TRAITWARE WORDPRESS CONSOLE
ACCEPTANCE– READ CAREFULLY: BY CREATING AN ACCOUNT OR BY UTILIZING THE TRAITWARE CONSOLE YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
Welcome to the Traitware Console Service (including the Traitware WordPress Plug-In). “You” refers to any individual who creates an account with the Service (as defined below), and, if You are using the Service on behalf of an Entity, then “You” refers to such 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 Service (whether by subscription, 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 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 your account. If you continue to use the Service after we have given such notice, then you will be deemed to have accepted such modifications.
Description of Service
“Service” means an on-line management system which permits You and Your Authorized Users to manage access to a single WordPress website for each account You may have with Us, as further described in the Specifications. (Your website and its subsidiary pages are called the “Website”.) End Users accessing Your Website must do so through a separate tool running on mobile devices which provides multi-factor authentication (the “Traitware Mobile App”). We grant to You and each user of the Service that you register with the Traitware Console (each such user being an “Authorized User”) a worldwide, non-exclusive, non-sublicensable and non-transferable license to use the Service to authenticate access to Your Website.
In order to use the Service, You must have a valid account. To acquire an account for the Service, You must provide Traitware with Your electronic mail address and other information about You (“Registration Data”). You agree to: (a) provide true, accurate, current and complete information about Yourself as prompted by the Service’s registration form and the credit card payment form, and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If You provide any information that is untrue, inaccurate, not current or incomplete, or Traitware has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Traitware has the right to suspend or terminate Your Account and refuse any and all current or future use of the Service.
You understand that End-Users of the Traitware Console and the Traitware Mobile App may permit Traitware to access the location and camera services on their mobile device. Authorized Users and End Users may be required to permit access to additional services or user profiles on the Traitware Console and the Traitware Mobile App if You wish to increase the level of security for authentications.
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 Service is prohibited or to the extent the offering, sale or provision of the Service conflicts with any applicable law, rule or regulation, Your right to access the Service is automatically revoked.
If You are using the Service for a free trial period, such period commences when the first website domain is added to Your account. A website that has participated in a free trial period is not eligible to participate in additional free trials.
U.S Government Restricted Rights
The 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 Service, including the Traitware Console, 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.
We will host, manage, operate and maintain the Traitware Console in substantial conformity with the Specifications. We will use commercially reasonable efforts to provide continuous access 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.
For most accounts We provide a maximum number of successful Logins per month or year. We set this maximum number at a level which We believe will accommodate most users yet protect Us from unexpected demands on our servers. If You are likely to exceed this number, You may need to purchase rights to an increased number of permissible logins for such period. You may do so on Our website www.traitware.com. If You (and Your Authorized Users) exceed the maximum number of successful Logins in the applicable period, We may suspend access to Your account.
We will operate, manage and maintain the Service and provide support for the Traitware Console including maintenance, upgrades, corrections and repairs. In performing these activities We shall take such action as We deem necessary or appropriate to provide the optimum balance of customer security and ease of use.
We reserve the right at any time and from time to time to modify or discontinue the 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 Service; provided, however, that if we suspend or terminate the Service for more than one month, You shall be entitled to a pro-rata refund of the Fees you have paid.
We may from time to time in our discretion engage third parties to perform the Service, or portions of it (each such third party being a “Subcontractor“).
At our discretion, the Traitware Console may be located either in or outside of the United States, regardless of where You are located. Further, the Service, including the Traitware Console, 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 Console by any Person by or through the Your Systems, including any information, instructions or materials provided by You or any Authorized User regarding the Traitware Console.
You have and will retain sole responsibility for:
- registration of Authorized Users and End Users of Traitware Mobile Apps,
- all access and use of the Traitware Console by Authorized Users, whether directly or through the Traitware Plug-In, including all information, instructions and materials entered into the console by or on behalf of You or any Authorized User, and
- the security and use of Your and Your Authorized Users’ Access Credentials, including the security of all mobile devices containing Mobile Apps registered with your account.
