s expense with the Disclosing Party’s efforts to obtain an order protecting the information from public disclosure.
8.3Non-use and Non-disclosure. The Receiving Party will only use or reproduce the Disclosing Party’s Confidential Information to the extent necessary to enable the Receiving Party to fulfill its obligations under the Agreement, or to enable the Party to exercise its rights as contemplated by the Agreement. In addition, the Receiving Party will disclose the Disclosing Party’s Confidential Information only to those of the Receiving Party’s personnel or Affiliates who have a “need to know” the Confidential Information, and then only to the extent necessary to fulfill the purposes contemplated by the Agreement or as occurs naturally within the personnel’s scope of responsibility. The Receiving Party will ensure that each of its personnel is bound to uphold the Receiving Party’s obligations of confidentiality.
8.4Privacy Policies and Applicable Laws. The Parties acknowledge that both Parties are subject to policies and to Privacy Laws governing and restricting the collection, storage, processing, dissemination and use of information identifying or reasonably capable of identifying an individual (otherwise known as PII), including that related to Consumers, customers, service providers, personnel, and other persons connected with such persons.
8.5Return of Materials. Upon the termination or expiration of this Agreement, or upon the Disclosing Party’s earlier request, the Receiving Party will deliver to the Disclosing Party all of the Disclosing Party’s property or Confidential Information that the Receiving Party may have in its possession or control. Notwithstanding the foregoing, the Receiving Party will not be required to return materials that it must retain in order to comply with applicable law, or properly perform under this Agreement provided that in all of the foregoing cases any such property or Confidential Information so retained shall remain subject to the protections of this Agreement and shall be used for no other purpose.
9.1Indemnification by Truv. Subject to Section 9.2 (Exclusions), Truv will defend, indemnify, and hold Reseller harmless from and against any and all damages, losses, liabilities, fines, penalties, judgments, costs, and expenses, including reasonable attorneys’ fees (“Losses”) incurred by Reseller in connection with any third-party action, claim, or proceeding (each, a “Claim”) arising in connection to the fact that Reseller’s access and use of the Truv Platform, API Key, Consumer Data or Products in accordance with this Agreement infringes, misappropriates or violates any United States patents, trademarks, copyrights, trade secrets or privacy or contractual rights of a third party (an “Infringement Claim”); or (ii) Truv’s gross negligence or willful misconduct (or that of any persons under Truv’s control. This Section states Reseller’s sole and exclusive remedy, and Truv’s sole and exclusive liability, regarding any Infringement Claim.
9.2Exclusions. Truv is not obligated to indemnify, defend, or hold Reseller and its officers, directors, members, agents and employees harmless with respect to any Infringement Claim to the extent: (i) the Infringement Claim arises from or is based upon Reseller’s or any of its contractors and/or personnel’s use of: (a) the Truv Platform or API Key not in accordance with the Documentation, this Agreement, or Applicable Law or the use of any Consumer Data or Products other than in accordance with this Agreement or Applicable Law; or (b) any unauthorized modifications, alterations, or implementations of the Truv Platform or API Key made by Reseller or at Reseller’s request (other than by Truv); or (ii) the Infringement Claim arises from use of the Truv Platform or API Key in combination with unauthorized modules, apparatus, hardware, software, or services not supplied or specified in writing by Truv, provided that Reseller’s Application is hereby deemed approved as of the Effective Date. In the event that Truv reasonably determines that the Truv Platform or API Key, or any portion thereof, are likely to be the subject of an Infringement Claim, Truv shall: (x) procure for Reseller the right to continue to use the Truv Platform and/or API Key as provided in this Agreement; (y) replace the infringing components of the Truv Platform and/or API Key with other components with equivalent functionality; or (z) suitably modify the Truv Platform or API Key so that they are non-infringing and functionally equivalent. If none of the foregoing options is available to Truv on commercially reasonable terms, Truv may terminate this Agreement without further liability to Reseller (save those obligations of Truv which survive any termination or expiration of this Agreement) and shall refund Reseller a prorated portion of any pre-paid fees, provided that Truv’s indemnification obligations shall survive with respect to such Claim.
9.3Indemnification by Reseller. Reseller shall, at its own cost, indemnify, defend, and hold harmless Truv and its officers, directors, members, agents and employees (the “Truv Indemnified Parties”) from and against any and all Losses arising from Claims against any Truv Indemnified Parties in connection with any Claim that is based on or arises from (i) Reseller’s breach of its representations, expressed or implied warranties, covenants or other obligations under this Agreement or violation of any Applicable Law; (ii) the operation of Reseller’s business; (iii) Customer’s use of or reliance on the Consumer Data other than in accordance with this Agreement; (iv) the gross negligence, omission, or willful misconduct of Reseller, its Affiliates, contractors and/or personnel; or (v) any Customer Agreement.
