Effective Date: May 2022
This Agreement governs Trunc's cloud-based solutions (including this website) (“Cloud Services”) and software made available in connection with the Cloud Services (“Software”). Section 2 (Cloud Services) applies specifically to the Cloud Services, and Section 3 (Software) applies specifically to Software (including the Trunc application programming interfaces (“APIs”) and software development kits (“SDKs”)). Unless otherwise specified, all other Sections of this Agreement apply to both the Cloud Services and the Software (collectively, the “Service”).
2.1 Access to Cloud Services
Subject to your compliance with this Agreement (including, without limitation, all payment obligations), Trunc hereby grants to you a limited, revocable, non-exclusive, non-transferable, and non-sublicensable (except to Affiliates) right, to access and use the Cloud Services (“Cloud License”). If you are agreeing to this Agreement on behalf of an Entity, such Entity’s Affiliates may also access and use the Cloud Services provided that such Affiliates agree to be bound by the terms of this Agreement, and the Entity remain fully liable for such Affiliates’ actions and omissions in connection with this Agreement as if the Entity had performed such acts and omissions itself. “Affiliate” means any means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.
Unless otherwise expressly permitted in writing by Trunc, you will not and you have no right to:
(a) rent, lease, loan, export or sell access to the Cloud Services to any third party;
(b) interfere with, disrupt, alter, or modify the Cloud Services or any part thereof, or create an undue burden on the Cloud Services or the networks or services connected to the Cloud Services;
(c) utilize any framing techniques to enclose any Trunc trademark, logo, service mark, or other trade dress (“Trunc Marks”) or Materials (defined below) or use any meta tags or other “hidden text” utilizing the Trunc Marks or Materials without Trunc’s written consent
(d) introduce software or automated agents or scripts into the Cloud Services so as to produce multiple accounts, generate automated searches, requests or queries, or to strip or mine data from the Cloud Services;
(f) perform or publish any benchmark tests or analyses relating to the Cloud Services without Trunc’s written consent;
(g) cover or obscure any page or part of the Cloud Services via HTML/CSS, scripting, or any other means;
(h) process or collect personal or business credit card information on any web property that is receiving Free Services (as defined below); or
(i) use the Cloud Services to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103 without Trunc’s written consent.
You are responsible for maintaining the confidentiality of all usernames and passwords created by or assigned to you (“Credentials”), and are solely responsible for all activities that occur under such Credentials. You agree to notify Trunc promptly of any actual or suspected unauthorized use of any Credentials. Trunc reserves the right to terminate any Credentials that Trunc reasonably determines may have been accessed or used by an unauthorized third party, and will provide immediate notice of such to Customer. For your added security, we strongly encourage you to enable two-factor authentication in conjunction with all Credentials.
2.4 Subscription Terms, Renewals and Cancellations
All Cloud Services that are provided to you as Paid Services (each a, “Paid Cloud Service”) will be provided to you on a subscription basis for the length of term that you specified during the initial sign-up process (“Subscription Term”). All of your subscriptions to Paid Cloud Services will automatically renew for periods equal to your initial Subscription Term, and you will be charged at our then-current rates unless you cancel your subscription through the Cloud Services’ account dashboard prior to your next scheduled billing date.
2.5 Your Information
You must obtain all necessary rights, releases and permissions to provide Your Information to Trunc, and Your Information and its transfer must not violate any applicable local, state, federal and international laws and regulations (“Laws”) (including without limitation those relating to export control or electronic communications). Other than our security obligations under Section 6 (Security), we assume no responsibility or liability for Your Information, and you will be solely responsible for the consequences of using, disclosing, storing, transferring or transmitting Your Information.
Trunc may modify certain components of Your Information on or transmitted to or from your website to enhance your website’s performance or security or the functionality of the Cloud Services. For example, depending on the Trunc Services you select or the Apps that you enable, Trunc may: (i) intercept requests determined to be threats and take actions, such as, presenting them with a challenge page, dropping the request, presenting alternative content, redirecting and other similar measures; (ii) add cookies to your domain to track visitors, such as those who have successfully passed the CAPTCHA on a challenge page; (iii) add scripts to your pages to perform additional performance tracking; (iv) add firewall rules to your website; and (v) make other changes to increase the performance, security or analytic capabilities of your website. Trunc will make it clear whenever a feature will materially modify Your Information and, whenever possible, provide you a mechanism to allow you to disable the feature.
By transmitting Your Information to or through the Cloud Services, you represent and warrant that your Data, does not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right.
2.6 Free & Trial Services
We may offer free or trial versions of the Cloud Services (“Free Services”) from time to time. With respect to each such Free Service, we will make each such Free Service available to you free of charge until the earlier of (a) the end of the free trial period (if applicable) for which you registered to use the Free Service; (b) the start date of your Subscription Term for the Paid Services version of such Free Service; or (c) termination of the Free Service by Trunc in our sole discretion. We will have no liability for any harm or damage arising out of or in connection with any Free Services.