If Traitware is required by applicable Law to disclose any of Your Data or Access Credentials then, if permitted by such Law, We shall: (a) promptly notify You by email so that You can seek a protective order or other remedy and (b) provide reasonable assistance to You in opposing such disclosure, seeking a protective order, or otherwise limiting disclosure. 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:
- Permit any Person other than Authorized Users to use or access the Traitware Console, the Traitware Plug-In or the Service in any manner, including on the internet or through any time-sharing, service bureau, software as a service, cloud based application or other technology or service; or
- Reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code or object code of the Traitware Console, the Traitware Plug-in in whole or in part, or (ii) prepare derivative works of the Traitware Console or the Traitware Materials.
Additional Prohibited Acts
You shall not:
- Bypass or breach any security device or protection used by the Traitware Console or Traitware Materials or access or use the Traitware Console or Traitware Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
- Input, upload, transmit or otherwise provide to or through the Traitware Console or Traitware Plug-In, any information or materials that are unlawful, injurious, or contain, transmit or activate any Harmful Code;
- Access or use the Traitware Console or Traitware Materials 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;
- Access or use the Traitware Console or Traitware Materials for purposes of competitive analysis of the Traitware Console or Traitware Materials, 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
- Otherwise access or use the Traitware Console or Traitware Materials beyond the scope of the authorization granted under this Section.
You acknowledge that the Traitware Console is not designed to provided controlled access to the following categories of information (each of the following being “Prohibited Data):
Websites containing data that is classified and or used on the U.S. Munitions list, including software and technical data;
Articles, technical information and related technical data designated as defense articles by the President pursuant to Section 38 of the Arms Export Control Act (22 U.S.C. 2778), and
Websites containing ITAR (International Traffic in Arms Regulations) related data.
You shall not, and shall not permit any Authorized User to use the Traitware Console to authorize or control access to a website containing Prohibited Data. You are solely responsible for reviewing all of the content on Your Website and shall ensure that none of such content constitutes or contains any Prohibited Data.
Your Obligation to Notify and take corrective action
You agree that if You become aware of any actual or threatened activity prohibited by this Agreement You will notify Traitware immediately. You further agree to take all reasonable and lawful measures within Your control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Traitware Console and Traitware Materials and permanently erasing or destroying any data on their systems to which any of them have gained unauthorized access).
We employ security measures in accordance with Our data privacy and security policy as amended from time to time (Our “
“). Portions of the Security Policy are available upon request to Traitware. Subcontractors who host the Traitware Console may have their own security policies, which are available to You upon request.
We maintain a data breach plan in accordance with the criteria set forth in Our Privacy and Security Policy and shall implement the procedures required under such data breach plan on the occurrence of a breach.
Fees; Payment Terms
Fees. You shall pay to us the fees set forth on Traitware’s price list, found at www.traitware.com (“Fees”). We will accept payment only by means of credit and debit cards. You will be charged the Fees even if You never use the Service. We may change the Fees We charge for the Service at any time upon 30 days prior notice to You.
Monthly Payment. If We offer, and You select, a monthly payment option You must promptly update all billing data to keep Your Account current, complete and accurate (such as a change in billing address, credit card number or credit card expiration date) and You must promptly notify us if Your credit or debit card is changed (for example, for loss or theft) or if You become aware of a potential breach of security, such as the unauthorized disclosure or use of Your name or password. The credit card that You provide as part of the billing data will be automatically billed each month on the same day that you first paid for the Service (which may be upon the expiration of a Free Trial) or on the first Business Day thereafter. You agree that Traitware may charge Your credit card all amounts due and owing for Your Account on that monthly basis or upon cancellation (see “Termination” below).
Annual Fee. If We offer and You select an annual Fee, the credit card that You provide as part of the Billing Data will be automatically and immediately billed on the later of the day You sign up for the Service or the expiration of Your Free Trial (if any). You agree that Traitware may charge to Your credit card all amounts due and owing for Your Account on a yearly basis unless you cancel the account (see the “Termination” below).
Extra Login Charges. Some purchase options place a limit on the number of successful Logins You and Your Authorized Users may effect on a monthly or annual basis. We will use reasonable efforts to notify you if you are likely to exceed such number during the relevant period. We will offer packets of additional numbers of successful Logins, as set forth at www.traitware.com.
Total monthly users allowed. Current pricing plans allow for 100 users per $3 month spent. Example is for a standard plan at $59 year would allow for 164 users across any of the sites under that plan per month.
