BY CLICKING THE “I ACCEPT” BUTTON DISPLAYED AS PART OF THE ONLINE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR USE OF TCR SOFTWARE’S ONLINE SERVICE FOUND AT TCRSOFTWARE.COM, INCLUDING ANY OFFLINE COMPONENTS (COLLECTIVELY, THE “SERVICE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE SERVICE. THESE TERMS AND CONDITIONS ALSO APPLY DURING ANY FREE TRIAL OR DEMONSTRATION USE OF THE SERVICE.
As part of the Service, TCR Software will provide you with use of the Service, including a browser interface and data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the TCR Software website incorporated by reference herein, including but not limited to TCR Software’s privacy and security policies. For your reference, a Definitions section is included at the end of this Agreement.
- Privacy & Security; Disclosure
TCR Software’s privacy and security policies may be viewed at www.TCRSoftware.com or www.tcrsoftware.com/legal/privacy-and-security-policy/. TCR Software reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Users, when they initially log in, may be asked whether or not they wish to receive marketing and other non-critical Service-related communications from TCR Software from time to time. Users may opt out of receiving such communications at that time or at any subsequent time by changing their preference under their account settings. Please note that because the Service is a hosted, online application, TCR Software occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service. If you are a paying customer of the Service, you agree that TCR Software may disclose the fact that you are a paying customer and the edition of the Service that you are using.
- License Grant & Restrictions
TCR Software hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by TCR Software and its licensors.You may not access the Service if you are a direct competitor of TCR Software, except with TCR Software’s prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
- Your Responsibilities
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify TCR Software immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to TCR Software immediately and use reasonable efforts to stop immediately any improper or illegal copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another TCR Software user or provide false identity information to gain access to or use the Service.
- Account Information and Data
TCR Software does not own any data, information or material that you submit to the Service in the course of using the Service (“Customer Data”). You, not TCR Software, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and TCR Software shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), TCR Software will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. TCR Software reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and TCR Software shall have no obligation to maintain or forward any Customer Data.
- Intellectual Property Ownership
TCR Software alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the TCR Software Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement does not constitute a sale and does not convey to you any rights of ownership in or related to the Service, the TCR Software Technology or the Intellectual Property Rights owned or licensed by TCR Software. The TCR Software name, the TCR Software logo, and the product names associated with the Service are the trademarks of TCR Software and/or third parties, and no right or license is granted to you to use them.
- Third Party Interactions
During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. TCR Software and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. TCR Software does not endorse any sites on the Internet that are linked through the Service. TCR Software provides these links to you only as a matter of convenience, and in no event shall TCR Software or its licensors be responsible for any content, products, or other materials on or available from such sites. TCR Software provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.
- Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge becomes due and payable. The charges for the Service will be based on the specific configuration (including optional modules), length of your contract and the total number of concurrent User licenses. To view the current fee schedule, go to tcrsoftware.com/legal/current-fee-schedule/. All payment obligations for the contacted term are non-cancelable and all amounts paid are nonrefundable. You are responsible for paying for all User licenses ordered for the entire License Term, whether or not such User licenses are actively used and whether or not you decide to stop using the Service at any time prior to the end of your contracted term. You must provide TCR Software with valid credit card information as a condition to signing up for the Service. An authorized License Administrator may add licenses by executing an additional written Order Form or using the Online Order Center. Added licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting License Term (either Initial Term or renewal term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) licenses added in the middle of a billing month will be charged in full for that billing month. All pricing terms are confidential, and you agree not to disclose them to any third party. Early termination of the Service shall result in a charge in the amount of 50% of the balance owing on the current contract term to be billed to the credit card on file. Should you cancel within the first thirty (30) days of your contract, the credit card on file shall be billed for one (1) month of service.
