These Terms of Service (the "Agreement") constitute a binding contract between you ("Customer" or "You") and TripleKey, Inc. ("TripleKey"). This Agreement governs your access to and use of FreeDAST and the other Services (as defined below). FreeDAST is an online service made available by TripleKey, and all references in this Agreement to the "Services" include FreeDAST.
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE SUBMIT BUTTON OR BY ACCESSING OR USING THE SERVICES (THE "EFFECTIVE DATE"). BY CLICKING ON THE SUBMIT BUTTON OR BY ACCESSING OR USING THE CLOUD SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK THE SUBMIT BUTTON. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
Notwithstanding anything else to the contrary herein, if Customer and TripleKey have separately executed a custom agreement for the Services, then those terms will apply in place of these terms, even if Customer would otherwise be deemed to have accepted an online version of these terms as set forth above. Except as set forth above, there shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
TripleKey shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by TripleKey or by third-party providers, or because of other causes beyond TripleKey's reasonable control, but TripleKey shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
HOWEVER, TRIPLEKEY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED "AS IS" AND TRIPLEKEY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
You agree to indemnify, defend, and hold harmless TripleKey and its successors and assigns and all of their respective officers, directors, agents, employees, and affiliates from and against any claims, liabilities, damages, judgments, awards, losses, obligations, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to (i) your breach of this Agreement; (ii) your violation of any third party's right, including, without limitation, any copyright, property right, or privacy right; or (iii) any claim that content provided by you caused damage or loss to a third party. This defense and indemnification obligation will survive your use of the Services and any termination of this Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, INTENTIONAL BREACHES OF SECTION 3 (CONFIDENTIALITY; PROPRIETARY RIGHTS); CLAIMS PURSUANT TO SECTION 5 (INDEMNITY) OR INTENTIONAL VIOLATIONS OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY NOR ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND SUCH PARTY'S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO TRIPLEKEY FOR THE SERVICES GIVING RISE TO THE CLAIM IN THE TWELVE MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TripleKey may modify this Agreement from time to time in its sole discretion. We will provide notice by, at a minimum, updating this posting. You are expected to carefully review this Agreement from time to time so you are aware of any changes. Any changes to this Agreement will be in effect as of the "Last Updated" date referenced at the top of this Agreement. Your continued use of the Services constitutes your binding acceptance to this Agreement, including any changes or modifications that we may make. If any part of this Agreement or any future changes to this Agreement are not acceptable to you, you must not use or access the Services.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with TripleKey's prior written consent. TripleKey may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind TripleKey in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. 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. All notices must be delivered to the parties at the contact information on the signature page of this Agreement until different contact information has been designated by notice to the other party. This Agreement shall be governed by the laws of the State of Tennessee without regard to its conflict of laws provisions. Any claims or actions regarding or arising out of this Agreement must be brought exclusively in a court of competent jurisdiction sitting in Nashville, Tennessee, and each party to this Agreement submits to the jurisdiction of such courts for the purposes of all legal actions and proceedings arising out of or relating to this Agreement. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with TripleKey to serve as a reference account upon request.