Last Updated: December 4, 2025
These Terms of Service (“Terms” or “Agreement”) are entered into by and between Truepic, Inc. (hereinafter, “Truepic,” “we” or “our”) and the entity placing an order for, or accessing, any Services (“Customer” or “you”). If you are accessing or using the Services on behalf of a company, you represent that you are authorized to accept this Agreement on behalf of your company. You and Truepic are also sometimes each herein referred to as a “party” or collectively as the “parties.”
This Agreement permits Customer to purchase subscriptions to software-as-a-service products and other services from Truepic pursuant to Order Form(s) (defined below) and sets forth the terms under which those products and services will be provided.
The “Effective Date” of this Agreement is the earliest of (i) the date the first Order Form is executed by both parties, (ii) the Subscription Start Date set forth in the Order Form, or (iii) Customer’s initial access to any Services (as defined below) through any online provisioning, registration or order process.
Modifications: Truepic may update these Terms from time to time. Truepic will use reasonable efforts to notify Customer of the changes through Customer’s account, email, posting on the website, or other means, but in any event, continued use of the Services after the effective date for the updated Terms will constitute Customer’s acceptance of such updated version. Unless otherwise specified by Truepic, non-material changes become effective upon posting and material changes become effective upon renewal of Customer’s Subscription Term (as defined below) or entry into a new Order Form. Material changes are defined as changes that adversely affect Customer's rights or increase Customer's obligations in a substantive manner. If Truepic specifies that material changes to the Terms will take effect prior to Customer’s next renewal or new Order Form and Customer objects to such changes within thirty (30) days of such notice, Customer may terminate the applicable Subscription Term on thirty (30) days’ written notice to Truepic.
BY EXECUTING AN ORDER FORM OR ACCESSING OR USING ANY SERVICES, CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN IT. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT USE ANY SERVICES. EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT. THIS AGREEMENT CONTAINS MANDATORY ARBITRATION PROVISIONS THAT REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS. IT ALSO INCLUDES A WAIVER OF YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS. PLEASE READ IT CAREFULLY.
The following capitalized terms shall have the meanings set forth below:
“Aggregated Anonymous Data” means data derived from Customer Content that has been de-identified and aggregated such that it cannot reasonably identify, relate to, describe, or be linked to any individual, household, or entity.
“Applicable Law” means all applicable local, state, federal and international laws and regulations.
“AUP” means our Acceptable Use Policy, which is incorporated into this Agreement by reference.
“Confidential Information” means information about a party’s technology, business plans, pricing, marketing strategies, customers, financial information, and any other non-public information that is marked or designated as confidential or that would reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information does not include information that: (i) is or becomes generally available to the public other than as a result of a disclosure by the receiving party; (ii) was known to the receiving party prior to its disclosure by the disclosing party; (iii) becomes known to the receiving party from a source other than the disclosing party without breach of any obligation of confidentiality; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Customer Content” means photos, information, data, text, and any other content provided by Customer or its End Users through the Service, other than Feedback, Fraudulent Content and Aggregated Anonymous Data.
“Customer Properties” means Customer’s websites, apps, or other offerings owned and operated by (or for the benefit of) Customer.
“Dashboard” means Truepic’s user interface for accessing and administering the Services via the web or Apps.
“Documentation” means the technical user documentation provided with the Services, as made available at https://truepic.dev/ or otherwise provided by Truepic.
“End User” means any person or entity who is a customer of a Customer and accesses any Service.
“Feedback” means comments, questions, suggestions, improvements, or other feedback relating to any Service and data about the use of the Services.
“Fraudulent Content” means data relating to deceptive, fraudulent, suspicious, or illegal activity.
“Intellectual Property Rights” includes all patents, utility models, design patents, copyrights, trademarks, service marks, trade dress, trade names, logos, trade secrets, moral rights, know-how, all rights in computer software and data, database rights, and all other intangible property rights and privileges throughout the world, as may now exist or hereafter come into existence, and all renewals and extensions thereof, and all improvements to any of the foregoing, regardless of whether any of such arise under the laws of any state, country or other jurisdiction, and whether or not a party has applied for or been issued or granted registration or other protection therefor.
