Terms and Conditions
Here's some important stuff you should know about our relationship.PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS OF USE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEBSITE AND TO THE PRODUCTS. YOU AGREE TO CHECK FOR UPDATES TO THESE TERMS AND CONDITIONS OF USE. BY USING THIS WEBSITE OR THE PRODUCTS, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS OF USE, THEN YOU MAY NOT USE THIS WEBSITE OR THE PRODUCTS.
Requirements to use LinkTrustNO PORNOGRAPHIC, ADULT ORIENTED, GAMBLING or SEXUALLY EXPLICIT SITES OR CONTENT ALLOWED. Customer may contact LinkTrust to arrange for LinkTrust to review questionable campaigns for compliance prior to campaign launch. Campaigns will be deemed acceptable to LinkTrust on a case by case basis. LinkTrust retains the right to from time to time audit the campaigns and material Customers are distributing through LinkTrust. If reviewed material is deemed to not meet the standards set forth in this agreement, LinkTrust will request the Customer make changes to bring the campaign and material into compliance. If Customer fails to make the necessary changes LinkTrust is authorized to remove the campaign, materials or terminate this agreement immediately, without liability to LinkTrust. Please see our Corporate Social Responsibility policy.
Customer shall comply with the CAN-SPAM Act or other applicable International SPAM laws for all campaigns, if Customer’s Affiliates are sending emails, then the Affiliate must comply with the CAN-SPAM Act and other applicable International SPAM laws when sending such emails with LinkTrust code in the email. If partner or Affiliates are not in compliance as determined by LinkTrust, LinkTrust reserves the right to terminate this agreement immediately, without liability to LinkTrust. LinkTrust does not permit non-compliance with the Federal CAN-SPAM Act or other international laws governing SPAM. If Customer’s domain becomes ‘blacklisted’ and adversely affects LinkTrust and LinkTrust’s ability to serve Customer, LinkTrust will take appropriate steps to assist the Customer in finding a resolution. If the SPAM agency will not remove the Customer’s domain and if a resolution cannot be found by the parties, Customer domain may be required to be removed from LinkTrust’s IP space. If Customer does not remove itself from LinkTrust’s IP space, then LinkTrust reserves the right to terminate the Agreement (and Customer’s use of the Site and/or the Services) immediately, without liability to LinkTrust.
Software and ServicesRent, Lease, or Transfer. Customer shall not and shall not permit any third party to rent, lease, transfer or otherwise utilize rights to the Service or the Software, other than Affiliates as contemplated by these Terms and Conditions. Terms and Conditions.
Appropriate Accounts: Customer shall not and shall not permit any third party to use a single Partner Center account for multiple business entities, unless specifically authorized by LinkTrust in writing. As a LinkTrust customer, you may not sell, assign, or transfer your service or your rights or obligations hereunder without the prior written consent of LinkTrust.
Reverse Engineering: Customer shall not and shall not permit any third party to translate, reverse engineer, decompile, recompile, update, modify, or create derivative works based on the Service or the Software or any part of the Software or merge the Software into any other software.
Ownership of Materials: All patents, copyrights, circuit layouts, mask works, trade secrets, and other proprietary rights in or related to the Software are and will remain the exclusive property of LinkTrust, whether or not specifically recognized or perfected under the laws of the jurisdiction in which the Software is used or licensed. Customer will not take any action that jeopardizes LinkTrust’s proprietary rights or acquire any right in the Software or the Confidential Information, as defined herein. Unless otherwise agreed on a case-by-case basis, LinkTrust will own all rights in any copy, translation, modification, adaptation, or derivation of the Software or other items of Confidential Information, including any improvement or development thereof. Customer will obtain, at LinkTrust’s request, the execution of any instrument that may be appropriate to assign these rights to LinkTrust or perfect these rights in LinkTrust’s name.
