Terms of Service
Last modified: July, 2020
These Terms of Service (“Terms”) are a legal agreement between you (“you” or “User” as further defined below) and Truabilities, LLC, a Nevada limited liability company (“Truabilities,” “we,” “our,” or “us”), that describes the terms and conditions of your access to and use of the Truabilities website and your purchase, download, or use of the Services (as defined below).
TRUABILITIES PROVIDES THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS OF SERVICE AND ON THE CONDITION THAT USER ACCEPTS AND COMPLIES WITH THEM. BY CLICKING “ACCEPT,” CHECKING THE “ACCEPT” BOX ON AN ORDER FORM, CREATING AN ACCOUNT, PURCHASING, DOWNLOADING, , OR OTHERWISE REQUESTING, ACCESSING, OR USING THE SERVICES, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND ACCEPT THESE TERMS AND AGREE THAT USER IS LEGALLY BOUND BY THEM; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF USER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THESE TERMS ON BEHALF OF USER AND BIND USER TO ITS TERMS. IF USER DOES NOT AGREE TO THESE TERMS OF SERVICE, TRUABILITIES WILL NOT AND DOES NOT GRANT THE RIGHTS AND PERMISSIONS SET FORTH HEREIN, AND YOU MUST NOT CREATE AN ACCOUNT ORDOWNLOAD, INSTALL, ACCESS, OR USE THE SERVICES. THESE TERMS REQUIRE YOU TO RESOLVE DISPUTES WITH TRUABILITIES THROUGH FINAL AND BINDING ARBITRATION, EXCEPT AS OTHERWISE SET FORTH HEREIN. ANY ARBITRATION UNDER THIS AGREEMENT MUST TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. THINK CAREFULLY ABOUT WHAT THIS MEANS FOR YOU.
USE OF THE TRUABILITIES SERVICES IS AT YOUR OWN RISK AND DOES NOT GUARANTEE COMPLIANCE WITH ANY LAW (AS DEFINED HEREIN), GUIDELINES, POLICIES, OR REGULATORY, INDUSTRY, OR ORGANIZATION STANDARDS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING YOUR OWN COMPLIANCE WITH ANY OF THE FOREGOING, AND YOU HEREBY ACCEPT ALL RISK AND LIABILITY IN CONNECTION WITH YOUR RELIANCE ON OR USE OF THE SERVICES. TRUABILITIES MAKES NO GUARANTEE OF THE ACCURACY, RELIABILITY, OR AVAILABILITY OF THE SERVICES, AND TRUABILITIES SHALL NOT BE LIABLE TO YOU FOR ANY ERRORS, INACCURACIES, FAILURES, RELIABILITY, OR LIMITATIONS IN THE SERVICES. WHILE WE STRIVE TO PROVIDE A PRODUCT THAT WILL ASSIST YOU IN YOUR EFFORTS TO MAKE YOUR WEBSITE ACCESSIBLE, USING OUR SERVICES DOES NOT GUARANTEE THAT YOUR WEBSITE WILL BE LEGALLY COMPLIANT OR THAT YOUR CONTENT WILL BE ACCESSIBLE OR TRANSLATED CORRECTLY FROM OR INTO ANY LANGUAGE, NOR DOES IT GUARANTEE THAT YOU WILL BE FREE FROM THE THREAT OF, OR THE FILING OF, AN ACCESSIBILITY LAWSUIT. USE OF OUR SERVICES MAY NOT PRESENT A DEFENSE OF ANY KIND IN SUCH A LAWSUIT. WE MAKE NO SUCH REPRESENTATION REGARDING THE USE OF OUR SERVICES, NOR DO WE AGREE TO INDEMNIFY YOU AGAINST THE COSTS OF RESPONDING TO ANY SUCH LAWSUIT.
We may revise and update these Terms from time to time in our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Services thereafter. The date that these Terms were last revised is identified at the top of the page. If you have provided us with an email address, we may make commercially reasonable efforts to provide you with email notice informing you that these Terms have changed, but such notice is for your convenience only and shall not be required for the effectiveness of the changes. Your continued use of the Services following the posting of revised Terms means that you accept and agree to the changes. You are expected to check this page each time you access the Services so that you are aware of any changes, as they are binding on you. Any revised versions of these Terms shall supersede all previous versions.
“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use some or all of the Services.
