This Enterprise Services Agreement (this “Agreement”) is by and between Trint Limited, a private limited company formed under the laws of England and Wales (“Trint”), and (“Customer”). Trint and Customer may be referred to herein individually as a “Party,” and together as the “Parties.”
WHEREAS, Trint is the provider of a transcription, editing, and publishing platform and related services available on and through the website https://trint.com (the “Site”), as described in additional detail in The Agreement and incorporated herein by reference (the “Services”); and
WHEREAS, each of Customer and Trint desires to enter into this Agreement pursuant to which Trint will provide Customer with the right to access and use the Services and may perform for Customer the Professional Services (as defined below), subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements contained herein, and of other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
(a) Subject to the terms and conditions set forth in this Agreement, during the Term (as defined below), Trint hereby grants Customer limited, non-exclusive, non-transferable, non-sublicensable, and revocable rights to access and use those Services solely for its own internal business purposes. Such rights of access and use reflect an agreement for services as opposed to a software license. Customer agrees its purchase of these rights in relation to each End User is neither contingent on the delivery of any future functionality or features, nor is it dependent on any oral or written comments made by Trint or its agents with respect to future functionality or features.
(b) In order to use the Services, Customer must register an account through the Site which Customer will use to monitor, manage, and administer the use of the Services by its End Users (as defined herein) and their activity, statistics, and associated data. Access to such account by Customer and to End User accounts by End Users will be restricted through the use of unique passwords and user names (together, the “Passwords”). Customer agrees to maintain the Passwords in strict confidence and not to provide the Passwords to any third party. Customer agrees to notify Trint promptly if there is a loss or compromise of any Passwords and Customer will be responsible solely for all actions, damages, liabilities, and losses incurred as a result of such loss or compromise. Until Trint has actual notice of such loss or compromise or unauthorized use, Trint will consider all account activity to be authorized by Customer. For purposes hereof, “End User” means each of Customer’s employees, independent contractors, and other third parties whom Customer authorizes to use the Services.
(c) In relation to each End User, Customer undertakes that: (i) the maximum number of End Users that it authorizes to access and use the Services shall not exceed the number of seats listed in Exhibit A with respect to the Services; (ii) Customer shall make such payment to Trint for any End User above any such maximum at the rate specified by Trint; (iii) it shall permit Trint or Trint’s designated auditor to audit the Services in order to establish the name and password of each End User and Trint’s data processing facilities to audit compliance with this Agreement. Each such audit may be conducted no more than once per quarter, at Trint’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with Customer’s normal conduct of business; (iv) if any of the audits referred to in clause 1(c)(iii) reveal that any password has been provided to any individual who is not an End User, then without prejudice to Trint’s other rights, Customer shall promptly disable such passwords and Trint shall not issue any new passwords to any such individual; and (v) if any of the audits referred to in clause 1(c)(iii) reveal that Customer has underpaid any of the Fees to Trint, then without prejudice to Trint’s other rights, Customer shall pay to Trint an amount equal to such underpayment as calculated in accordance with its current prices within 10 business days of the date of the relevant audit.
(d) At all times, Customer hereby agrees that each End User’s use of the Services is subject to such End User’s compliance with the terms and conditions set forth in this Agreement. Further, Customer hereby agrees it is and will remain liable for any breach of the terms and conditions set forth in this Agreement by an End User (as if such End User were an original party hereto). In the event of any such breach by End User of any term or condition set forth in this Agreement, including actual, threatened, or suspected breaches, Trint may suspend or terminate such End User’s use of the Services, or suspend Customer’s access to and use of the Services, without penalty or liability to Customer, until such breach is cured to Trint’s satisfaction.
(e) In addition to the Services, Customer may purchase from Trint certain professional services (the “Professional Services”) pursuant to a statement of work executed by the Parties and referencing this Agreement (a “Statement of Work”). Each Statement of Work will be subject to the terms and conditions set forth in this Agreement and will be considered a part hereof. In the event of any conflict or inconsistency between the terms and conditions set forth in this Agreement and in any Statement of Work, and unless otherwise expressly set forth in such Statement of Work, the terms and conditions set forth in this Agreement will prevail. The Professional Services are provided by Trint separate and distinct from the Services and are not required for Customer’s use or enjoyment of the Services.