Data Storage and OwnershipData Storage. The Software and Customer Data will be hosted on LinkTrust servers, unless otherwise agreed by the parties. LinkTrust does not warrant that Customer use of the Services will be error-free or secure. In addition, the security mechanisms implemented by LinkTrust have inherent limitations that are out of the control of LinkTrust, and Customer must determine whether the Services sufficiently meet Customer’s requirements. While LinkTrust shall make every reasonable effort to protect and backup Customer and LinkTrust Data on a regular basis, other than pursuant to the confidentiality obligations with respect to Customer’s Confidential Information under the Agreement, LinkTrust is not responsible for Customer Data residing on LinkTrust servers. Customer is responsible for making and keeping current copies of Affiliates and their related information. Customer is responsible for all use of Affiliates account and confidentiality of Affiliate’s passwords and information.
Customer Data: “Customer Data” consists of the following: (i) information input into the LinkTrust interface by Customer or Affiliate, and (ii) user behavior on Customer’s web site captured by the LinkTrust Service system on the Customer’s behalf. LinkTrust agrees that Customer will own all Customer Data. LinkTrust shall not use the Customer Data except directly in furtherance of the purposes of this Agreement. LinkTrust shall not disclose the Customer Data to any third party unless directed by Customer, unless (a) such disclosure is made by LinkTrust in response to a court order, and provided that LinkTrust has given Customer reasonable notice of such court order, or (b) is in aggregate non-personally identifiable data. Upon Customer’s request, Customer is entitled to, and LinkTrust will provide Customer, at Customer’s expense, all Customer Data, in a format reasonably determined by LinkTrust.
LinkTrust’s Data: Customer Data specifically does not include any information and/or tracking methodologies generated by the LinkTrust system, regardless of whether or not the information or tracking methodology was generated as a result of Customer’s use of the LinkTrust system. All data that is not Customer Data belongs to LinkTrust (collectively “LinkTrust’s Data”). Customer agrees that LinkTrust owns all LinkTrust’s Data. Customer shall have a non-exclusive license to use LinkTrust’s Data during the term of the Agreement only as necessary to use the Services.
Term and TerminationUnless otherwise stated in the service agreement, the term of your service shall be annual. Service shall continue at the end of such originally stated term for successive terms of the same length unless you provide LinkTrust with written notice of your intent to cancel or modify your service not less than 45 days prior to the end of the then current term of your service. LinkTrust shall have the right to immediately terminate Customer's account if any activity by Customer or Customer’s Affiliates is determined by LinkTrust to constitute sending or encouraging SPAM, Adult Content or DDOS. LinkTrust reserves the right to manage and monitor Customer and Affiliate activities through various mechanisms both internal and third party to ensure network and service safety and compliance.
Customer Right to Terminate: Upon written notice to LinkTrust, Customer shall have the right to terminate this Agreement without cause. In such event: (a) LinkTrust shall discontinue its Services with respect to this Agreement, and (b) LinkTrust has a 30 day cancellation policy. Customer shall be obligated to pay LinkTrust for any invoice falling within 30 days of the cancellation date if the contract is Month-to-Month, or for the remainder of the term of the contract, whichever is greater.
Risk Free Trials. If you were given a Risk Free Trial, you may cancel your account anytime in writing within the trial period and receive a full refund of your activation fee and any monthly amounts paid. Your activation fee will be charged at the beginning of you free trial period and your first monthly fee will be charged at the completion of your free trial period.
Termination of Affiliates. Customer will immediately terminate any Affiliate from using LinkTrust after notification from LinkTrust of a violation, or in the case where Customer is in violation, Customer will cease activity that violates this agreement. If activity is instigated by Customer’s Affiliate(s), then Customer has responsibility to work with Affiliate to cease activity and rectify the current issues. Customer understands that maintaining Customer’s network connection is of the utmost importance to LinkTrust, and Customer agrees that if Customer’s Affiliates or Customer jeopardizes LinkTrust’s network connection, and/or jeopardizes LinkTrust’s business in any way, that Customer’s account may be terminated by LinkTrust. LinkTrust will assist Customer in resolving issues with Affiliates prior to terminating Customer’s account. In addition, LinkTrust reserves the right to discontinue the Site login of any Affiliate that violates the CAN-SPAM Act or any other applicable International SPAM laws and to discontinue providing advertisements to such Affiliate, at any time as determined by LinkTrust in its sole discretion. If LinkTrust decides to take such action, LinkTrust shall promptly notify Customer of its decision in writing.
