PLEASE READ THIS CAREFULLY: BY CREATING AN ACCOUNT OR BY UTILIZING THE TraitWare MOBILE APP YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
Welcome to the TraitWare Mobile App and the TW Service. ” You” means you – the individual who has downloaded the TraitWare Mobile App to use the TW Service (as “TW Service” is defined below). If You are using the TW Service on behalf of an Entity, then “You” also refers to such an entity and You represent that you are authorized to agree to these Terms of Service on behalf of such entity. These Terms of Service are a binding legal agreement for use of the TraitWare Mobile App and the TW Service (whether on a trial basis or otherwise) between You and TraitWare, Inc., a Delaware Corporation (“ TraitWare”). If You do not agree with these terms, do not use this TW Service.
TraitWare may also be referred to herein as “ We” or “ Our” or words of similar import. Please note that additional defined terms appear at the end of this document.
TraitWare reserves the right to modify this Agreement from time to time. We will give You notice of any change when you next log in to the TW Service. If you continue to use the TW Service after we have given such notice, then you will be deemed to have accepted such modifications.
Description of Service
“TW Service” means the TraitWare Enabled Service, an online access management system which permits You access to one or more computers, devices or websites. (Each such computer, device or website being a “ Location”.) We grant to You a worldwide, non-exclusive, non-sublicensable and non-transferable license to use the TW Service to authenticate access to such Location. Your access to the TW Service is through the TraitWare Mobile App installed on one or more of your mobile devices (the “ TraitWare Mobile App”).
Registration
In order to use the TW Service, the Owner of a Location must have registered You and Your mobile device. The Owner may limit your access to portions of the Location or deregister you at any time and revoke your access to the Location in its entirety.
To use the TraitWare Mobile App and the TW Service You must permit TraitWare to access the information about your mobile device environment including device manufacturer, model numbers, operating systems. You must also allow TraitWare to access camera services on Your mobile devices. At the option of the Location Owner, You may be required to permit access to additional information or user profiles on Your mobile device including but not limited to location services and aggregate information regarding Your contacts, phone numbers and song library. This information is used to increase the level of security provided by the TW Service. (TraitWare and the Location Owner collect only anonymized information regarding individual contacts, phone numbers or songs from your device.)
You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to You. Where these Terms of Service or use of the TW Service is prohibited or to the extent the offering, sale or provision of the TW Service conflicts with any applicable law, rule or regulation, Your right to access the TW Service is automatically revoked.
U.S Government Restricted Rights
The TW Service is deemed to be commercial computer software for purposes of FAR 12.212 and DFAR 227-7202. Any use, access, modification, reproduction release, performance, display or disclosure of the TW Service, including the TraitWare Mobile App, by the U.S. Government shall be solely in accordance with the terms of this Agreement and all provisions of this Agreement shall apply to the U.S. Government. TraitWare Console
We will use commercially reasonable efforts to provide continuous access to the TW Service except for:
• Scheduled Downtime;
• Downtime or degradation due to a Force Majeure Event;
• Interruptions due to misuse of the TraitWare Console by You or any Authorized User; and
• Any other circumstances beyond TraitWare’s reasonable control. We provide the Owner of the Location a maximum number of successful Logins by users per month or year. If You (and other users accessing the Location) collectively exceed the maximum number of successful Logins in the applicable period, Your access to the Location may be cancelled or suspended.
TraitWare’s Responsibilities
We reserve the right at any time and from time to time to modify or discontinue the TraitWare Mobile App and the TW Service (or any part thereof) temporarily or permanently, with or without notice at any time. You agree that We shall not be liable to You or to any third party for any such modification, suspension, termination or discontinuance of the TW Service.
We may from time to time at our discretion engage third parties to perform the TW Service, or portions of it (each such third party being a ” Subcontractor“).
At our discretion, the equipment used to provide the TW Service may be located either in or outside of the United States, regardless of where You are located. Further, the TW Service may be operated on hardware and at locations owned, maintained and managed by one or more of our third-party suppliers or Subcontractors.
Actions Which are Your Responsibility
You shall have sole responsibility for all access to and use of the TraitWare Mobile App by any Person by or through the Your mobile device, including any information, instructions or materials provided by You. You have and will retain sole responsibility for the security and use of any authentication protocol you have established for access to the Location, including the security of all mobile devices containing Mobile Apps registered with your account.
Compelled Disclosures
If TraitWare is required by applicable Law to disclose any of Your Data or Access Credentials then, if permitted by such Law, We shall promptly notify You by email so that You can seek a protective order or other remedy. We shall disclose only that portion of Your Data that We are legally required to disclose and shall attempt to obtain assurances from the applicable court or other presiding authority that Your User Data or Access Credentials will be afforded confidential treatment.