In the event of any Claim for which a Party indemnifies under this Section 9, the Party seeking indemnification (the “Indemnified Party”) will notify the other Party (the “Indemnifying Party”); provided, however, that the failure of the Indemnified Party to give notice hereunder will not affect its rights to indemnification hereunder, except to the extent that the Indemnifying Party can demonstrate actual, material prejudice as a result of such failure. The Indemnified Party may participate in the defense of the Claim by counsel of its own choosing at its own cost and expense, and such participation by the Indemnified Party shall not relieve the Indemnifying Party of its indemnification obligations hereunder. The Parties will fully cooperate with each other in the defense of any such Claim and will make available to each other any books or records useful for the defense of any such Claim. The Indemnifying Party shall not enter into any settlement or resolution of any Claim or make any admission of guilt or liability on the part of the Indemnified Party, without the Indemnified Party’s express prior written consent.
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
10.2 UNDER NO CIRCUMSTANCES WILL TRUV’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY RESELLER TO TRUV DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM.
10.3 NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS EITHER PARTY’S LIABILITY FOR MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, FOR FRAUD OR FRAUDULENT MISREPRESENTATION, OR FOR DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE OR THE NEGLIGENCE OF ITS AFFILIATES, EMPLOYEES, OR AGENTS.
10.4 THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 10 SHALL NOT APPLY TO (I) A PARTY’S INDEMNITY OBLIGATIONS HEREUNDER; (II) BREACH BY A PARTY OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8; OR (III) A PARTY’S GROSS NEGLIGENCE, OMISSION, OR WILLFUL MISCONDUCT.
10.5 EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE BUSINESS TERMS OF THIS TRANSACTION AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE WARRANTIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
11.1Independent Contractors. The relationship of the parties established by this Agreement is that of independent contractors, and does not constitute a partnership, joint venture, or other relationship. Nothing contained in this Agreement should be construed to give either Party the power to act as an agent or direct or control the day-to-day activities of the other. All financial and other obligations associated with each Party’s business is the sole responsibility of that Party.
11.2Insurance Requirements. Reseller shall carry commercial general liability insurance with limits of no less than $1,000,000 per insurance claim and $5,000,000 in the aggregate and, if applicable, worker’s compensation insurance as required by law, together with employer’s liability insurance coverage, professional errors and omissions liability insurance coverage with limits of no less than $1,000,000 per insurance claim and $5,000,000 in the aggregate, and cyber insurance coverage with limits of no less than $1,000,000 per insurance claim and $5,000,000 in the aggregate. Upon Truv’s request, Reseller shall furnish a certificate of insurance evidencing the required coverage. All policies shall be written by reputable insurance companies with an A.M. Best’s policyholder rating of not less than A- VII.
11.3Assignability and Binding Effect. Neither Party will assign (whether by operation of law or otherwise) its rights and obligations under this Agreement without the prior written consent of the other. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their successors and assigns.
11.4Audit Rights. Upon reasonable prior written notice and during normal business hours, Truv may audit Reseller’s compliance with this Agreement no more than once annually. Any such audit shall be limited to records reasonably necessary to verify compliance with applicable usage restrictions, payment obligations, and applicable law, and shall be conducted in a manner designed to minimize disruption to Reseller’s business operations.
11.5Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
11.6Case Study. With Reseller’s prior consent (which may be withheld in Reseller’s sole discretion) Truv may publish a case study of the Reseller’s use of the services on Truv’s websites and social media. Truv agrees that any information used for the case study will be anonymous, aggregated or de-identified prior to its publication so that this information does not allow the identification of Consumer(s). Truv shall be solely responsible for the production and distribution costs of any case study.
11.7Publicity. Truv may use Reseller’s name or logos to promote the relationship effectuated by way of this Agreement.
11.8Program Policies. Reseller acknowledges and agrees that Truv may maintain reseller program requirements, technical documentation, onboarding requirements, support terms, compliance policies, and related operational guidelines online or through the Truv Platform, and may update such materials from time to time upon reasonable notice to Reseller.
11.9Force Majeure. Nonperformance of either Party will be excused to the extent that performance is rendered impossible by a Force Majeure Event where failure to perform is beyond the control and not caused by the negligence of the non-performing Party. Furthermore, Truv shall not be responsible for any delay, failure to perform, or alteration of the Products due to any act, omission or failure to perform by Reseller, and Reseller may be responsible to Truv for additional fees and costs associated therewith.