Service Level Agreement, Warranties and LiabilityGeneral Warranties. LinkTrust warrants that it owns all rights, title, and interest in and to the Software, or that in the case of any third party software that it has the right to grant a sublicense to use such third party software, that all Software shall substantially conform to the Functional Specifications. LinkTrust further warrants that any Services provided by LinkTrust under this Agreement shall be performed in a workmanlike manner and in accordance with the prevailing professional standards of the software industry. This warranty coverage shall include any modifications made to the Software by LinkTrust. Such warranty shall extend for sixty (60) days from acceptance and shall survive inspection, test, acceptance, use, and payment.
Operation of Software. LinkTrust does not warrant that the operation of the Software or the operation of the Software Products will be uninterrupted or error free. Remedy. In the event of any breach of the warranties set forth in this Agreement, LinkTrust’s sole and exclusive responsibility, and Customer’s sole and exclusive remedy, shall be for LinkTrust to correct or replace, at no additional charge to Customer, any portion of the Software or Services found to be defective.
Warranty DisclaimerEXCEPT AS SET FORTH HERE, LinkTrust MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE, OR SERVICES OR THEIR CONDITION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE BY PARTNER. LINKTRUST FURNISHES THE ABOVE WARRANTIES IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Voiding of Warranties. Any and all warranties and indemnifications shall be void as to Services or Software where the non-compliance is caused by or related to (1) the acts or omissions of non-LinkTrust personnel, its agents, or third parties; (2) misuse, theft, vandalism, fire, water, or other peril; (3) any alterations or modifications made to any Software by the Customer, it representatives, or agents; (4) use of the Software other than in the operating environment specified in the technical specifications; or (5) coding, information, or specifications created or provided by Customer.
Customer Warranties Authority. Customer represents and warrants to the LinkTrust that Customer has all requisite power and authority to execute and deliver this Agreement and to perform the Customer’s obligations hereunder. This Agreement has been duly and validly executed and delivered by the Customer, and constitutes a valid and binding obligation of the Customer, enforceable against the Customer in accordance with its terms.
Conflict with Other Agreements. Customer represents and warrants to the LinkTrust that neither the execution and delivery of this Agreement by the Customer nor the consummation by the Customer of the transactions contemplated by this Agreement will (i) conflict with or violate any provision of the Certificate of Incorporation or bylaws of the Customer; (ii) require on the part of the Customer any filing with, or any permit, authorization, consent, or approval of, any court, arbitration tribunal, administrative agency or commission, or other governmental or regulatory authority or agency (a “Governmental Entity”); (iii) conflict with, result in a breach of, constitute (with or without due notice or lapse of time or both) a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice, consent, or waiver under, any agreement, instrument, contract, or arrangement to which the Customer is a party or by which the Customer or any of its properties is bound; or (iv) violate any order, writ, injunction, decree, law, statute, rule, or regulation applicable to the Customer.
Financial Ability. Customer represents and warrants to the LinkTrust that it presently has sufficient funds and will have sufficient funds available to timely pay LinkTrust all amounts due or that will come due under this Agreement.
DISCLAIMER OF LIABILITY.
BOTH PARTIES SHALL NOT BE LIABLE FOR ANY (A) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, ARISING FROM OR RELATED TO A BREACH OF THIS AGREEMENT OR ANY ORDER OR THE OPERATION OR USE OF THE SOFTWARE AND SERVICES INCLUDING SUCH DAMAGES, WITHOUT LIMITATION, AS DAMAGES ARISING FROM LOSS OF DATA OR PROGRAMMING, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, DAMAGE TO EQUIPMENT, AND CLAIMS AGAINST PARTNER BY ANY THIRD PERSON, EVEN IF BOTH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (B) DAMAGES (REGARDLESS OF THEIR NATURE) FOR ANY DELAY OR FAILURE BY BOTH PARTIES TO PERFORM THEIR OBLIGATIONS UNDER THIS AGREEMENT DUE TO ANY CAUSE BEYOND LINKTRUST’S REASONABLE CONTROL; OR (C) CLAIMS MADE A SUBJECT OF A LEGAL PROCEEDING AGAINST LINKTRUST MORE THAN TWO YEARS AFTER ANY SUCH CAUSE OF ACTION FIRST AROSE.