“Objectionable Content” means content that: (i) includes any material that by itself, or by its use in connection with the Services, infringes upon, misappropriates or violates the rights of any person or entity or any applicable laws; (ii) includes material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights (including, without limitation, trademark, privacy and publicity rights) unless Customer is the owner of such rights or Customer has all necessary license rights to do so and to grant Truepic the rights set forth in this Agreement; (iii) contains or installs any viruses, worms, malware, Trojan horses, or other harmful or destructive code; (iv) is unlawful, libelous, defamatory, obscene, offensive, threatening, hateful, or otherwise objectionable or inappropriate; (v) contains Personal Information, except with the consent of the individual to whom such information relates or as otherwise expressly permitted under applicable data protection and privacy laws, (vi) contains information relating to children under the age of 13 or (vii) may damage, interfere with, or disrupt the Services, Dashboard, Truepic Apps, Truepic Code, or any third-party systems.
“Order Form” means a form that is used to order the Services, including without limitation an online registration or payment process completed through Truepic’s website or Truepic’s third-party vendor. Each Order Form is subject to these Terms of Service.
“Personal Information” means any information relating to an identified or identifiable person as defined by applicable privacy or data protection laws but does not include Aggregated Anonymous Data or Fraudulent Content.
“Reports” means analytics, data, and output generated [from an inspection] through the use of the Services. [OR: means the digital provenance and authenticity reports generated by the Services.]
“Services” means Truepic’s proprietary software-as-a-service solution(s), Dashboard, Reports, and any additional offerings described in the applicable Order Form and Additional Product Terms, including any updates, modifications, or enhancements thereto. “Services” shall also include Truepic Apps and Truepic Code.
“Subscription Term” means the Initial Term and any Renewal Term as described in Section 7.
“Third-Party Offerings” means any software, app, software-as-a-service, data source, product or service not provided by Truepic that are integrated with, accessible through, or offered by Customer either separately or in connection with the Services.
“Truepic Apps” means any applications (both mobile and web) and integrations created or developed by Truepic.
“Truepic Code” means certain JavaScript code, software development kits (SDKs), application programming interfaces (APIs), and other code or libraries provided by Truepic for deployment on Customer Properties.
2.1 Services. Truepic’s Services are software-as-a-service solutions offered through an online platform. The Services are provided on a subscription basis for a set term designated on the Order Form. Truepic shall make the Services available to Customer during the Subscription Term solely for Customer’s business purposes and Customer shall use the Services in accordance with the terms and conditions of this Agreement, the Documentation, and the applicable Order Form. Some Services may be subject to Additional Product Terms, which are incorporated into and form a part of this Agreement.
2.2 Documentation. Truepic will provide or make available to Customer the Documentation that describes the major features and functionality of the ordered Service(s).
2.3 Service Levels. Truepic’s Service Levels are available at [hyperlink].
2.4 Changes to Services. Truepic may, from time to time, make modifications, updates, or enhancements to the Services or modify or discontinue certain features or functionality of the Services. Truepic will use commercially reasonable efforts to notify Customer of any material changes to the Services at least thirty (30) days in advance of such changes taking effect, unless such changes are necessary to address security concerns, legal requirements, or technical issues requiring immediate implementation.
2.5 Beta Offerings. Customer may choose to use beta offerings in its sole discretion. Use of beta offerings may be subject to additional terms provided by Truepic with the beta offering. Truepic may offer a beta offering with or without charge and may modify pricing for a beta offering upon notice to Customer. Beta offerings may be changed at any time without notice and may not be maintained and/or become generally available. Beta offerings are to be used for Customer’s internal testing and evaluation purposes only and are not subject to the same security measures specified in the Data Processing Addendum. Truepic will have no liability arising out of or in connection with beta offerings and disclaims any warranty, indemnity, support, service level, or other obligations with respect to its beta offerings. CUSTOMER USES BETA OFFERINGS “AS IS” AND AT ITS OWN RISK.