11.10Choice of Law and Venue. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the laws of the State of Florida, without regard to its conflicts of laws rules. Each Party irrevocably consents to the exclusive jurisdiction of the state and federal courts located in Miami-Dade County, Florida for any dispute relating to this Agreement, and irrevocably and unconditionally waives any right to a trial by jury in respect of any action arising out of or relating to this Agreement or the transactions contemplated hereby. The Parties agree to exclude the application of the United Nations Convention for the International the Sale of Goods or any other similar conventions, regulations or treaties to this Agreement and the obligations hereunder.
11.11Waiver. The waiver by either Party of any breach of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation under this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
11.12Severability. If any part of this Agreement is unenforceable, the remaining portions of this Agreement will remain in full force and effect.
11.13Interpretation. The headings appearing at the beginning of several sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders.
11.14Entire Agreement. This Agreement, including any exhibits, is the final and complete expression of all agreements between the Parties regarding the subject matter hereof and supersedes all previous oral and written agreements or understandings regarding these matters. It may be amended, updated, or changed only by a written agreement signed by the Party against whom enforcement is sought.
11.15Electronic Acceptance. Reseller acknowledges and agrees that this Agreement may be accepted electronically, including through execution of an Order Form, reseller application, onboarding process, electronic acknowledgement, portal acceptance, or use of the Products, each of which shall constitute acceptance of this Agreement and create a binding legal agreement between the Parties.
As used in this Agreement, the following terms shall have the following meanings:
12.1“Affiliate(s)” means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party on or after the effective date of this Agreement, where “control” means right to exercise the power to direct or cause the direction of the affairs, policies or management of a Party, whether through the ownership of voting securities, by contract, as trustee or executor, or otherwise.
12.2“API” means Truv’s proprietary application programming interface.
12.3“API Key(s)” means a set of keys for the API made available by Truv to its clients. An API Key may be a production API Key or a sandbox API Key.
12.4“Applicable Laws” means all international, federal, state, provincial, and local laws, rules, regulations, binding regulatory guidance, directives, and governmental requirements applicable to a Party’s performance under this Agreement.
12.5“Consumer” means an end-user of the Truv Platform by way of the Truv Bridge.
12.6“Consumer Contact Information” means the information provided by Reseller to Truv necessary for Truv to contact a Consumer.
12.7“Consumer Credentials” means the information provided by the Consumer to Truv necessary for Truv to obtain Consumer Data from a Data Location.
12.8“Consumer Data” means any financial information (such as credit card data or credit history), employment status or details, and service ratings about a Consumer supplied by a Data Location as of the time of the request.
12.9“Customer(s) or Reseller’s Customer(s)” means a business that Reseller marketed and sold the Reseller Application containing Products provided by the Truv Platform during the Term.
12.10“Data Location” means a third-party service made available by a Consumer to Truv by way of Consumer’s interaction with the Truv Bridge in order for Consumer to direct such third-party service to supply Consumer Data to Truv in furtherance of delivery of Truv’s Products. The Parties acknowledge that the Consumer, not Truv or Reseller, has a contractual relationship with the applicable Data Location.
12.11“Documentation” means Truv-provided user documentation, in all forms, relating to the Truv Platform and Services (e.g., user manuals and online help files), including the documentation available at https://docs.truv.com.
12.12“Force Majeure Event” means the occurrence of any contingency beyond the reasonable control of the non-performing Party such as pandemic, quarantine, government shutdown, flood, earthquake, elements of nature or acts of God, rebellions or revolutions, acts of war, acts of terrorism, public utility or electrical failure, civil disorders (excluding strikes or work stoppages by a Party’s own personnel), or any other cause beyond a Party’s reasonable control, provided the non-performing Party is without fault in failing to prevent or causing such default or delay, and such default or delay cannot reasonably be circumvented by the non-performing Party through the use of commercially reasonable and viable alternate sources, workaround plans or other means. For the avoidance of doubt, in no event will the Reseller’s payment obligations pursuant to Section 2 be considered suspended or terminated due to Force Majeure Events.
12.13“GSE” refers to a government-sponsored enterprise such as Fannie Mae or Freddie Mac.