LIMITATION OF LIABILITY. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, BUT EXCLUDING ANY CLAIMS FOR INDEMNIFICATION UNDER THIS AGREEMENT BOTH PARTIES LIABILITIES
UNDER THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY, OR OTHERWISE SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNTS ACTUALLY RECEIVED BY LINKTRUST UNDER THIS AGREEMENT.
Entire AgreementIf any of the provisions of this Agreement shall be invalid or unenforceable under the laws of the jurisdiction where enforcement is sought whether on the basis of a court decision or of arbitral award applicable to the entire Agreement, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions and the rights and obligations of LinkTrust and Customer shall be construed and enforced accordingly.
Events of Default and RemediesEvents of Default. LinkTrust and Customer acknowledge and agree that the following shall constitute events of default (“Events of Default”) and that the occurrence of one (1) or more of such Events of Default shall constitute a material breach of this Agreement, which shall allow a party, as applicable, to seek the rights and remedies set forth in this Section:
Customer’s failure to timely pay any undisputed amount owed to LinkTrust, provided that such failure is not cured within fifteen (15) calendar days following receipt of written notice of such failure; Customer’s breach of this agreement or if Customer otherwise misuses the Software in contravention of this Agreement; Rights and Remedies of LinkTrust upon Default of Customer.
Upon the occurrence of an Event of Default by or with respect to Customer, LinkTrust shall be entitled to any of the following remedies: terminate, in whole or in part, this Agreement; and/or subject to the terms of Section 17, seek to recover damages from Customer; and/or exercise the right of self-help. Transition Rights Termination by Customer. In the event Customer terminates this Agreement pursuant to the terms of this Agreement in whole or in part, Customer shall provide to LinkTrust a written notice of transition (“Transition Notice”), setting forth the target date on which Customer plans to cut-over from LinkTrust’s system to a new system or otherwise not require the future services of LinkTrust (the “Target Cut-Over Date”). At least thirty (30) days prior to the actual cut-over date (“Actual Cut-Over Date”), Customer shall provide LinkTrust with written notice of the Actual Cut-Over Date. LinkTrust shall continue to provide to Customer all Services required by Customer (“Transition Period”). Services provided by LinkTrust during the Transition Period shall continue as necessary for an orderly transition to another system.
Patent and Other Proprietary Rights IndemnificationAll information exchanged between the parties is confidential, as more fully set forth below.
Confidential Information. “Confidential Information” means any material, data, or information in whatever form or media of a party to this Agreement that is provided or disclosed to the other, except for any information that is: (a) publicly available or later becomes available other than through a breach of this Agreement; (b) known to the Receiving Party or its employees, agents, or representatives prior to such disclosure or is independently developed by the Receiving Party or its employees, agents, or representatives subsequent to such disclosure; or (c) subsequently lawfully obtained by the Receiving Party or its employees, agents, or representatives from a Third Party without obligations of confidentiality.
Confidential Information shall include the following categories of information whether disclosed orally or not marked as confidential:
Written Deliverables, network configurations, network architecture, Services rendered by LinkTrust to Customer, financial and operational information, and other matters relating to the operation of the parties’ business, including information relating to actual or potential Customers and Customer lists, Customer usage or requirements, business and Customer usage forecasts and projections, accounting, finance or tax information, pricing information, and any information relating to the corporate and/or operational structure of Customer and its Affiliates, Software, Equipment, Deliverables, or Services rendered under the Letter Agreement and any amendments thereto, any information exchanged between the parties pursuant to the Nondisclosure Agreement, and all information and materials relating to Third Party vendors, systems integrators, or consultants of Customer that have provided or that may provide in the future any part of Customer’s information or communications infrastructure to Customer. The party that has received Confidential Information (the “Receiving Party”) shall exercise the same degree of care and protection with respect to the Confidential Information of the party that has disclosed Confidential Information to the Receiving Party (the “Disclosing Party”) that it exercises with respect to its own Confidential Information and shall not directly or indirectly disclose, copy, distribute, republish, or allow any Third Party to have access to any Confidential Information of the Disclosing Party. Notwithstanding the above, LinkTrust may disclose Customer’s Confidential Information to its employees and agents who have a need to know.