“Aggregated Data” means data and information related to your use of the Services that is used by Truabilities in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services. Aggregated Data does not include personally identifiable information.
“Documentation” means any instructions, user manuals, handbooks, and guides relating to the Services provided by Truabilities to User either electronically or in hard copy form.
“Law” means all applicable international, national, federal, state, local, or other industry or governmental authority laws, ordinances, regulations, rules, codes, orders (including executive orders), statutes, standards, treaties, common laws, judgments, awards, decrees, other requirements or rules of law.
“Order Form” means any online or hard copy form completed by User or an invoice sent to User by Truabilities in response to User’s creation of an account or request to use the Services.
“Services” means Truabilities’ websites, products, and services, including its current and future plugins, extensions, or other widgets, and any current or future software-as-a-service offerings, associated computer programs and modules, updates, modifications, enhancements, or new versions thereto, and any Documentation, assessments, tools, or other content made available or provided by Truabilities.
“User” means you, your corporation, governmental organization, or other legal entity, if you are entering into these Terms for another entity, or for yourself and another entity.
“User Data” means, other than Aggregated Data, your information, data, and other content, in any form or medium, that is accessed by, submitted to, posted on, or otherwise transmitted through your access to and use of the Services.
ACCESS AND USE OF SERVICES
Access. Subject to and conditioned upon User’s compliance with the terms and conditions of these Terms, Truabilities hereby grants to User a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to access and use the Services, solely in accordance with the terms and conditions herein. Such use includes the right to download and install the Truabilities plugins, extensions, or widgets, and is limited to User’s internal or personal use.
Use Restrictions. User shall not use the Services for any purposes beyond the scope of the access granted in these Terms. Any uses of the Services not expressly permitted under these Terms are expressly prohibited. You shall not: (i) make copies of the Services and related Documentation, except as authorized by these Terms or as required by applicable Law; (ii) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable; (iii) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Services or any part thereof; (iv) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, or any features or functionality of the Services, to any third party for any reason, including by making the Services available on a network where it is capable of being accessed by more than one device at any time; (v) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Services; or (vi) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person or entity, or that violates any applicable Law. You agree to use any Documentation only in conjunction with your use of the Services. For the avoidance of doubt, the Services and Documentation may not be reproduced or redistributed without the prior written consent of Truabilities.
Reservation of Rights. The Services are the exclusive property of Truabilities. Truabilities reserves all rights not expressly granted to User in these Terms. Except for the limited rights expressly granted by these Terms, nothing herein grants, by implication, waiver, estoppel, or otherwise, to User or any third party, any additional intellectual property rights or other right, title, or interest in or to the Services.
Suspension. Notwithstanding anything to the contrary in these Terms, Truabilities may suspend User’s access to any portion or all of the Services if: (i) Truabilities reasonably determines (a) that there is a threat or attack on any of the Services, (b) that your use of the Services disrupts or poses a security risk to the Services or to any other user of the Services, (c) that you are using the Services in breach of these Terms or for fraudulent or illegal activities, (d) that the provision of the Services is prohibited by applicable Law, (e) that suspension is otherwise reasonably necessary or prudent in Truabilities’ sole discretion; or (ii) you fail to make payment when due as further provided herein (any such suspension described in subclauses (i) or (ii), a “Service Suspension”). Truabilities shall use commercially reasonable efforts to provide written notice of any Service Suspension to User. Truabilities may, in its sole discretion, resume providing access to the Services after the event giving rise to the Service Suspension is cured. Truabilities will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that User may incur as a result of a Service Suspension.
Aggregated Data. Subject to the terms and conditions provided herein, Truabilities may monitor your use of the Services and collect and compile Aggregated Data based on your use of and interaction with the Services. As between Truabilities and User, all rights, title, and interest in Aggregated Data, and all intellectual property rights therein, belongs to and is retained solely by Truabilities. You agree that Truabilities may use and make Aggregated Data available to third parties solely in compliance with applicable Law, provided that such Aggregated Data does not contain any personal data or other information that could identify User or any particular individual.
Geographic Restrictions. You acknowledge that you may not be able to access or use all or some of the Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access and use the Services from outside the United States, you are responsible for compliance with local Laws.
YOUR GENERAL RESPONSIBILITIES
TERM AND TERMINATION
Term. These Terms shall commence as of the earlier of (i) your first access and use of the Services, or (ii) the date of completion of your Order Form. Unless otherwise expressly set forth herein or in an Order Form, the duration of these Terms will continue in full force and effect until you cease to use the Services and return or destroy all Services and Documentation.