Restrictions on Use
You shall not reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code or object code of the TraitWare Mobile App, in whole or in part, or (ii) prepare derivative works of the TraitWare Mobile App or the TraitWare Materials.
Additional Prohibited Acts
You shall not:
1. access or use the TraitWare Mobile App in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party or that violates any applicable Law;
2. access or use the TraitWare Mobile App for purposes of competitive analysis of the TW Service, the development, provision or use of a competing software service or product or any other purpose that is to the TraitWare’s detriment or commercial disadvantage; or
3. Otherwise access or use the TraitWare Console or TraitWare Materials beyond the scope of the authorization granted under this Section.
Intellectual Property Rights
You acknowledge that TraitWare owns all right, title and interest, including all Intellectual Property Rights in the TW Service, the TraitWare Mobile App, and the TraitWare Materials, and that TraitWare has patents pending on the TW Service. You shall not acquire any Intellectual Property rights with respect to the TraitWare Mobile App or TraitWare Materials (including Third-Party Materials) except for the limited authorization set forth in the paragraphs “Description of Service”.
You will not remove, deface or obscure any of TraitWare’s or its suppliers’ copyright or trademark notices and/or legends or other proprietary notices on, incorporated therein, or associated with the TW Service. Neither shall you remove, delete, alter or obscure any Terms of Service, warranties or disclaimers, from any TraitWare Mobile App or TraitWare Materials, including any copy thereof;
As between You and TraitWare, You are and will remain the sole and exclusive owner of all right, title and interest in and to all Your Data. You hereby irrevocably grant to TraitWare and its Subcontractors all such rights and permissions in or relating to Your Data as are necessary or useful to perform the TW Services and maintain the TraitWare Mobile App, including those rights specified in and the paragraph on the “Effect of Termination.” You also irrevocably grant TraitWare the right to use any Resultant Data, both during the Term of this Agreement and thereafter.
No TraitWare Representations or Warranties.
Use of the TW Service is at Your sole risk. You will be solely responsible for any loss or damage to You resulting from the use of the TW Service. The entire risk arising out of use, security or performance of the TW Service remains with You. No oral or written information or advice given by TraitWare, its authorized representatives or its Resellers shall create a warranty or in any way increase the scope of TraitWare’s obligations.
YOU ACKNOWLEDGE THAT THE SERVICE IS PROVIDED “AS IS”. TraitWare DOES NOT REPRESENT OR WARRANT THAT THE TraitWare MOBILE APP OR THE SERVICE WILL MEET YOUR REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, OR BE SECURE, FREE OF HARMFUL CODE OR ERROR FREE.
TraitWare PROVIDES NO WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON INFRINGEMENT.
Indemnification
You shall indemnify, defend and hold harmless TraitWare and its Subcontractors and each of its and their respective officers, directors, employees (each an “Indemnitee”) from and against any and all Losses incurred in connection with any action or
proceeding by a third party that arises out of or related to any of your covenants or obligations under this Agreement.
Each Indemnitee shall promptly notify You in writing of any action for it believes it is entitled to be indemnified. It shall cooperate with You at Your sole cost and expense. You shall immediately take control of the defense and investigation of any such action and shall employ counsel reasonably acceptable to the Indemnity to handle and defend the same, at Your sole cost and expense. The Indemnitee’s failure to perform its obligations under this paragraph will not relieve You of these obligations except to the extent that You can demonstrate that You have been prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
Limitations of Liability
IN NO EVENT WILL TraitWare, ITS SUPPLIERS AND ITS SUBCONTRACTORS BE LIABLE TO YOU FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE TraitWare APP OR TW SERVICE (c) LOSS, DAMAGE OR CORRUPTION OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER TraitWare WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
THE COLLECTIVE AGGREGATE LIABILITY OF TraitWare, ITS SERVICE PROVIDERS, SUPPLIERS AND SUBCONTRACTORS WITH RESPECT TO THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, SHALL NOT EXCEED THE LOWER OF I) THE SUM OF ALL FEES PAID BY THE OWNER TO TraitWare FOR THE PRIOR 12 MONTHS DIVIDED BY THE NUMBER OF USERS GRANTED ACCESS TO THE LOCATION, II) THE AMOUNT WHICH YOU PAID TO TraitWare TO DOWNLOAD THE TRATIWARE MOBILE APP, OR III) $20.
Force Majeure
In no event will TraitWare be liable or responsible to You for any failure or delay in fulfilling or performing any term of this Agreement, to the extent such failure or delay is caused by any circumstances beyond TraitWare’s reasonable control (a ” Force Majeure Event“). Force Majeure Events include Acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades, national or regional emergency, strikes, labor stoppages or slowdowns or other
industrial disturbances, catastrophic or unusual internet delays, denial of service attacks and other “hacker” activity, passage of Law or any action taken by a governmental or public authority, or national or regional shortage of adequate power or telecommunications or transportation.