- Data Storage
The maximum disk storage space provided to you at no additional charge is as specified at tcrsoftware.com/legal/data-storage/, and in the online user guide accessible via the Service. If the amount of disk storage required exceeds these limits, you will be charged the then-current storage fees. TCR Software will use reasonable efforts to notify you when the average storage used per license reaches approximately 90% of the maximum; however, any failure by TCR Software to so notify you shall not affect your responsibility for such additional storage charges. TCR Software reserves the right to establish or modify its general practices and limits relating to storage of files and Customer Data.
- Billing and Renewal
TCR Software bills on an annual or multi-year basis and collects monthly in advance for use of the Service. TCR Software will automatically renew and bill your credit card on a monthly basis or as otherwise mutually agreed upon. Fees for other services will be charged on an as-quoted basis. TCR Software’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on TCR Software’s income.You agree to provide TCR Software with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, TCR Software reserves the right to terminate your access to the Service in addition to any other legal remedies.If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
- Non-Payment and Suspension
In addition to any other rights granted to TCR Software herein, TCR Software reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for User licenses during any period of suspension. If you or TCR Software initiates termination of this Agreement, you will be obligated to pay any balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that TCR Software may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees, including any fees for use of the Service for the remainder of the current term.TCR Software reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that TCR Software has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
- Termination upon Expiration/Reduction in Number of Licenses
This Agreement commences on the Effective Date. The Initial Term will be as you elect during the online subscription process or as otherwise mutually agreed upon in an Order Form. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at TCR Software’s then current fees. Either party may terminate this Agreement or reduce the number of licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following term. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. In the event this Agreement is terminated (other than by reason of your breach), TCR Software will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. You agree and acknowledge that TCR Software has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination.
- Termination for Cause
Any breach of your payment obligations or unauthorized use of the TCR Software Technology or Service will be deemed a material breach of this Agreement. TCR Software, in its sole discretion, may terminate your password(s), account(s) or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, TCR Software may terminate a free account at any time in its sole discretion. You agree and acknowledge that TCR Software has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
- Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. TCR Software represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online TCR Software help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
- Mutual Indemnification
You shall indemnify and hold TCR Software, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that TCR Software (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release TCR Software of all liability and such settlement does not affect TCR Software’s business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.TCR Software shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by TCR Software of its representations or warranties; or (iii) a claim arising from breach of this Agreement by TCR Software; provided that you (a) promptly give written notice of the claim to TCR Software; (b) give TCR Software sole control of the defense and settlement of the claim (provided that TCR Software may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to TCR Software all available information and assistance; and (d) have not compromised or settled such claim. TCR Software shall have no indemnification obligation, and you shall indemnify TCR Software pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).
- Disclaimer of Warranties
TCR SOFTWARE AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. TCR SOFTWARE AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY TCR SOFTWARE AND ITS LICENSORS.
- Internet Delays
TCR SOFTWARE’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. TCR SOFTWARE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- Limitation of Liability
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
- Local Laws and Export Control
This site provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. The user of this site (“User”) acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States, Switzerland and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000TCR Software and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America, Switzerland and/or the European Union, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States, Swiss or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.
TCR Software may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in TCR Software’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in TCR Software’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to TCR Software (such notice shall be deemed given when received by TCR Software) at any time by any of the following: letter sent by confirmed facsimile to TCR Software at the following fax number 602-254-8991; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to TCR Software at the following addresses TCR Software, LLC, 4340 E. Indian School Road # 21-183, Phoenix, Arizona 85018.
- Modification to Terms
TCR Software reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
- Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of TCR Software but may be assigned without your consent by TCR Software to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control that results or would result in a direct competitor of TCR Software directly or indirectly owning or controlling 50% or more of any individual or entity licensed to use the Service hereunder shall entitle TCR Software to terminate this Agreement for cause immediately upon written notice.
This Agreement shall be governed by Arizona law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Maricopa County, Arizona. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and TCR Software as a result of this agreement or use of the Service. The failure of TCR Software to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by TCR Software in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and TCR Software and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
Questions or Additional Information:
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to info@TCRSoftware.com.