(a) As consideration for Customer’s use of the Services and, as applicable, the Professional Services, Customer agrees to pay the fees set forth in The Agreement (“Fees”), which Fees may be adjusted by Trint no later than sixty (60) days prior to the end of the then-current Term to be effective on the date on which the renewal of such Term is effective (which adjustment shall not be considered an amendment to this Agreement). Fees will be billed at the period(s) specified in The Agreement and, along with reimbursements for expenses, if any, are due and payable in the currency designated therein within thirty (30) days of Customer’s receipt of an invoice. Paid Fees are non-refundable. Trint may charge a late fee equal to the greater of one and one half percent (1.5%) per month or the maximum amount allowed under applicable law on unpaid Fees that are past due for more than thirty (30) days, until such Fees are paid in full. In addition, if any Fees are unpaid and outstanding for more than thirty (30) days after the date on which such payment is due, Trint may discontinue, terminate or suspend the Services, without incurring any liability to Customer. Despite any such discontinuation or suspension, Customer acknowledges and agrees it will be required to pay all Fees due and payable until this Agreement is terminated in accordance with the termination provisions set forth herein. For Fees unpaid and outstanding for more than sixty (60) days after the date on which such Fees are due, Customer is responsible for, and agrees to pay, Trint’s reasonable costs and expenses of collection, including, but not limited to, court and attorneys’ fees and expenses. Unless this Agreement is terminated pursuant to Section 13(b) below for non-payment, Customer’s rights of access to and use of the Services may be re-instated upon Customer’s payment of all outstanding Fees. In such event, Trint may require reasonable credit guarantees before such re-instatement. Notwithstanding anything to the contrary set forth herein, if Customer provides Trint with a credit card number for payment, Customer hereby acknowledges and agrees Trint may automatically bill Customer for all Fees if and as they become due pursuant hereto.
(b) All Fees are exclusive of taxes, duties, tariffs and other government-imposed charges, however designated, levied, or based (collectively, “Taxes”), and Customer agrees to pay Fees without deduction of any kind including, but not limited to, withholding taxes or VAT withholdings. All Taxes will be paid by Customer, excluding only Taxes on Trint’s net income. Applicable Taxes will be billed as a separate item on an invoice where practicable.
(a) Customer’s use of the Services shall be subject to the Services plan agreed by Customer as offered by Trint from time to time (each a “Plan”).
(b) Any Plan which Customer agrees in relation to the Services shall be governed by the terms of such Plan and these terms shall be incorporated into this Agreement. Customer acknowledges that each Plan may be subject to, amongst other things, a fair use policy which imposes a limit of fifty (50) hours per End User for which the Services may be used during each calendar month (the “Fair Use Policy”) unless otherwise specified. Such limit in the Fair Use Policy is applied to the Term in aggregate for (i) all calendar months during the Term; and (ii) across all End Users. No limit shall be applied by Trint during any particular calendar month and the Fair Use Policy shall be considered on the basis of such aggregate of the Term.
(c) Customer shall not be entitled either to any unused hours under a Fair Use Policy for any previous month nor any payment in lieu of any such unused hours.
(d) From time to time, the Customer may be entitled to purchase additional products, including the Bulk Hours Add-on, which increase the applicable limits under the relevant Fair Use Policy. The details of any such increases shall be advised to the Customer in relation to such additional products.
(e) Trint shall be entitled to enforce the terms of any Fair Use Policy at its sole discretion.
(f) Customer acknowledges that the Fair Use Policy shall not apply to each of Trint’s Realtime product and its Bulk Hours product Add-on. In the event that Customer elects to use either of these products, all restrictions or product-specific requirements which may be applicable to such products shall be as listed in Exhibit A.
(g) Trint agrees to provide information to Customer detailing any applicable Fair Use Policy which applies to the relevant Plan. Customer agrees that the terms of a Plan may be amended by Trint from time to time on prior notice to Customer.
(h) A Plan may include an option for Customer to purchase additional Services or parts of the Services as one of its features. Any such additions and the payments made with respect to them shall be subject to the terms of this Agreement.
(a) provide Trint with: (i) all necessary co-operation in relation to this Agreement; and (ii) all necessary access to such information as may be required by Trint, in order to provide the Services, including but not limited to Customer Information, security access information and configuration services.
(b) without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement.
(c) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in Customer’s provision of such assistance as agreed by the parties, Trint may adjust any agreed timetable or delivery schedule as reasonably necessary.