Export Restrictions
You acknowledge that the TW Service, or portion thereof may be subject to the export control laws of the United States. You will not export, re-export, divert, transfer or disclose any portion of the TW Service or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
Term
The Term of this Agreement is indefinite
Termination
TraitWare may, directly or indirectly, suspend, terminate or otherwise deny access to or use of all or any part of the TW Services by You or any Authorized User, if: 1. TraitWare receives a judicial or other governmental demand or order, subpoena or request from law enforcement that requires TraitWare to do so; or 2. (c) TraitWare believes, in its good faith and sole discretion, that: (i) You or the Owner of the Location, any material term of this Agreement, or accessed or used the TraitWare Mobile App beyond the scope of the rights granted or in any manner that does not comply with any material instruction or requirement of the Specifications; or (ii) You or any Owner of the Website has been, or is likely to be involved in any fraudulent, misleading or subversive or otherwise unlawful activities.
Effect of Termination
Upon any expiration or termination of this Agreement:
1. all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
2. You shall immediately cease all use of the TraitWare Mobile App and delete such app from your Mobile device;
3. notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control TraitWare may retain Your Data in its backups, archives and disaster recovery systems until such time as Your Data is deleted in the ordinary course; and all such information and materials will remain subject to all confidentiality, security and other applicable requirements of this Agreement;
4. TraitWare may disable Your access to the TW Service.
The rights or obligations of the parties in this Agreement that, by their nature, should survive termination or expiration of this Agreement, will survive any expiration or
termination of this Agreement, including Intellectual Property, Indemnification and Limitation on Liability.
Miscellaneous
All notices to TraitWare must be in writing and addressed as follows:
6225 Neil Rd, Reno, NV 89511-1136
Attention: Herbert W. Spencer, III CEO
Notices to You may be given by email, by regular mail to any physical address which You have provided, or by notice posted to Your account.
This Agreement, together with any documents incorporated by reference, constitutes the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior understandings, agreements, representations and warranties, both written and oral. If any term of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term of this Agreement.
This Agreement shall be governed in all respects by the laws of the United States of America and the State of California, as such laws are applied to agreements entered into and to be performed entirely within California between California residents without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any other jurisdiction.
Both You and We agree that Sacramento County is an appropriate venue for the resolution of any lawsuit between us or any proceeding for equitable relief such as a temporary restraining order or injunction. Each of us irrevocably consents to the exclusive personal jurisdiction of the federal and state courts located in Sacramento County, California, for any matter arising out of or relating to this Agreement. However, either of us may seek to enforce any order or any judgment of a California court in any other appropriate jurisdiction.
Additional Defined Terms
“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Location.
“Documentation” means any manuals, instructions or other documents or materials that the TraitWare provides or makes available to You in any form or medium and which describe the functionality, components, features or requirements of the TraitWare Mobile App, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“Entity” means a corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other organization.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing, or (b) prevent You from accessing or using the TraitWare Mobile App as intended by this Agreement. Harmful Code does not include any TraitWare Disabling Device.
“Intellectual Property Rights” means any and all patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world whether granted, applied for, or which come into existence following the Effective Date of this agreement.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
“Login” means access to the Location using the Access Credentials.
“Losses” means any and all losses, damages, or other liabilities, awarded in a final judgment, including any interest, awards, penalties, fines, costs or expenses of whatever kind, as well as reasonable attorneys’ fees.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity. “Resultant Data” means information, data and other content that is derived by or through the TraitWare Mobile App from Your Account, Your Data or the authentication of You, Your Authorized Users, or End-Users and is sufficiently different from such Your Data that such Your Data cannot be reverse engineered or otherwise identified from the inspection or analysis of such information, data or content.
“TraitWare Disabling Device” means any software or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by TraitWare or its Subcontractor to disable Your or any Authorized User’s access to or use of the TraitWare Mobile App.
“TraitWare Materials” means the TraitWare Mobile App, Specifications, and documentation together with any and all other information, data, documents, materials, works and other content, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided to You. For the avoidance of doubt, TraitWare Materials include Resultant
Data and any information, data or other content derived from TraitWare’s monitoring of Your access to or use of the TraitWare Mobile App, but do not include Third Party Materials or Your Data.
“Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the TraitWare Mobile App that are not proprietary to TraitWare.
“TraitWare Disabling Device” means any software or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by TraitWare or its Subcontractor to disable Your or any Authorized User’s access to or use of the TraitWare Console.
“Specifications” mean the description of the TW Service provided in the TraitWare Materials.
“Your Data” means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from You or an Authorized User by or through the TraitWare Mobile App, including all data used for Authentication or Login credentials.