Termination. Except as set forth herein, you may terminate these Terms by ceasing to use and access the Services, deleting your account, and deleting the Services and Documentation and all copies thereof from your browser, systems, devices, and anywhere else you may have stored them. Truabilities may terminate these Terms at any time without notice if it ceases to support the Services, which Truabilities may do in its sole discretion, or if you violate any of the terms and conditions of these Terms.
Termination Effect. Upon termination, all rights granted to you under these Terms will terminate, and you must cease all use of the Services and delete all copies of the Services and Documentation. Termination will not entitle you to any refund or affect your obligation to pay all fees that may have accrued or become due before termination.
Survival. Termination will not limit any of Truabilities’ rights or remedies at law or in equity. Without limiting the foregoing, the following rights and obligations shall survive termination of these Terms: (i) User’s representations and warranties, indemnification obligations, and use restrictions; (ii) Truabilities’ limitation of liability, disclaimer of warranties, and intellectual property rights; and (iii) any other right of Truabilities in these Terms that, by its nature, should survive termination of these Terms.
FEES AND PAYMENT
Fees. If you decide to purchase Services from us, in consideration of the right to access and use the Services purchased, User shall pay Truabilities all fees and expenses in accordance with the amounts and rates set forth in the applicable Order Form for Services purchased through your account. You acknowledge that pricing for your tier of Services may be based on the number of visits or another metric involving your website, and that when those number of visits or other metrics increase above an identified threshold, pricing may increase. You agree that Truabilities may charge to your credit card (or other payment method selected by you and approved by Truabilities through your account) all amounts due and owing for the Services, including service fees, set up fees, subscription fees, or any other fees or charges associated with your use of the Services. Truabilities may modify fees at any time, including by changing a free service to a paid service based on the number of website visits or other metrics involving the Services. Truabilities may, in its sole discretion, offer use of its Services for free during a short time period, which will require provision of your credit card in advance. If you do not cancel your usage of the Services by the end of this time period, Truabilities will then charge you for all amounts due thereafter for use of the Services. If Truabilities is unable to collect the fees owed by you at any time, then Truabilities may take any steps it deems necessary to collect such fees, and you will be responsible for all costs and expenses incurred by Truabilities in connection with such collection activity, including collection fees, court costs and attorneys’ fees. You acknowledge that, unless User is located in a state that prohibits a surcharge in respect of a credit or debit card payment, Truabilities may impose a surcharge of up to 3.5% on the amount of each credit or debit card transaction, which surcharge shall not be greater than Truabilities’ cost of acceptance of that card. You further agree that Truabilities may suspend or cancel your Services if you do not timely pay all amounts due and owing for the Services. You may cancel your paid Services at any time. If you cancel, your paid Services will continue until the end of the current service term, but you will not receive a refund for any Services already paid for. In addition to any other available remedy, if Truabilities determines that Access Credentials are being shared among multiple users to gain unauthorized access to the Services in violation of these Terms, then Truabilities may charge additional fees for such unauthorized use.
Taxes. All fees and other amounts payable by User under these Terms are exclusive of taxes and similar assessments. Without limiting the foregoing, User is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by User hereunder, other than any taxes imposed on Truabilities’ income.
SUPPORT AND MAINTENANCE
Internet Access. User understands and agrees that the operation and availability of the Services is dependent on User’s Internet and network availability, which is inherently unpredictable and may, from time to time, interfere with or prevent your access to or use of the Services. Truabilities does not guarantee the security of any information transmitted to or from you or any other user over the Internet, including through the use of email.
Features and Modifications. The inclusion, exclusion, and continued support for, any feature, functionality, module in, or release of, the Services is within the sole and absolute discretion of Truabilities. Truabilities retains the absolute right to modify, discontinue, delete, or restrict any aspect or feature of the Services without any liability or obligation to the User.
Services Availability. Truabilities does not warrant any particular level of availability for the Services. Truabilities will use commercially reasonable efforts to minimize downtime and interruptions to User’s access to the Services. User acknowledges and agrees that Truabilities has no control over downtime or interruptions arising out of or resulting from: (i) acts or omissions by User, or any other access to or use of User’s Access Credentials that does not strictly comply with these Terms; (ii) Internet connectivity; (iii) failure, interruption, outage, or other problems with any software, hardware, system, network, facility, or third party services; (iv) scheduled downtime or maintenance; or (v) disabling, suspension, or termination of the Services pursuant to these Terms. You acknowledge that use of adblocker and related technology by a website visitor may impede or eliminate functionality of the Services.