(d) ensure that the End Users use the Services in accordance with the terms of this Agreement and shall be responsible for any End User’s breach of this Agreement.
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Trint, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services.
(f) ensure that its network and systems comply with the relevant specifications provided by Trint from time to time; and
(g) be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Trint’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer’s network connections or telecommunications links or caused by the internet.
(a) As between Trint and Customer, all software embedded in the Site and in the Services developed, owned or controlled by Trint (as applicable) (the “Software”), and the Services, are and will remain the sole and exclusive property of Trint. Customer agrees not to take any actions inconsistent with Trint’s ownership of any of Trint’s rights in and to the Software. Customer agrees that Customer will not, directly or indirectly: (i) assign, distribute, license, sublicense, transfer, sell, rent, lease, time share, grant a security interest in, or otherwise transfer any rights in or to the Software, or make the Software available to third parties except as expressly authorized by this Agreement; (ii) modify, translate, reverse engineer, decompile or disassemble the Software for any purpose, including, without limitation, the creation of derivative works or similar products; (iii) upload, link to or post any portion of the Software on a bulletin board, intranet, extranet or web site; (iv) use or distribute the Software in violation of any applicable laws, regulations or export restrictions; (v) possess or use the Software in any format other than machine-readable format; (vi) use the rights granted under this Agreement to design, develop or distribute a commercial product or service that competes with the Services; (vii) access the Services for the purposes of monitoring their performance or availability or make available to any third party any analysis of the results of operation of any Services, including benchmarking results, or otherwise publicly disseminate information regarding the performance of the Services; (viii) use the Services to send or store infringing, obscene, threatening, harassing, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights, or to send or store malicious or harmful software code; (ix) attempt to gain unauthorized access to any component of the Services or its related systems and networks, or to attempt to circumvent, disable or disrupt any mechanism in the Services intended to limit use of such Services; (x) use any robot, spider, scraper or other automated means to access Services and/or collect content for any purpose without Trint’s express written permission; (xi) perform or facilitate any act which, directly or indirectly, causes to be transmitted to, uploaded or downloaded by, the Services or any end user any software viruses, worms, Trojan horses, time bombs, trap doors or any other computer code, files or programs or repetitive requests for information designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or to diminish the quality of, interfere with the performance of, or impair the functionality of, the Services; or (xii) remove, alter or obscure any proprietary or other notices contained in the Services. Trint reserves all rights in the Services not explicitly granted herein. If Customer uses the Services in any country within the European Union, the prohibitions set forth herein will not affect Customer’s rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.
(b) Unless otherwise agreed by the Parties in writing, all improvements or modifications or updates to, enhancements of, derivative works made from, or suggestions, ideas and recommendations with respect to, the Services (each, an “Improvement”) are and will be owned by Trint regardless of which Party controls such Improvement. Promptly, Customer will provide to Trint a complete written disclosure for each Improvement which identifies the features or concepts which Customer believes to be new, unique or different. If any intellectual property rights associated with such Improvement fall within the definition of “work made for hire,” as such term is defined in 17 U.S.C. § 101, such intellectual property rights will be considered “work made for hire” and will be owned solely and exclusively by Trint. If any such intellectual property rights do not fall within such definition of “work made for hire,” then Customer hereby assigns, automatically assigns and upon the creation thereof will assign to Trint all of Customer’s right, title and interest in and to such Improvement and all intellectual property rights associated therewith, and such Improvement will be the sole and exclusive property of Trint. Both Parties agree to execute such documents as may be required to evidence such ownership and not to take any action inconsistent therewith. Trint has sole discretion as to whether to use or implement any such Improvement.