3.1 Truepic Intellectual Property. Truepic owns all right, title, and interest in and to the Services, Truepic Apps, Truepic Code, Aggregated Anonymous Data, Feedback, and Fraudulent Content including all Intellectual Property Rights related thereto or arising therefrom. Pursuant to the subscription purchased by Customer, during the Subscription Term Customer may access and use the Services in accordance with this Agreement, the Documentation, and the Order Form. If the Services are integrated into Customer Properties, Truepic grants Customer a limited, non-exclusive, non-sublicensable, non-transferable right during the Subscription Term to copy and implement the Truepic Code provided by Truepic on Customer Properties solely to support Customer’s use of the Services in connection with this Agreement. Customer will implement all Truepic Code in strict accordance with the Documentation and other instructions provided by Truepic. Customer acknowledges that any changes made to the Customer Properties after initial implementation of Truepic Code may cause the Services to cease working or to function improperly and that Truepic will have no responsibility for the impact of any such Customer changes. Where Truepic makes Truepic Apps available to Customer (for example, through app stores or Truepic-hosted environments), Customer’s use of such Truepic Apps is governed by this Agreement, the AUP, and any other applicable end-user terms provided by the app stores or with the Truepic Apps.
3.2 Customer Intellectual Property. As between Truepic and Customer, Customer owns all right, title, and interest in and to the Customer Content and its trademarks, including all Intellectual Property Rights related thereto or arising therefrom. Customer grants Truepic a non-exclusive, worldwide, royalty-free license during the Subscription Term (a) to use, modify, reproduce, display, transmit, and distribute the Customer Content to provide and improve the Services and to create the Aggregated Anonymous Data, and (b) to use Customer’s trademarks, logos, and service marks as directed by Customer to provide a white-labeled Service, if applicable.
3.3 No Other Rights Granted. This is a subscription agreement for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to the Services during the Subscription Term and that irrespective of any use of the words “purchase,” “sale,” or like terms in this Agreement or the Order Form, no ownership rights are being conveyed to Customer under this Agreement. Except for the limited rights expressly granted by each party to the other party under this Agreement, nothing contained herein shall be construed as granting any license or right to either party, by implication, operation or law, or otherwise.
4.1 Account Registration. Customer shall create accounts for using the Services (each, an “Account”) and provide accurate, current, and complete information during the account creation process. Customer is responsible for maintaining the confidentiality of all Account information and for all activities that occur under such Accounts. Customer shall notify Truepic promptly of any unauthorized use of any Account or any other known or suspected breach of security related to the Services.
4.2 Customer Content. Customer shall be solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content. Customer represents and warrants that it has all necessary rights, consents and permissions to collect, share and use the Customer Content as contemplated in connection with the Services, including the right to grant rights to the Customer Content to Truepic, and that the Customer Content will not contain any Objectionable Content. Customer acknowledges that Truepic has no obligation with respect to Objectionable Content submitted to the Services.
4.3 Compliance with Laws. Customer shall comply with all Applicable Laws, regulations, and industry standards in connection with its use of the Services, including, without limitation, laws relating to privacy, data protection, and the gathering, use, and disclosure of Personal Information.
4.4 Restrictions. Customer will not, and will not permit any third party to, (a) rent, lease, license, sell, provide access to, sublicense or otherwise commercially exploit the Services to any third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party other than the Customer Properties; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services; (d) copy or modify the Services or any Documentation, or create any derivative work from the foregoing, including modifying any Report; (e) remove or obscure any proprietary or other notices contained in the Services, and specifically /or on any Report (unless otherwise expressly permitted by Truepic in advance); (f) use the Services to process Objectionable Content; (g) use the Services for competitive analysis purposes; (h) knowingly allow any End User or other third party to do any of the foregoing; or (i) otherwise violate Truepic’s AUP. Customer shall immediately notify Truepic if Customer becomes aware of any unauthorized use of the Services or any use in violation of this Agreement. Customer agrees to cooperate with Truepic in any investigation into misuse of the Services and to use any reasonable prevention measures prescribed by Truepic.