Collection. You agree that in the event We are unable to collect the fees owed to Us for Your account, We may take such additional steps We deem necessary to collect such fees from You and that You will be responsible for all costs and expenses incurred by Us in connection with such collection activity, including collection fees, court costs and attorneys’ fees.
Taxes. All Fees are exclusive of Taxes and similar assessments. We will collect and pay all such Taxes that We reasonably believe that We are required to collect and pay to any applicable taxing authority. Our failure to collect any such Taxes for any billing period does not mean that We may not collect such Taxes for future billing periods.
Intellectual Property Rights.
You acknowledge that Traitware owns all right, title and interest, including all Intellectual Property Rights in the Service, the Traitware Console, and the Traitware Materials, and that Traitware has patents pending on the Service. You shall not acquire any Intellectual Property rights with respect to the Traitware Console 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 Service. Neither shall you remove, delete, alter or obscure any Terms of Service, warranties or disclaimers, from any Traitware Console 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 Services and maintain the Traitware Console, 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 Service is at Your sole risk. You will be solely responsible for any loss or damage to You resulting from the use of the Service. The entire risk arising out of use, security or performance of the 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 CONSOLE, TRAITWARE MATERIALS, OR ANY OTHER USE OF 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.
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 arise out of or relate to any of your representations, warranties, 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 CONSOLE (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 SUM OF ALL FEES PAID BY YOU UNDER THIS AGREEMENT FOR THE PRIOR 12 MONTHS. IF TRAITWARE’S LIABILITY ARISES OUT OF YOUR USE OF THE SERVICE DURING A FREE TRIAL, TRAITWARE’S AGGREGATE LIABILITY SHALL NOT EXCEED $50.
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.
You acknowledge that the 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 Service or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
The Term of this Agreement is for one year. At the end of the year a new fee will be due and payable and You may need to accept a new agreement. If You are not required to accept a new agreement, then this Agreement will govern any additional period for which You have paid such new fee.
Traitware may, directly or indirectly, suspend, terminate or otherwise deny access to or use of all or any part of the Traitware Console or Traitware Materials, by You or any Authorized User, if:
(a) You fail to pay any Fees charged for the Traitware Console or any Excess Logins and such failure continues more than 30 days past the date such Fees were due;
(b) Traitware receives a judicial or other governmental demand or order, subpoena or request from law enforcement that requires Traitware to do so; or
(c) Traitware believes, in its good faith and sole discretion, that: (i) You or any Authorized User has failed to comply with, any material term of this Agreement, or accessed or used the Traitware Console 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 Authorized User is, 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:
- all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
- You shall immediately cease all use of any Traitware Console or Traitware Materials and permanently erase all Traitware Materials and from all systems You directly or indirectly control;
- 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;
- Traitware may disable Your access and the access of your Authorized User to the Service, the Traitware Console and Traitware Materials.
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.
All notices to Traitware must be in writing and addressed as follows:
104 New Mohawk Road
Nevada City, California
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 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.
You acknowledge and agree that a breach or threatened breach of any of Your obligations under this Agreement would cause Traitware irreparable harm for which money alone would not be an adequate remedy. You agree that, in the event of such breach or threatened breach, Traitware will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court. In any such proceeding Traitware will not be required to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that Traitware may have at law or in equity.
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 Traitware Console.
“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 Console or Traitware Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“End User” means an authorized user of the Traitware Mobile App.
“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 or any Authorized User from accessing or using the Traitware Console or Traitware Systems 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 Traitware Console 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.
“Permitted Use” means any use of the Traitware Console by an Authorized User for the benefit of You solely in or for Your internal business operations.
“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 Console 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.
“Taxes” means all sales, use and excise taxes, VAT and any other similar taxes, duties and charges of any kind on the amounts paid or Services performed under this Agreement, not including taxes on Traitware’s net income.
“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.
“Traitware Materials” means the Traitware Console, Traitware Plug-In, 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 Console, but do not include Third Party Materials or Your Data.
“Traitware Console” means the Traitware software application or applications (including the Tradeware WordPress Plug-in) and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Traitware provides remote access to and use of as part of the Traitware Console.
“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 Console that are not proprietary to Traitware.
“Specifications” mean the description of the 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 Console or Traitware Plug-In, including all data used for Authorization or Login credentials.
“Your Systems” means Your information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by You or through the use of third-party Traitware Console.
February 2nd, 2018