(a) Customer is and will remain the sole and exclusive owner of all Content (as defined herein); provided, however, Customer hereby grants to Trint: (i) a non-exclusive, sublicensable, transferable, royalty-free, fully-paid up license to reproduce, display, create derivative works from and otherwise to use in any and all manners the Content to the extent required to provide the Services; and (ii) a non-exclusive, perpetual, worldwide, fully-paid up, royalty-free license to use non-personally identifiable Content in aggregate and blinded formats that do not identify, reference or imply an association with, Customer or its Content, for the purposes of creating benchmarking, statistical, research and marketing analyses, surveys, reports, and studies. For purposes hereof, “Content” means and includes all content provided by Customer to Trint and/or is submitted by Customer to the Services hereunder, including, without limitation, audio files, video files, text, music, or other materials or metadata. Customer solely is responsible for the Content, including the accuracy, quality, integrity, legality, reliability, and appropriateness thereof, and all consequences of submitting the Content to the Services. Customer acknowledges Trint does not and will not verify, endorse, review, monitor, manage, or screen Content for compliance with this Agreement or applicable laws, and Trint will have no obligation to do so; provided, however, Trint reserves the right to refuse, move, modify, or delete any Content and/or suspend the Services to the extent Trint determines, in good faith, that such suspension is necessary to comply with applicable law or to prevent significant harm to Trint or any third party without notice, penalty, or liability to Customer. Customer acknowledges and agrees that after the thirtieth (30th) day following any termination or expiration of this Agreement, Trint has no obligation to retain the Content and may delete and destroy such Content without providing Customer with notice of such deletion.
(b) Notwithstanding anything to the contrary set forth herein, Customer acknowledges and agrees Trint may archive certain Content and may disclose such Content if disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce its right under this Agreement; (iii) respond to claims that any Content violates the rights of a third party; or (iv) protect the rights, property, or personal safety of Trint, its users and/or the public.
(a) Trint collects certain personal and business-related information about its customers and end users, which generally includes, but is not limited to, contact and other information inputted during account registration or during use of the Services, information which identifies application software; device and application IDs; communications to and from Trint; geographic location; and information related to usage of the Site and the Services (collectively, the “Customer Information”). Customer consents to Trint’s use and disclosure of such information solely in connection with: (a) Trint’s provision of the Service and enforcement of its rights hereunder; (b) Trint’s delivery to Customer of customer and technical support information and marketing communications; and (c) the creation of benchmarking, statistical, research and marketing analyses, surveys, reports and studies, but only in aggregate, blinded, non-personally identifiable formats that do not identify, reference or imply an association with Customer. For the purposes set forth in Section 5(c) hereof, Customer hereby grants to Trint a non-exclusive, perpetual, worldwide, fully-paid up, royalty-free license. Subject to the foregoing, Customer Information will be considered Customer’s Confidential Information (as defined below).
(b) Customer shall own all right, title and interest in and to all of the Customer Information that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Information.
(c) Trint shall follow its archiving procedures for Customer Information as set out in its relevant policy, as such document may be amended by Trint in its sole discretion from time to time. In the event of any loss or damage to Customer Information, Customer’s sole and exclusive remedy against Trint shall be for Trint to use reasonable commercial endeavours to restore the lost or damaged Customer Information from the latest back-up of such Customer Information maintained by Trint in accordance with the archiving procedure described in its policy. Trint shall not be responsible for any loss, destruction, alteration or disclosure of Customer Information caused by any third party (except those third parties sub-contracted by Trint to perform services related to Customer Information maintenance and back-up for which it shall remain fully liable under clause 5(w) below).
(e) Both parties will comply with all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended (the “Data Protection Legislation”). This clause is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
(f) Each of Customer and Trint acknowledge that: (i) if Trint processes any personal data on Customer’s behalf when performing its obligations under this Agreement, Customer is the controller and Trint is the processor for the purposes of the Data Protection Legislation; (ii) the personal data may be transferred or stored outside the EEA or the country where Customer and the End Users are located in order to carry out the Services and Trint’s other obligations under this Agreement.
(g) Without prejudice to the generality of clause 5(e), Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Trint for the duration and purposes of this Agreement so that Trint may lawfully use, process and transfer the personal data in accordance with this Agreement on Customer’s behalf.
(h) Without prejudice to the generality of clause 5(e), Trint shall, in relation to any personal data processed in connection with the performance by Trint of its obligations under this Agreement, process that personal data only on the documented written instructions of Customer unless Trint is required by the laws of any member of the European Union or by the laws of the European Union applicable to Trint and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where Trint is relying on Applicable Laws as the basis for processing personal data, Trint shall promptly notify Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Trint from so notifying Customer.
(i) Trint shall not transfer any personal data outside of the European Economic Area and the United Kingdom unless appropriate safeguards are provided and Trint complies with its obligations under the Data Protection Legislation in relation to the transfer.
(j) Trint shall assist Customer, at Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators.