4.5 Indemnification by Customer. Customer will indemnify, defend, and hold harmless Truepic, its owners, directors, officers, agents, and employees (“Truepic Indemnified Parties”) from and against third-party claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) (together, “Damages”) arising from or relating to any Customer Content, Customer’s use of a Third-Party Offering, or breach or alleged breach by Customer of Section 4 (Customer Obligations). This indemnification obligation is subject to Customer receiving (a) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense, and settlement of such claim; and (c) all reasonably necessary cooperation of Truepic and Truepic Indemnified Parties at Customer’s expense. Notwithstanding the foregoing sentence, (i) Truepic and Truepic Indemnified Parties may participate in the defense of any claim with counsel of their own choosing, at their cost and expense and (ii) Customer will not settle any claim without Truepic’s prior written consent, unless the settlement fully and unconditionally releases Truepic and any Truepic Indemnified Parties named in the lawsuit and does not require Truepic or any Truepic Indemnified Party to pay any amount, take any action, or admit any liability.
5.1 Processing of Personal Information. Truepic may process Personal Information in connection with the provision of the Services. The Parties acknowledge and agree that, with respect to the processing of Personal Information of Customer’s End Users, Customer is the data controller and Truepic is the data processor.
5.2 Data Processing Terms. The Parties agree to comply with the data processing terms set forth in the Data Processing Addendum to the extent it applies to the parties, which sets out the subject matter, duration, nature, and purpose of the data processing, the types of Personal Information processed, the categories of data subjects, and the obligations and rights of the Parties with respect to the processing of Personal Information.
5.3 Security Measures. Truepic shall implement and maintain appropriate technical and organizational measures to protect Personal Information from accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or access. Such measures shall be appropriate to the risks presented by the processing and the nature of the Personal Information to be protected, taking into account the state of the art, the costs of implementation, and the nature, scope, context, and purposes of processing.
5.4 Data Breach Notification. Truepic shall notify Customer without undue delay, but in no event later than seventy-two (72) hours after becoming aware of a personal data breach involving Customer Content. Such notification shall include, to the extent possible, the nature of the breach, the categories and approximate number of data subjects concerned, the categories and approximate number of Personal Information records concerned, the likely consequences of the breach, and the measures taken or proposed to be taken to address the breach.
5.5 Aggregated Anonymous Data. Truepic may collect, use, and disclose Aggregated Anonymous Data for any lawful purpose, including but not limited to improving, enhancing, and developing Truepic’s products and services, understanding usage patterns and trends, and conducting research and development.
5.6 Data Subject Rights. Truepic shall provide reasonable assistance to Customer to enable Customer to respond to any request from a data subject seeking to exercise their rights under applicable data protection laws with respect to Personal Information processed by Truepic under this Agreement. In the event that Truepic receives a request from a data subject directly, Truepic shall promptly notify Customer and provide details of the request, unless prohibited from doing so by applicable law.
6.1 Invoicing and Payment. All fees specified in the applicable Order Form (“Fees”) shall be invoiced and payable as set forth in the Order Form unless otherwise set forth herein. Except as expressly set forth in this Agreement, all Fees are non-refundable. Any amounts not paid when due shall accrue interest at the rate of 1.5% per month, or the maximum rate permitted by Applicable Law, whichever is less, from the due date until paid in full. Any third-party credit card processing fees are the responsibility of Customer. If Fees for the Initial Term are subject to promotional or discounted pricing, Truepic may adjust the Fees for any Renewal Term to reflect Truepic’s then-current standard pricing for the applicable Services upon the start of any Renewal Term.
6.2 Fee Adjustment. Truepic may increase the fees for the Services at the beginning of any Renewal Term. Truepic will provide Customer notice of such fee increase prior to the beginning of the Renewal Term.
6.3 Recurring Payment Method. If you are purchasing the Services via credit card, debit card or any other recurring payment method accepted by Truepic (“Recurring Payment Method”), the following terms apply:
(a) Recurring Billing Authorization. By providing Recurring Payment Method information and agreeing to purchase any Services, Customer hereby authorizes Truepic (or its designee) to automatically charge or debit Customer’s Recurring Payment Method for all Fees in accordance with the applicable Order Form. Customer acknowledges and agrees that the amount billed and charged may vary depending on any adjustments to the subscription fee, any upgrade fees based on usage, and additional usage charges.