Updates. Truabilities may from time to time in its sole discretion develop and provide Services updates, which may include upgrades, bug fixes, patches, other error corrections, or new features (collectively, including related Documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Truabilities has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your browser settings, the Services will either automatically download and install all available Updates, or you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the Services or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Services and be subject to all terms and conditions of these Terms.
INTELLECTUAL PROPERTY OWNERSHIP; FEEDBACK
Services. User acknowledges that, as between User and Truabilities, Truabilities owns all right, title, and interest, including all intellectual property rights, in and to the Services and Aggregated Data. User has no right, license, or authorization with respect to any of the Services or Aggregated Data except as expressly set forth in these Terms. All other rights are expressly reserved by Truabilities. In furtherance of the foregoing, User hereby unconditionally and irrevocably grants to Truabilities an assignment of any right, title, and interest (that User may have or later obtain, by operation of law or otherwise) in or to the Aggregated Data, and any derivative works created under or in connection with these Terms, including all intellectual property rights relating thereto. To the extent that such User right, title, or interest cannot be assigned to Truabilities pursuant to this Section, User hereby grants to Truabilities a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display the Aggregated Data or derivative works. User shall cooperate and take such actions or provide such assurances, at no cost to Truabilities, as may be necessary to give full effect to these Terms. A feature of a Service may be the provision of messages to website visitors, and if you modify any language provided in those messages, you are solely responsible for any consequences arising from those modifications.
User Data. Truabilities acknowledges that, as between Truabilities and User, User owns all right, title, and interest, including all intellectual property rights, in and to the User Data. User hereby grants to Truabilities all such rights and permissions in or relating to User Data as are necessary or useful to Truabilities for its internal purposes and performance of these Terms. Further, User hereby grants to Truabilities a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the User Data and perform all acts with respect to the User Data as may be necessary for Truabilities to provide the Services to User.
Feedback. If User or any of its employees or contractors sends or transmits any communications or materials to Truabilities by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Truabilities is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. User hereby assigns to Truabilities on User’s behalf, and on behalf of its employees, contractors, and agents, all right, title, and interest in and to such Feedback, and Truabilities is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever; provided, however, that Truabilities is not required to use any Feedback.
Truabilities Marks. All Truabilities trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship (“Marks”), and all associated goodwill and intellectual property rights therein, are the property of Truabilities. Except as permitted herein, User shall not use any Marks without prior written consent from Truabilities. Further, User shall not remove, delete, alter, or obscure any Marks, specifications, warranties, or disclaimers, or any copyright, patent, or other intellectual property or proprietary rights notices from any Services, including any copy thereof.
Third-Party Materials. The Services may display, include, or make available third-party content (including data, information, applications, and other products, services, or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Truabilities is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Truabilities does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you. Your access to and use of such Third-Party Materials and links is entirely at your own risk and subject to such third parties’ terms and conditions.
YOUR INFORMATION AND DATA
Right to Provide Data. User represents and warrants to Truabilities that it has the right to provide and use all information and data entered into or accessed through the Services. You are responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of personal information and other information, content, and data under you control or in your possession.
Compliance with Law. It is User’s sole obligation and responsibility for its compliance with all Laws, rules, and other requirements. User represents, warrants, and covenants that it shall comply with all Laws, or other requirements, judgments, or determinations of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction. User shall be solely liable for its violation of any of the foregoing.
Data Loss or Damage. Truabilities is not responsible for any loss or damage to User’s information, data, or content. You hereby waive and release Truabilities from any claim, loss, or damages arising out of or resulting from information, content, or data loss or damage.
If you are unsatisfied with the Services, your sole remedy is to terminate these Terms. We may terminate these Terms, in whole or with respect to a Service, with or without cause, at any time immediately upon our disabling your Access Credentials. We may notify you of termination of the Terms via email. After the termination of these Terms or a Service, you are not authorized to access or use the Service, and you shall cease all such access and use. If you nonetheless access or use the Service in spite of termination of the Terms or Service, your use of, or access to, the Service will be subject to the version of the Terms then in effect as to all current users.