(k) Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
(l) Customer consents to Trint appointing such party as has been advised by Trint to Customer as a third-party processor of personal data under this Agreement. Trint confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 5 and in either case which Trint undertakes reflect and will continue to reflect the requirements of the Data Protection Legislation. As between Customer and Trint, Trint shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 5.
(m) Either party may, at any time on not less than 30 days’ notice, revise this clause 5 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).
(a) During the Term and during the three (3)-year period thereafter, each Receiving Party (as defined herein) agrees: (i) not to copy, disclose to third parties, or use the Disclosing Party’s (as defined herein) Confidential Information for any purpose other than for the performance of this Agreement; and (ii) protect the Disclosing Party’s Confidential Information with the same degree of care it exercises to protect its own Confidential Information (but in any event, with no less than a reasonable degree of care) to prevent the unauthorized, negligent, or inadvertent use, disclosure, or publication thereof. For purposes hereof, “Confidential Information” means any information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) that relates to such Disclosing Party and that reasonably should be known by the Receiving Party to be confidential or proprietary to the Disclosing Party under the circumstances of disclosure or in light of the nature of the information disclosed. Confidential Information will not include information that: (A) was publicly available, or that subsequently becomes publicly available, except by wrongful disclosure hereunder by the Receiving Party; (B) was in the Receiving Party’s possession prior to receipt of the same hereunder, as evidenced by the Receiving Party’s prior written records; (C) was received from a third party who was not known by the Receiving Party to be under any obligation of confidentiality with respect to such information or to have violated any applicable law; or (D) was independently developed by the Receiving Party as must be evidenced by written records created by such Receiving Party contemporaneously with such independent development. In the event that the Receiving Party becomes required by law, rule, regulation, judicial or administrative process to disclose any of the Disclosing Party’s Confidential Information, prior to making such disclosure, to the extent permitted by applicable law or regulation, such Receiving Party shall provide the Disclosing Party with prompt written notice thereof, so that the Disclosing Party may seek a protective order or other appropriate remedy. Subject to the license set forth in Section 4(a)(ii) above and Section 5(c) above, all of a Disclosing Party’s Confidential Information shall be returned or destroyed, as instructed by such Disclosing Party, upon the termination or expiration of this Agreement.
(b) Trint agrees to maintain industry standard administrative, physical and technical safeguards to protect the Content to the extent under its possession or control. Notwithstanding the foregoing, Customer acknowledges Trint does not possess, own, or control the servers on which the Content is stored and agrees Trint is not responsible or liable for any deletion, correction, destruction, damage, loss or failure to store any Content thereon.
Each Party hereby acknowledges and agrees the terms, conditions and restrictions set forth in Sections 3, 5, and 6 above are reasonably necessary for the protection of the other Party’s business and goodwill, and any breach or threatened breach by such Party of any of such terms, conditions or restrictions may cause such other Party substantial and irreparable harm for which monetary damages alone will not be adequate; and accordingly, notwithstanding Section 15 below, in the event of such a breach or threatened breach, such other Party has the right to seek immediate injunctive relief and/or specific performance in a court of competent jurisdiction, in addition to any other remedies available at law or in equity.
(a) The Services interact with and process information provided through third party services and products. Any business relationship, exchange of data, or other interaction between Customer and a third party and/or any purchase, download or use by Customer of any product or service offered by a third party, is solely between Customer and such third party. While Trint may rely on data or information provided or generated by a third party’s products and services in the course of providing the Services, Customer hereby acknowledges that Trint does not make any representation, warranty or guarantee with respect to such third parties, their products or services, or the accuracy, reliability or completeness of any such data and information. Customer agrees Trint is not liable for any acts or omissions based on its reliance on such data and information or any loss or liability caused by such third parties.
(b) The Services may be provided with open source software. Customer’s use of such open source software in connection with the Services is subject to and governed by the terms of the applicable open source license. Except as otherwise set forth in the applicable open source license(s), the open source software provided with the Services is provided “as is,” and without representation or warranty of any kind.
(c) The Site contains links to independent third party web sites. Such links are provided solely as a convenience to Customer. The linked sites are not under Trint’s control, and Trint is not responsible for the content of those sites.
(a) Each Party represents and warrants to the other Party that: (i) its performance under this Agreement will not violate any applicable law; (ii) it is duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation; (iii) it has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder; and (iv) this Agreement has been duly executed by its authorized representative and is legally binding upon it and enforceable in accordance with its terms.