2.7 Acceptable Use
By using the Cloud Services you are agreeing, among other things, that you will not use the Cloud Services to (a) falsely imply any sponsorship or association with Trunc; (b) post, transmit, store or link to any files, materials, data, text, audio, video, images or other content that infringe on any person’s intellectual property rights or that are otherwise unlawful; or (c) engage in any activities that are illegal, including disseminating, promoting or facilitating child sexual abuse material or engaging in human trafficking.
3.1 License Grant
Subject to the terms and conditions of this Agreement, Trunc grants you a limited, revocable, non-exclusive, non-transferable and non-sublicensable (except to Affiliates) license to install and use the Software during your use of the applicable Cloud Services in accordance with this Agreement and any Trunc documentation (“License”). Your License will end upon the earlier of the termination of your use of the Cloud Services requiring such Software or the termination of this Agreement. Some Software may contain open source or third party software, which may have additional terms and restrictions regarding such software’s use.
You will not reverse engineer, decompile, disassemble or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how or other information from the binary code portions of the Software (collectively, “Reverse Engineering”) or permit or induce the foregoing. If however, directly applicable law prohibits enforcement of the foregoing, you may engage in Reverse Engineering solely for purposes of obtaining such information as is necessary to achieve interoperability of your own or third party software with the Software, and to the limited extent permitted by directly applicable law, but only if: (a) Reverse Engineering is strictly necessary to obtain such information; and (b) you have first requested such information from us and we fail to make such information available (for a fee or otherwise) under reasonable terms and conditions.
3.3 Software Modifications
Subject to the terms and conditions of this Agreement, for any elements of the Software provided to you in source code form you may modify such source code solely to the extent necessary to support your permitted use of the Software (collectively, “Modifications”). Unless expressly stated otherwise, you may not distribute your Modifications to any third party. Trunc has no support, warranty, indemnification or other obligation or liability with respect to your Modifications or their combination, interaction or use with our Cloud Services. You agree to indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against us by a third party relating to your Modifications.
4.1 Recurring Billing
In order to access those Services for which we require a fee (“Paid Services”) you will be required to provide Trunc with your credit card information (“Payment Method”). By providing a Payment Method you are authorizing us to charge your Payment Method on a monthly, annual basis, or pay-as-you-go basis, or as otherwise applicable for the fees associated with the Paid Services that you sign up for. Any Payment Method that you provide us must be valid, and kept current by you during the Subscription Term. By providing us with a Payment Method, you represent and warrant that you are authorized to use such Payment Method. Trunc will begin billing your Payment Method for the Paid Services on the day that you sign up for such Paid Services, regardless of whether you have fully configured the Paid Services as of that date.
4.2 Price Changes
We reserve the right to change the fees that we charge for the Service, at any time in our sole discretion, provided that we give you at least thirty (30) days’ prior notice of such changes. Unless otherwise specified in such notice to you, any changes to the subscription fees will take effect in the billing period immediately following our notice to you.
From time to time, we may make early stage or non-production Cloud Services and Software (“Beta Services”) available to you at no charge. You may access these Beta Services in your sole discretion. Beta Services are intended for evaluation purposes only, and may be subject to additional terms that will be presented to you at the time of sign-up. Trunc may, but is not obligated to, provide you with support for the Beta Services or correct any bugs, defects, or errors in the Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in our sole discretion and may never make them generally available. Notwithstanding Section 12, we will have no liability for any harm or damage arising out of or in connection with any Beta Services.
We implement security procedures to help protect your Data from security threats. However, you understand that your use of the Service necessarily involves transmission of Your Information over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Information that is lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Information will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.
You may not use the Service for any reason if you or any party that owns or controls you, are subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority. You may not use the Service to export or re-export any information or technology to any country, individual, or entity to which such export or re-export is restricted or prohibited.
You will lose your license to use the Service if you violate any provision of this Agreement. Trunc’s policy is to investigate violations of this Agreement. Additionally, we may at our sole discretion terminate your user account or suspend or terminate your access to the Service at any time, with or without notice for any reason or no reason at all. We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time through the Service’s account dashboard.
The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (the “Materials”) provided by Trunc are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Service are the property of Trunc or our third-party licensors. Except as expressly authorized by Trunc you may not make use of the Materials. Trunc reserves all rights to the Materials not granted expressly in this Agreement.