(b) Invalid Payment. If a payment is not successfully settled due to expiration of a Recurring Payment Method, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to Truepic and Truepic may, in its sole discretion, either (i) invoice Customer directly for the deficient amount, (ii) continue billing the Recurring Payment Method once it has been updated by Customer (if applicable) or (iii) terminate this Agreement.
(c) Payment of Outstanding Fees. Upon termination or expiration of the Subscription Term, Truepic will charge or debit Customer’s Recurring Payment Method (or invoice Customer directly) for any outstanding fees from Customer’s Subscription Term.
6.4 Taxes. Truepic may collect applicable taxes from Customer by adding such taxes to the Order Form or invoices. Any such taxes will be separately stated on the Order Form or invoices issued to Customer.
6.5 Disputed Invoices. In the event Customer disputes in good faith any invoiced Fees, Customer must provide written notice of the disputed amount within fourteen (14) days after receiving such invoice, specifying the amount in dispute and the reason for the dispute. Customer shall pay all undisputed portions of any invoice in accordance with Section 6.1. The Parties shall work in good faith to resolve any disputed amounts as promptly as possible. Upon resolution of the dispute, Customer shall promptly pay Truepic the portion of the disputed amount agreed or determined to be owing.
6.6 Suspension of Service. Truepic reserves the right to suspend Customer’s access to the Service, without liability to Truepic, if Customer is late in payment of any Fees or is otherwise in breach of this Agreement. The foregoing shall be in addition to any other rights or remedies available to Truepic, including immediate termination of this Agreement for non-payment.
7.1 Term. Your subscription begins on the Effective Date and shall continue for the initial term specified in the Order Form (the “Initial Term”), unless otherwise terminated in accordance with this Agreement. Thereafter, your subscription shall automatically renew for successive one-year periods (“Renewal Term”), unless either party provides written notice to the other party of non-renewal at least sixty (60) days prior to the end of the then-current term. The Initial Term and Renewal Term are collectively referred to as the “Subscription Term.”
7.2 Termination for Cause. Either party may terminate the subscription if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days following written notice of such breach to the other party; provided, however, Truepic may immediately suspend the Services for late payment of Fees or a violation of Truepic’s AUP or Section 4.4.
7.3 Termination for Bankruptcy or Insolvency. Either party may terminate the subscription if the other party becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, becomes subject to control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding.
7.4 Effect of Termination. Upon termination or expiration of the subscription: (a) Customer shall immediately cease all use of the Services; (b) this Agreement, and all rights and licenses granted hereunder, shall immediately terminate; (c) each party shall return or destroy all Confidential Information of the other party in accordance with Section 8; (d) Truepic shall, at Customer’s request, return all Customer Content in Truepic’s possession in a format mutually agreed upon by the parties, provided that Customer made such request prior to the effective date of termination or expiration; and (e) all outstanding Fees and other amounts owed to Truepic shall become immediately due and payable.
7.5 Survival. In the event of any termination or expiration of this Agreement for any reason, all provisions of this Agreement and the Order Form that state they survive the termination or expiration or whose meaning requires them to survive will survive the termination or expiration of this Agreement, including but not limited to Sections 1 (Definitions), 4.5 (Indemnification), 6 (Fees and Payment), 7.4 (Effect of Termination), 7.5 (Survival), 8 (Confidentiality), 9 (Limited Warranty), 10 (Indemnification), 11 (Limitation of Liability) and 12 (Miscellaneous).
8.1 Confidentiality Obligations. Each party shall: (a) use the same degree of care to protect the confidentiality of the other party’s Confidential Information that it uses to protect its own Confidential Information of like nature, but in no event less than reasonable care; (b) not use the other party’s Confidential Information for any purpose outside the scope of this Agreement; and (c) not disclose the other party’s Confidential Information to any third party, except as permitted by this Agreement or with the other party’s prior written consent.