(b) Customer represents and warrants to Trint that: (i) it owns, fully and outright, or otherwise possesses and maintains all rights, approvals, licenses, consents and permissions as are necessary to grant to Trint the licenses and rights hereunder; (ii) its use of the Content and the Services is and will at all times be: (A) in accordance with all applicable laws, rules and regulations; and (B) without infringement or misappropriation of any third party intellectual property or other rights; and (iii) Customer is not directly or indirectly (as an owner, strategic partner or otherwise) engaged in any business relationship or activity that competes with the Services.
(a) Subject to the indemnification obligations described in Section 10(b) below, at its sole cost and expense, Customer hereby agrees to defend and hold harmless Trint and its affiliates, subsidiaries, officers, directors, stockholders, employees, consultants, representatives, agents, successors and assigns (the “Indemnitees”) in any action or claim, and to indemnify Trint and its Indemnitees from and against any and all losses, liabilities, sums of money, damages, expenses, and costs (including, but not limited to, reasonable attorneys’ fees) (collectively, “Loss”), arising from such action or claim in connection with Customer’s use of the Services.
(b) Notwithstanding the foregoing, the indemnifying Party under this Section 10 is not required to fulfill its indemnification obligation hereunder if the indemnified Party fails to: (i) promptly notify such indemnifying Party of the action or claim, and such failure prejudices such indemnifying Party’s ability to fulfill its obligations hereunder; (ii) provide such indemnifying Party with reasonable assistance in its defense and settlement of such action or claim, at such indemnifying Party’s sole cost and expense; and (iii) provide such indemnifying Party with the exclusive right to control and direct the defense of such action or claim; provided, however, such indemnifying Party may not settle an action or claim without the indemnified party’s prior written consent, unless such settlement: (A) includes an unconditional release of such indemnified party(ies) from all liability arising out of such action or claim; and (B) is solely monetary in nature and does not include an admission of fault by such indemnified party(ies), any injunctive or equitable relief against such indemnified party(ies), or otherwise adversely affect such indemnified party(ies).
(c) Notwithstanding anything to the contrary set forth in Section 10(b) above, Trint is not required to perform its indemnification obligations under Section 10(b) above to the extent a Loss arises out of or is connected to: (i) Customer’s or its End User’s misuse or unauthorized use of the Services; (ii) Customer’s combination of the Services with any products, services, information, materials, technologies, business methods or processes not furnished or authorized by Trint; or (iii) Customer’s unauthorized manipulation, modification, or alteration of the Services. Upon the occurrence of any claim for which indemnity is or may be required under Section 10(b)(i) above, or in the event that Trint believes that such a claim is likely, at its option, Trint may: (A) appropriately modify the infringing software so that it becomes non-infringing, or substitute functionally equivalent software; (B) obtain a license to the applicable third party intellectual property rights in order to stop or avoid such infringement; or (C) if neither (A) nor (B) are feasible, terminate Customer’s use of the Services and provide Customer with a refund of any prepaid Fees. This Section 10 sets forth Trint’s sole liability, and Customer’s sole remedy, for a Claim related to the cause of action underlying Trint’s indemnification obligation under Section 10(b)(i) above.
EXCEPT TO THE EXTENT EXPRESSLY SET FORTH HEREIN, THE SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRINT DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT. TRINT DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS NOR DOES IT GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE SERVICES.
TRINT DOES NOT WARRANT THAT TRANSCRIPTION WILL BE ERROR FREE AND CUSTOMER ACKNOWLEDGES THAT THE ACCURACY, RELIABILITY, OR COMPLETENESS THEREOF IS DEPENDENT ON THE QUALITY AND INTEGRITY OF THE CONTENT.
CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THE SERVICES MAY RELY UPON THIRD PARTY SOFTWARE AND HARDWARE FOR CERTAIN FUNCTIONS AND, EXCEPT AS SET FORTH EXPRESSLY HEREIN, TRINT MAKES NO REPRESENTATION, WARRANTY, PROMISE OR GUARANTEE TO CUSTOMER THAT SUCH SOFTWARE OR HARDWARE WILL BE ERROR FREE, ACCOMPLISH A SPECIFIED PURPOSE, OR PERFORM IN ACCORDANCE WITH ANY PARTICULAR STANDARD, LEVEL OR METRIC AND TRINT IS NOT LIABLE TO CUSTOMER FOR ANY FAILURE THEREOF. CUSTOMER ACKNOWLEDGES AND AGREES THE SERVICES ARE NOT INTENDED TO REPLACE CUSTOMER’S PROFESSIONAL SKILLS OR JUDGEMENT. CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMER’S OWN RISK, AND CUSTOMER ASSUMES ALL LIABILITY FOR OUTCOMES BASED THEREON.