User shall indemnify, hold harmless, and, at Truabilities’ option, defend, Truabilities and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to: (i) your acts or omissions in connection with these Terms or your breach thereof; (ii) your use or misuse of, or your failure to use, the Services; (iii) your User Data, or any use thereof, in accordance with these Terms, including any alleged or actual infringement, misappropriation, or other violation of a third party’s right, including intellectual property rights; and (iv) your violation of any applicable Law, including but not limited to the Americans with Disabilities Act, as amended and supplemented, and any applicable privacy or data protection Laws, rules, and regulations worldwide.
WARRANTY DISCLAIMERS; WAIVER
THE TRUABILITIES SERVICES AND OTHER INFORMATION, DATA, AND CONTENT ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS AND WITH ALL FAULTS AND DEFECTS, WITHOUT WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TRUABILITIES, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, LICENSORS, AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, TRUABILITIES PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES, OR RESULTS OF USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS; ACHIEVE ANY INTENDED RESULTS; BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, BROWSERS, OR SERVICES; OPERATE WITHOUT INTERRUPTION; MEET ANY PERFORMANCE, RELIABILITY, OR INDUSTRY STANDARDS OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE; OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. USER HEREBY IRREVOCABLY WAIVES ANY AND ALL CLAIMS BASED ON OR RELATED TO THE FOREGOING.
LIMITATION OF LIABILITY
IN NO EVENT SHALL TRUABILITIES, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, LICENSORS, AND SERVICE PROVIDERS BE LIABLE TO USER OR ANY THIRD PARTY FOR (I) ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SERVICES, INCLUDING ANY BODILY INJURY, HARM, LOSS OF LIFE, OR IMPAIRMENT TO HEALTH OR WELLBEING THAT MAY ARISE OUT OF OR RESULT FROM THE USE OF, OR FAILURE TO USE, THE SERVICES; (II) LOST REVENUES OR PROFITS; (III) DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, REPUTATION, OR GOODWILL; (IV) LOSS OR CORRUPTION OF DATA; (V) LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; (VI) FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; (VII) FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; (VIII) SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; (IX) BREACHES IN SYSTEM SECURITY; (X) ANY ERRORS OR OMISSIONS IN THE SERVICES; (XI) YOUR RELIANCE ON ANY SERVICES OR CONTENT; OR (XII) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT TRUABILITIES WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL TRUABILITIES’ AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY ARISING OUT OF, UNDER, OR IN CONNECTION WITH THESE TERMS OR THEIR SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO TRUABILITIES PURSUANT TO THESE TERMS IN THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATIONS SET FORTH IN THIS LIMITATION OF LIABILITY SECTION SHALL APPLY EVEN IF USER’S REMEDIES UNDER THESE TERMS FAIL THEIR ESSENTIAL PURPOSE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE LIABILITY OF TRUABILITIES SHALL BE LIMITED IN ACCORDANCE WITH THESE TERMS TO THE FULLEST EXTENT PERMITTED BY LAW.
LIMITATION OF TIME TO FILE CLAIMS
ANY CAUSE OF ACTION OR CLAIM THAT YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
GOVERNMENT CONTRACTS AND RIGHTS
Government Requirements. To the extent any Laws relating to contracting with government entities or downstream contracting with other parties contracting with government entities (“Government Contracting Requirements”) impose any requirements or require terms or conditions that contradict the provisions in these Terms, User shall notify Truabilities in writing of such Government Contracting Requirements, and upon acceptance and written agreement by Truabilities, such Government Contracting Requirements shall govern and be enforceable between User and Truabilities as to only those provisions that contradict any such provision of these Terms.
U.S. Government Rights. The Services are in part commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the United States Government or any contractor therefor, you receive only those rights with respect to the Services as are granted to all other end users under license, 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 United States Government licensees and their contractors.
These Terms are governed by and construed in accordance with the internal laws of the State of Nevada without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the Laws of any jurisdiction other than those of the State of Nevada.