8.2 Permitted Disclosures. A party may disclose the other party’s Confidential Information: (a) to its employees, agents, advisors, and contractors who have a need to know such information for purposes of performing this Agreement, provided that such persons are bound by confidentiality obligations no less restrictive than those contained herein; (b) as required by law, regulation, or court order, provided that the disclosing party provides the other party with prompt written notice of such requirement to allow the other party to seek a protective order or other appropriate remedy; and (c) to the extent such Confidential Information is required to be disclosed in connection with the enforcement of such party’s rights under this Agreement.
8.3 Return or Destruction of Materials. Upon the termination or expiration of this Agreement, or upon the request of the disclosing party, the receiving party shall promptly return or destroy all Confidential Information of the disclosing party in its possession or control, including all copies, extracts, and derivatives thereof, and certify in writing to the disclosing party that such return or destruction has been completed. Notwithstanding the foregoing, the receiving party may retain Confidential Information to the extent required by Applicable Law or regulation or as part of its standard backup procedures, provided that such Confidential Information remains subject to the confidentiality obligations set forth in this Agreement.
9.1 Limited Warranty. Truepic warrants, for Customer’s benefit only, that each Service will operate substantially in conformity with the applicable Documentation during the Subscription Term. Truepic’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for Truepic to use commercially reasonable efforts to correct the reported non-conformity, or if Truepic determines such remedy to be impracticable or commercially unreasonable, either party may terminate the applicable Subscription Term and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for the use of such Service for the terminated portion of the applicable Subscription Term. In order to receive the remedy set forth herein, Customer must make a claim within thirty (30) days of the date on which Customer first noticed the non-conformity. The limited warranty will not apply, and Customer shall not be entitled to any remedy: if (a) the Service has been modified by any party other than Truepic; (b) the Service has been combined with products or processes not provided or authorized by Truepic; (c) Customer has engaged in or permitted any unauthorized use of the Service; or (d) the Services are provided to Customer to use on a no-charge, trial, beta or evaluation basis.
9.2 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9.1, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND TRUEPIC HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TRUEPIC DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
9.3 Warranty Exclusions. Truepic does not warrant that the Service, or any other applications, services, or materials provided under this Agreement will be compatible with or operate in the hardware, software, or website configurations that Customer or any End User selects. Truepic is not responsible for any delays, delivery failures or other damages resulting from Third-Party Offerings and Truepic makes no representations or warranties as to the suitability of Third-Party Offerings, or for the acts or omissions of providers of such Third-Party Offerings.
10.1 Truepic Indemnification. Truepic will defend Customer, its owners, directors, officers, agents, and employees (each, a “Customer Indemnified Party”) from and against any claim by a third party alleging that the Services, when used as authorized under this Agreement and in accordance with the Documentation, infringe such third party’s Intellectual Property Rights and will indemnify and hold harmless Customer and Customer Indemnified Parties from and against any Damages awarded against Customer and Customer Indemnified Parties or agreed in settlement by Truepic resulting from such claim, provided that Truepic receives: (a) prompt written notice of such claim (but in any event, notice in sufficient time for Truepic to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense and settlement of such claim; and (c) all reasonably necessary cooperation of Customer and Customer Indemnified Parties at Truepic’s expense. Notwithstanding the foregoing sentence, (i) Customer and Customer Indemnified Parties may participate in the defense of any claim with counsel of their own choosing, at their cost and expense and (ii) Truepic will not settle any claim without Customer’s prior written consent, unless the settlement fully and unconditionally releases Customer and any Customer Indemnified Parties named in the lawsuit and does not require Customer or any Customer Indemnified Party to pay any amount, take any action, or admit any liability. The foregoing indemnification obligation of Truepic will not apply: (1) if the Service is modified by any party other than Truepic; (2) if the Service is combined with products, services, or processes not provided or authorized by Truepic; (3) if Customer has engaged in or permitted any unauthorized use of the Service; (4) to any action arising as a result of Customer Content or any third-party deliverables or components contained within the Service; (5) to any action arising from Customer’s use of Third-Party Offerings; or (6) if Customer or a Customer Indemnified Party settles or makes any admissions with respect to a claim without Truepic’s prior written consent.