12.14“Privacy Law” means any then-current national, federal, state, provincial, or local law specifically applicable to the Services provided under this Agreement and that relates to the confidentiality, security and protection of Personal Identifiable Information (PII), employee information, customer and consumer information, electronic data privacy, trans-border data flow, or data protection, including: (A) Title V of Public Law 106-102 (“Gramm-Leach-Bliley” or “GLB”) (15 U.S.C. § 6801 et seq.); (B) Joint Final Rule of the Office of the Comptroller of the Currency, Department of Treasury, Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation, and Office of Thrift Supervision, implementing GLB at 12 CFR Part 573; (C) the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.); (D) regulations issued by state insurance departments pursuant to GLB Section 504; (E) Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 (“HIPAA”) and the final Privacy Rule, security regulations, and electronic standards regulations promulgated by the United States Department of Health and Human Services (DHHS) pursuant thereto; (F) the General Data Protection Regulation and national laws enacted by European Union members to implement it; and (G) the Payment Card Industry’s Data Security Standards (PCI-DSS), as promulgated by the Payment Card Industry Security Standards Council.
12.15“Products” means the products and associated services made commercially available by Truv, as described in this Agreement, applicable Documentation and Order Form.
12.16“Prohibited Content” means content that: (i) is illegal under Applicable Law; (ii) violates any third party’s intellectual property rights, including, without limitation, copyrights, trademarks, patents, and trade secrets; (iii) contains indecent or obscene material; (iv) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (v) promotes unlawful or illegal goods, services, or activities; (vi) contains false, misleading, or deceptive statements, depictions, or sales practices; (vii) contains viruses or other destructive elements; or (viii) is otherwise objectionable to Truv in its sole, but reasonable, discretion.
12.17“Reseller Application” means an application or applications operated and provided by Reseller to a Customer which application contains a functionality of Products.
12.18“Territory” means Reseller’s Customers located in the United States as defined in the Order Form.
12.19“Truv Bridge” the front-end UI widget by which Consumers interact with Truv.
12.20“Truv Platform” means Truv’s proprietary software-as-a-service platform that enables Truv clients to retrieve, add to, and use Consumer Data from Data Locations on behalf of and at the express authorization of Consumers.
[To be provided post onboarding]
[INSERTED BY REFERENCE]
The Service Level Commitments included in this document shall only be applicable to the availability of Truv’s Services, and shall not apply to the availability of any Third-Party Services or sites that may be integrated into or accessible through the Services, or the ability of access or transmit data to or from Customer.
A. Error Correction. Truv will respond to errors or failures of the Services (“Errors”) within the Error Response Times set forth below and resolve or correct the Errors within the Error Resolution Times set forth below. Customer, in its reasonable judgment, will determine the priority level of Errors.
| Priority Level | Definition | Initial Response Time | Error Resolution Time* |
|---|---|---|---|
| 1 - Critical | An event and/or problem that has a significant business impact, or an immediate severe impact to a core business process or an operation that is mission critical to the business. The event and/or problem may render the Services non-functional or severely limited. | 1 hour | 4 hours Truv shall promptly initiate the following procedures: (1) assign its specialists and provide escalated procedures to correct the Error on an expedited basis, and (2) provide ongoing communication to Customer on the status of an Error on an hourly basis. |
| 2 - High | An event and/or problem that has a major business impact to Reseller or to a critical operation. The event and/or problem may limit the operations of the Services. | 4 hours | 24 hours Truv shall promptly initiate the following procedures: (1) assign its specialists and provide escalated procedures to correct the Error on an expedited basis, and (2) provide ongoing communication to Customer on the status of an Error on an hourly basis. |
| 3 - Medium | An event and/or problem that disrupts the operations of the Services. A workaround is available and use of the Services can continue. | 1 day | 7 days Truv shall (1) assign its specialist to correct the Error, and (2) provide communication to Customer on the status of the Error on request within 24 hours. |
| 4 - Low | An event and/or problem that has limited business impact, is not critical in nature, or does not have any significant impact to Customer. | 1 day |
Next Maintenance Release Truv shall (1) assign its specialist to correct the Error, and (2) provide communication to Customer on the status of the Error on a weekly basis. |
*Error resolution time means the time to provide a fix or workaround.
“Maintenance Release” means a subsequent version of a Service that includes Error corrections and/or upgrades. Truv will use commercially reasonable efforts to provide Maintenance Releases not less than four times per year.
1. Limited License
Subject to the Agreement, Truv grants Reseller a limited, non-exclusive, non-transferable, revocable license during the Term to use Truv’s trademarks, logos, and branding materials solely to market and promote the authorized Products.
2. Brand Usage Requirements
Reseller shall:
3. Restrictions
Reseller shall not:
4. Ownership
All goodwill arising from Reseller’s use of Truv’s marks shall inure solely to the benefit of Truv.
5. Termination
Upon expiration or termination of the Agreement, Reseller shall promptly cease all use of Truv’s marks.