In the event of any conflict or claim arising out of or relating to any provision of these Terms or breach thereof, the parties shall make a good faith effort to settle such conflict amicably between themselves. Any such conflict which the parties are unable to resolve shall be settled in accordance with the rules of the American Arbitration Association, except as set forth herein. The award or decision shall be rendered by a single arbitrator. A single arbitrator shall be agreed upon by the parties, or, if the parties cannot agree upon an arbitrator within thirty days, then the parties agree that a single arbitrator shall be appointed by the American Arbitration Association. Such arbitration proceedings shall be conducted in Las Vegas, Nevada. The award or decision through arbitration shall be binding upon the parties and may be incorporated into and thereupon enforced as an order of a court of competent jurisdiction. Any and all proceedings to resolve claims or conflicts will be conducted only on an individual basis and not in a class, consolidated or representative action, and User agrees to this limitation as a condition of using the Services. The Federal Arbitration Act, federal arbitration law and the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 apply to these Terms and any arbitral award granted in connection with a claim. An arbitration decision may be confirmed by any court of competent jurisdiction. Notwithstanding anything to the contrary herein, User may opt out of the foregoing arbitration provision by notifying Truabilities of User’s desire to opt out, which writing must be dated, signed and delivered by U.S. Mail or by any nationally recognized delivery service (e.g., UPS, Federal Express, etc.), or by hand delivery to: Truabilities, LLC, Attn: Chief Executive Officer, 8350 W Sahara Avenue, Suite 270, Las Vegas, NV 89117. In order to be effective, the writing must clearly indicate User’s intention to opt out of the foregoing arbitration provision, and the envelope containing the signed writing must be received (if delivered by hand) or postmarked within thirty days of the date User initially accepts these Terms. Should User not opt out of the foregoing arbitration provision within such thirty-day period, User shall be bound by the terms of the foregoing arbitration provision. User has the right to consult with counsel of User’s choice concerning the foregoing arbitration provision.
VENUE; WAIVER OF JURY TRIAL
To the extent User opts out of the foregoing arbitration provision, any legal suit, action, or proceeding arising out of or related to these Terms or the rights and obligations granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Nevada in each case located in the city of Las Vegas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. USER 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 THESE TERMS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Export Regulation. The Services may be subject to United States export control Laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Services to, or make the Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by Law. You shall comply with all applicable Laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services available outside the United States.
Amendment and Modification; Waiver. No amendment to or modification of these Terms by User is effective unless it is in writing and signed by an authorized representative of Truabilities. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Assignment. The rights conferred by these Terms shall not be assignable by User without Truabilities’ prior written consent. If allowed, Truabilities may impose a reasonable fee on any such assignment. Truabilities may assign these Terms without notice to or consent of User. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. These Terms shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties, as the case may be, at Truabilities’ address set forth herein, in an applicable Order Form or in your account, or to such other address that may be designated by the party by giving Notice from time to time in accordance with this Section. All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in these Terms, Notice is effective only: (i) upon receipt by Truabilities (if Truabilities is the receiving party) or delivery in accordance with this Section (if Truabilities is not the receiving party); and (ii) if the party giving the Notice has complied with the requirements of this Section.
Relationship of the Parties. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity (other than the indemnified parties listed in the indemnification provisions) any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of these Terms.
Contact. Truabilities may periodically contact User for customer service purposes. By accessing the Services, you consent to receive such communications. User agrees that Truabilities may reference its business relationship with User in its marketing or sales materials.
Interpretation. For all purposes of these Terms, except as otherwise expressly provided or unless the context otherwise requires: (a) the terms defined herein include the plural as well as the singular and vice-versa; (b) any reference to an “Attachment” or “Exhibit” or a “Section” refers to an Attachment, Exhibit, or a Section, as the case may be, of these Terms; (c) all references to these Terms and the words “herein”,
“hereof”, “hereto” and “hereunder” and other words of similar import refer to these Terms as a whole and not to any particular Section or other subdivision; (d) all Section headings are for convenience only and shall not affect the interpretation or construction of these Terms; (e) the words “including,” “included” and “includes” mean inclusion without limitation; (f) the word “or” is not exclusive and shall have the
meaning commonly ascribed to the term “and/or”; and (g) any legal or equitable principles that might require or permit the construction of these Terms or any provision hereof against the party drafting these Terms shall not apply in any construction or interpretation of these Terms.
Severability. If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms. Such unenforceable term or provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by Law) or disregarding it (if not). If an unenforceable term or provision is modified or disregarded in accordance with this Section, the rest of these Terms are to remain in effect as written, and the unenforceable term or provision is to remain as written in any circumstances or jurisdictions other than those in which the provision is held to be unenforceable.
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