10.2 Remedies. In the event the Service becomes subject to a third-party claim of infringement for which Truepic may be liable, Truepic may, at its own option and expense, take one of the following courses of action: (a) procure the right for Customer to continue using and allowing access to the Service in accordance with this Agreement; (b) make such alterations, modifications or adjustments to the Service so that it becomes non-infringing; (c) replace the Service with a non-infringing substitute; or (d) if Truepic determines that it is not possible or commercially reasonable to exercise any of the foregoing options, then Truepic may terminate this Agreement immediately with no liability to Customer except Truepic shall refund any payments which have been made by Customer in advance which exceed amounts due. THIS SECTION 10 SETS FORTH TRUEPIC’S AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT BY THE SERVICES.
11.1 EXCLUSION OF CERTAIN DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY OF LIABILITY, WHETHER FORESEEABLE OR NOT, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
11.2 LIMITATION OF LIABILITY. EXCEPT FOR BREACHES OF SECTION 4 (CUSTOMER OBLIGATIONS) AND SECTION 8 (CONFIDENTIALITY), LIABILITIES ARISING UNDER SECTIONS 4.5 AND 10 (INDEMNIFICATION), AND AMOUNTS OWED TO TRUEPIC BY CUSTOMER, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO TRUEPIC HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE INCIDENT GIVING RISE TO THE CLAIM.
11.3 Exceptions. The foregoing limitations shall not apply to liabilities that cannot be limited or excluded under Applicable Law.
12.1 Assignment. Neither party may assign, license, sub-license, or transfer this Agreement or any of its rights hereunder, without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may assign this Agreement without such consent (a) to an affiliate or subsidiary; (b) in connection with a merger, consolidation, sale of all or substantially all of such party's assets or voting securities, or any other transaction in which more than fifty percent (50%) of such party’s assets, control, or voting securities are transferred; or (c) to the successor in interest to all or substantially all of that part of the business to which this Agreement relates.
12.2 Successors and Assigns. The provisions of this Agreement shall be binding on and inure to the benefit of the successors and permitted assigns of the parties.
12.3 Notices. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (a) if given by hand, immediately upon receipt; (b) if given by overnight courier service, the first business day following dispatch (c) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; or (d) if given by email on the first business day after it is sent. You agree that any electronic communication satisfies any applicable legal communication requirements, including that such communications be in writing.
12.4 Governing Law; Dispute Resolution.
(a) Direct Dispute Resolution. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other party through the notice procedures in Section 12.3. If a dispute is not resolved within thirty (30) days of notice, either party may bring a formal arbitration proceeding in accordance with the terms hereof.
(b) Choice of Law. These Terms shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws provisions. All disputes, controversies, and claims arising out of or related to this Agreement, any Truepic policy, the relationship between you and Truepic, and the arbitration provisions contained herein, including the enforceability and validity thereof, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, shall be finally settled through binding arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures then in effect; provided, however, either party may seek injunctive relief in a state or federal court in the State of Delaware (“Delaware Courts”), to prevent actual or threatened infringement of intellectual property rights or disclosure of confidential information. Each party, with respect to any such matters or actions, (i) irrevocably submits to the exclusive jurisdiction of the Delaware Courts, (ii) waives any objection to venue in any such action in the Delaware Courts, and (iii) waives any objection that the Delaware Courts are an inconvenient forum or do not have jurisdiction over any party hereto. The parties agree that any judgment entered by the Delaware Courts, or any temporary restraining order, order of specific performance, or preliminary or permanent injunction, may be enforced in any court of competent jurisdiction.
(c) Arbitration. The arbitration shall take place in the State of Delaware and shall be conducted in English by a single arbitrator who has experience in software-as-a-service subscription agreements. All arbitration proceedings shall be conducted virtually via teleconference or secure video conference technology, unless the parties mutually agree in writing to conduct the arbitration in person. Neither party may unilaterally require in-person arbitration. The arbitrator shall have the authority to ensure that appropriate technology and procedures are used to conduct a fair virtual hearing, including but not limited to the ability to share documents electronically, present exhibits virtually, and examine witnesses via video conference. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The arbitrator will have no authority to certify a class, award class-wide relief, or award relief on behalf of anyone other than the parties to this Agreement. Each party shall bear its own costs, fees, and expenses of arbitration. The arbitration proceedings, including any documents filed, testimony given, and the arbitrator's award, shall be kept confidential by the parties. The award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(d) Waiver of Class Action and Class Participation. The parties agree that all proceedings shall be brought on an individual basis only and not as a plaintiff, class representative, or class member in any purported class, collective, representative, or private attorney general proceeding. YOU AGREE THAT YOU MAY NOT INITIATE OR PARTICIPATE IN CLASS ARBITRATIONS OR CLASS ACTIONS AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.