10.1 By Trunc
Trunc will defend you against any third party claim brought against you, to the extent that such claim is based on an allegation that a Paid Service, when used as authorized under this Agreement, infringes a United States or European Union patent or registered copyright (a “Claim”), and we will indemnify you against any damages and costs (including reasonable legal fees) finally awarded by a court of competent jurisdiction attributable to such a Claim or agreed to settlement by Trunc. If any portion of a Paid Service becomes, or in Trunc’s opinion is likely to become, the subject of an infringement claim, Trunc may, at Trunc’s option: (a) procure the right for you to continue using the Paid Service; (b) replace the Paid Service with non-infringing services which do not materially impair the functionality of the Paid Service; (c) modify the Paid Service so that it becomes non-infringing; or (d) terminate the Paid Service and refund any pre-paid subscription fees covering the remainder of the Subscription Term, and upon such termination, you will immediately cease all use of the Paid Service. Trunc will have no obligation under this Section 10 or otherwise with respect to any infringement claim based upon: (w) any use of a Paid Service not in accordance with this Agreement or the Documentation; any use of a Paid Service in combination with third party products or services not supplied by Trunc; or (z) any modification of a Paid Service by any person other than Trunc or its authorized agents. THIS SUBSECTION SETS FORTH TRUNC’S SOLE AND EXCLUSIVE OBLIGATIONS, AND YOUR SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
THE SERVICE ARE MADE AVAILABLE TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH THE EXPRESS UNDERSTANDING THAT THE TRUNC ENTITIES HAVE NO OBLIGATION TO MONITOR, CONTROL, OR VET USER CONTENT OR DATA. AS SUCH, YOUR USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. THE TRUNC ENTITIES MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, ACCURACY, OR RELIABILITY OF THE SERVICES, ITS SAFETY OR SECURITY, OR THE SERVICES CONTENT. ACCORDINGLY, THE TRUNC ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE SERVICE’S INOPERABILITY, UNAVAILABILITY OR SECURITY VULNERABILITIES.
THE TRUNC ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
IN NO EVENT WILL THE TRUNC ENTITIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE TRUNC ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE TRUNC ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICES (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES) OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE AMOUNTS YOU HAVE PAID TO TRUNC TO ACCESS AND USE THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
This Agreement shall be governed by the laws in force in the State of Delaware. The offer and acceptance of this contract is deemed to have occurred in the State of Delaware. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Trunc agree to submit to the personal and exclusive jurisdiction of the state and federal courts located in the state of Delaware.
Trunc reserves the right to make modifications to this Agreement at any time. If a revision materially alters your rights we will use reasonable efforts to contact you, including sending a notification to the e-mail address(es) associated with your account. In some instances, such as with Free Services, you may be required to indicate your consent to the revised terms in order to continue accessing the Service. Unless otherwise specified, any modifications to this Agreement will take effect at the start of Subscription Term following the notice. If you do not agree with the revised terms, your sole and exclusive remedy will be not to renew your Subscription.
The authoritative version of Trunc's Self-Serve Subscription Agreement is available at: www.trunc.org/terms. While translations of the Subscription Agreement may be provided in multiple languages for your convenience, the English language version hosted at the link above is binding for all users of the Service.
This Agreement constitutes the entire and exclusive understanding and agreement between you and Trunc regarding your use of and access to the Service. You may not assign or transfer this Agreement or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement at any time without notice. The failure to require performance of any provision will not affect our right to require performance at any time thereafter, nor will a waiver of any breach or default of this Agreement or any provision of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in this Subscription Agreement is for convenience only and will not have any impact on the interpretation of particular provisions. In the event that any part of this Subscription Agreement is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible and the remaining parts will remain in full force and effect. Upon termination of this Agreement, any provision that by its nature or express terms should survive will survive such termination or expiration, including, but not limited to, Sections 2.5.1 and Sections 9 through 19.
In the interest of resolving disputes between you and Trunc in the most expedient and cost effective manner, you and Trunc agree that any and all disputes arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND TRUNC ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Notwithstanding Subsection 17.1, we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
Any arbitration between you and Trunc will be governed by the Commercial Arbitration Rules and Mediation Procedures (“AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879.
17.4 Notice; Process
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Trunc’s address for Notice is: NOC.org, Inc., 220 Adams Drive, Suite 280 #304, Weatherford, Texas 76086. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Trunc may commence an arbitration proceeding.
Any arbitration hearings will take place at a location to be agreed upon in Weatherford, Texas provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Trunc for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
17.6 No Class Actions
YOU AND TRUNC AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Trunc agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
In the event that Trunc makes any future change to this arbitration provision (other than a change to Trunc’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Trunc’s address for Notice, in which case your account with Trunc will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
If Subsection 17.1 is found to be unenforceable or if the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 17 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 13 will govern any action arising out of or related to this Agreement.
The Trunc Service is offered by NOC.org, Inc., located at 220 Adams Drive, Suite 280 #304, Weatherford, Texas 76066. You may contact us by sending correspondence to the foregoing address or by emailing us at email@example.com.
You agree to allow us to identify you as a customer, to use your website’s name in connection with proposals to prospective customers, to hyperlink to your website’s home page, to display your logo on the Trunc web site, and to otherwise refer to you in print or electronic form for marketing or reference purposes. If you do not wish for Trunc to use your name or logo in any of the preceding ways, please contact firstname.lastname@example.org.