IN NO EVENT IS TRINT LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY SPECIAL, LOST PROFITS, INDIRECT, INCIDENTAL, EXEMPLARY, DIRECT, CONSEQUENTIAL, REMOTE OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SERVICES, THE PROFESSIONAL SERVICES, OR THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS, EVEN IF TRINT HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FURTHER, IN NO EVENT WILL TRINT’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR CLAIMS, LOSSES, OR DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, INDEMNITY OR OTHERWISE, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT OR THE SERVICES EXCEED FEES PAID HEREUNDER DURING THE TWELVE (12)-MONTH PERIOD ENDING ON THE DATE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM, LOSS OR DAMAGE. No claim may be asserted by Customer against Trint more than twelve (12) months after the date this Agreement terminates or expires. Except in the event of any failure, or Trint’s non-provision, of the Services, Customer’s sole and exclusive remedy shall be for Trint to use commercially reasonable efforts to repair or provide the Services.
SUBJECT TO THE EXCLUSIONS LISTED BELOW, TRINT’S TOTAL AGGREGATE LIABILITY IN CONTRACT (INCLUDING IN RESPECT OF THE INDEMNITY AT CLAUSE 10, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE, ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED TO 50% OF THE TOTAL FEES PAID BY CUSTOMER IN THE CALENDAR YEAR IN WHICH THE CLAIM AROSE.
NOTHING IN THIS AGREEMENT EXCLUDES THE LIABILITY OF TRINT FOR DEATH OR PERSONAL INJURY CAUSED BY TRINT’S NEGLIGENCE OR FOR FRAUD OR FRAUDULENT MISREPRESENTATION.
CUSTOMER ACKNOWLEDGES TRINT DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. ACCORDINGLY, TRINT WILL NOT BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. CUSTOMER UNDERSTANDS AND AGREES ITS USE OF THE SERVICES AND/OR PROFESSIONAL SERVICES IS AT ITS OWN RISK AND DISCRETION.
THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT EACH PARTY HAS ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN, WHICH ALLOCATE RISK BETWEEN TRINT AND CUSTOMER AND FORM A BASIS OF BARGAIN BETWEEN THE PARTIES. SOLELY IF AND TO THE EXTENT REQUIRED IN ORDER TO MAKE THIS LIMITATION OF LIABILITY ENFORCEABLE, NOTHING SET FORTH IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT LIABILITY TO A GREATER EXTENT THAN IS PERMITTED BY APPLICABLE LAW OR SHALL EXCLUDE OR LIMIT LIABILITY FOR FRAUD, FRAUDULENT MISREPRESENTATION OR FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE.
(a) The term of this Agreement commences on the Effective Date and, unless earlier terminated as provided herein, continues for a period of one (1) year (the “Initial Term”). Contemporaneous with the expiration of the Initial Term and each successive one (1)-year term thereafter, this Agreement will automatically renew for successive one (1)-year terms unless and until terminated in accordance with the terms and conditions set forth herein (each such one (1)-year term collectively, the “Term”).
(b) A Party may terminate this Agreement as of the end of the then current Term by providing the non-terminating Party with sixty (60) days’ prior written notice of its intention not to renew this Agreement no later than sixty (60) days prior to the end of the then current Term. A Party may terminate this Agreement immediately in the event that: (i) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment; (ii) the other Party fails to cure a material breach of any term or condition, or of any of its representations or warranties set forth herein within thirty (30) days after such other Party’s receipt of written notice thereof; (iii) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; (iv) in the event the other Party files a petition in bankruptcy or for reorganization or a third party files a petition in bankruptcy or for reorganization against such other Party, which is not dismissed within sixty (60) days, or in the event of an assignment by such other Party for the benefit of its creditors, or the appointment of a receiver, trustee, liquidator or custodian for all or a substantial part of such other Party’s assets. Customer’s termination notice must be emailed to Trint at: email@example.com. Upon any termination or expiration of this Agreement: (A) the rights granted in Section 1 above shall terminate effective immediately as of the date of such termination or expiration; and (B) Customer will remain obligated to pay Fees which were incurred prior to (and on) the effective date of such termination or expiration, as the case may be; (v) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this clause 13(b); (vi) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or (vii) there is a change of control of the other party.