(e) No Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
12.5 Export. The Services and other technology Truepic makes available, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. Customer represents that it is not named on any U.S. government denied-party list. Customer shall not, and shall not permit End Users, to access or use the Services in a U.S. embargoed country or in violation of any U.S. export law or regulation.
12.6 Equitable Relief. Notwithstanding anything to the contrary herein, the parties agree that a material breach of this Agreement may cause irreparable injury to the other party for which monetary damages would not be an adequate remedy and that either party shall be entitled to seek equitable relief, without posting a bond or other security, in addition to any remedies it may have hereunder or at law.
12.7 Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction 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 effect and enforceable.
12.8 Independent Contractors. The parties are independent contractors and will have no right or authority to act on behalf of, create any obligation for, or bind the other party in any way. Nothing in this Agreement will be deemed to create a partnership or joint venture between the parties.
12.9 Execution and Acceptance. Each and any of the following constitute Customer’s acceptance of and agreement to be bound by these Terms and all other documents comprising the Agreement: (a) electronic signature through Truepic’s order portal or third-party signature service; (b) manual or electronic signature on a physical or PDF copy; (c) clicking "I Accept," "I Agree," or similar acknowledgment button; or (d) accessing or using the Services. The parties agree that all of these methods shall be given the same legal effect as manual signatures and paper documents under Applicable Law, including the Electronic Signatures in Global and National Commerce Act (E-SIGN) and the Uniform Electronic Transactions Act (UETA).
12.10 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (other than a failure to pay fees) if the delay or failure is due to acts beyond its reasonable control including, but not limited to, acts of God or public enemy, the acts or failure to act of any governmental authority, civil unrest, acts of civil or military authority, war, embargos, labor disputes, fires, earthquakes, epidemics, pandemics, floods, unusually severe weather, natural disaster, or shortage or diminishment or failure of power or telecommunications services, data networks, cloud services or backup systems (each a “Force Majeure Event”).
12.11 Government Users. The Services and Documentation are “commercial items” as that term is defined at 48 C.F.R. §2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. §12.212. Accordingly, if Customer is an agency of the U.S. Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are set forth herein, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other U.S. Government Customers and their contractors. All Services and Documentation were developed fully at private expense.
12.12 Forms. Pre-printed or standard terms and conditions of any purchase or other ordering document issued by Customer in connection with this Agreement or any Order Form shall be void, and as such shall not be binding on Truepic and shall not be deemed to supersede or replace any terms and conditions hereof or otherwise modify any Order Form or this Agreement, regardless of whether such documents claim to do so. No terms and conditions of any third-party shall supersede, modify or augment this Agreement.
12.13 Modification; Waiver. Customer is responsible for regularly reviewing all Terms posted on Truepic’s website. The current version of the Terms supersedes all other versions and Customer’s continued use of the Services after posting modified Terms constitutes acceptance of the modified Terms. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement other than as specifically set forth in Sections 4.5 and 10.1 (Indemnification).
12.14 No Third-Party Beneficiaries. This Agreement does not and is not intended to confer any rights or remedies upon any person other than (a) the parties, and (b) the indemnified parties identified in Sections 4.5 and 10.1 to the extent set forth in those sections.
12.15 Entire Agreement. This Agreement, together with the Order Form, all documents incorporated herein by reference, and all exhibits, schedules, and attachments hereto and thereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. Customer acknowledges that the Services are online, subscription-based products, and that in order to provide improved customer experience Truepic may make changes to the Services, and Truepic will update the applicable Documentation accordingly. In the event of any conflict or inconsistency among the Agreement documents, the Order Form and any attachments thereto will take precedence to the extent of any conflict.