(c) On termination of this Agreement for any reason: (i) all licences granted under this Agreement shall immediately terminate and Customer shall immediately cease all use of the Services; (ii) each party shall return and make no further use of any equipment, property and other items (and all copies of them) belonging to the other party; (iii) Trint may destroy or otherwise dispose of any of the Customer Information in its possession in accordance with this Agreement, unless Trint receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to Customer of the then most recent back-up of the Customer Information. Trint shall use reasonable commercial endeavours to deliver the back-up to Customer within 30 days of its receipt of such a written request, provided that Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). Customer shall pay all reasonable expenses incurred by Trint in returning or disposing of Customer Information; and (iv) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
The relationship of the Parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to create a joint venture or partnership between the Parties or to give either Party the power to act as agent for the other or to enter into any agreement on behalf of the other Party.
This Agreement and any dispute, controversy, or claim arising under, out of, or in connection with this Agreement will be governed by, and construed and enforced in accordance with, the laws of the State of New York, as it is applied to agreements entered into and to be performed entirely within New York except for those conflicts of law rules thereof that would require or permit the application of the laws of another jurisdiction. Except as otherwise expressly set forth in this Agreement, any dispute or controversy arising under, out of, or in connection with, this Agreement will be resolved by binding arbitration under the then current Rules of Arbitration of the International Chamber of Commerce (including the expedited procedures and optional rules for emergency measures of protection thereunder) before a single arbitrator. Any such arbitration shall be conducted in London, England. Judgment upon any award may be entered in any court of competent jurisdiction. The arbitrator shall be designated by mutual agreement of the Parties or, if the Parties cannot agree on an arbitrator within ten (10) days after a request for arbitration hereunder, each Party shall designate one (1) arbitrator and the arbitrators so designated shall designate a third arbitrator who shall conduct the arbitration. The decision of the arbitrator is binding and conclusive upon the Parties. Any arbitration award granted hereunder shall be enforceable under the applicable terms and conditions of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (the New York Convention), as amended to date. The Parties expressly agree this Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods. All rights and remedies hereunder are cumulative.
If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.
Any notice provided for in this Agreement shall be given in writing in English. Except to the extent set forth herein, all notices and communications hereunder shall be in a writing and shall be transmitted by email, hand delivery, overnight courier service or by registered or certified mail, return receipt requested, postage prepaid, to the address set forth on the signature page below.
A Party shall be excused from a delay or failure to perform its obligations under this Agreement (except for its payment obligations arising hereunder) if such delay or failure is as a result of any event beyond the Party’s reasonable control and without its fault or negligence, including, but not limited to acts of God, acts of the public enemy, insurrections, riots, embargoes, labor disputes, including strikes, lockouts, job actions or boycotts, fires, explosions or floods (each, a “Force Majeure Event”), provided that such performance shall be excused only to the extent of, and during the reasonably unavoidable continuance of, such disability that cannot be mitigated by the reasonable actions of the delayed Party. Any time specified for completion of performance falling due during or subsequent to the occurrence of any such events shall be automatically extended for a period of time equal to the reasonably unavoidable period of such Force Majeure Event.
This Agreement, including any Statement of Work, if and as applicable, constitutes the entire agreement and understanding between Trint and Customer and supersede all prior and contemporaneous agreements, documents, and proposals, oral or written, between Trint and Customer. Each Party acknowledges that it has not been induced to enter this Agreement by any representation or statements, oral or written, not expressly contained herein. No amendment or modification of this Agreement will be valid or binding unless in writing and signed by an authorized representative of each Party. Customer may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of Trint. A Party’s failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default. If any provision of this Agreement is held to be unenforceable or invalid for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, such provision will be deemed to be written, construed, and enforced so as to apply to the maximum extent permitted by law. The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement, will survive the completion of performance and termination of this Agreement. Customer hereby consents to Trint’s use of Customer’s name and logo in Trint’s marketing and promotional materials and on the Site. In the event a non-English version of this Agreement is created and there is a conflict of terms between such non-English version and the English version of this Agreement, the English version will govern.