Ownership of Intellectual Property: Pre-existing intellectual property and all improvements thereto that LinkTrust uses in connection with performing the Services, providing any Deliverables and performing any other Services hereunder shall remain the sole and exclusive property of LinkTrust.
Any Custom Programming, including all source code and materials developed by LinkTrust, all intermediate and partial versions thereof, as well as all specifications, program materials, flow charts, notes, outlines, and the like created in connection therewith (collectively, “Custom Programming Materials”) shall be the sole and exclusive property of LinkTrust. All written reports, requirements documents (including newly created technical and non-technical data embodied therein), specifications, program materials, flow charts, notes, outlines, and the like that are developed, conceived, originated, prepared, or generated by LinkTrust in connection with LinkTrust’s performance under this Agreement including, without limitation, all copyright, trademark, trade secret, and all other proprietary rights therein and derivative works created therefrom (collectively, “Written Deliverables”), shall be the sole and exclusive property of LinkTrust.
Such ownership of Custom Programming Materials and Written Deliverables shall inure to the benefit of LinkTrust from the date of the conception, creation, or fixation of the Custom Programming Materials and Written Deliverables in a tangible medium of expression, as applicable. Customer agrees to assist LinkTrust in obtaining and enforcing all rights and other legal protections for the Custom Programming Materials and Written Deliverables and to execute any and all documents that LinkTrust may reasonably request in connection therewith, including any copyright assignment document(s). LinkTrust shall ensure that all Custom Programming Materials and Written Deliverables created hereunder (including each page of any document produced) will be marked as follows:
Confidential and Proprietary © Copyright [20__/Year Developed] LinkTrust Technologies, LLC. All Rights Reserved
Privileged Information. LinkTrust shall keep and maintain all Privileged Information in strict confidence and shall protect all such Privileged Information from disclosure to third parties without the prior written consent of Customer, and Customer shall keep and maintain all Privileged Information in strict confidence and shall protect all such Privileged Information from disclosure to third parties without the prior written consent of LinkTrust.
Residuals. LinkTrust will not be precluded by this Agreement from rendering services or developing work product that is competitive with, or functionally comparable to, the services rendered and Deliverables provided hereunder. LinkTrust shall not be restricted in its use of ideas, concepts, know-how, methodologies, and techniques acquired or learned in the course of activities hereunder.
The provisions of this Section shall not be construed to alter LinkTrust’s obligations under any nondisclosure agreements between the parties.
Employee/Agent Acknowledgment. LinkTrust and Customer shall not disclose Confidential Information or Privileged Information to any of their employees, agents, or representatives unless and until such employee, agent, or representative has been made aware that his or her obligations under this Agreement are subject to confidentiality.
Survival: The terms of this Article shall survive the expiration or termination of this Agreement.
International Privacy Laws. In addition to the above, if any country where Services are to be rendered under the Agreement has or enacts a data protection-related law that requires the execution of a data export agreement, then LinkTrust shall, upon Customer’s request, execute and cause any subcontractors to execute such supplemental agreement promptly on such terms and conditions as shall be mutually agreed. Non-Competition.
Except as otherwise expressly provided in this Agreement, Customer shall indemnify and defend LinkTrust, its directors, and its officers, and shall hold such parties harmless from and against any and all claims, liabilities, damages and expenses, including reasonable attorneys’ fees, arising from any third party claim in connection with (a) any Customer supplied intellectual property, (b) any Functional Specifications supplied by Customer, or (c) Customer’s transaction of business through the use of any web page, website or service. The provisions of this section shall not apply to any third party loss or damage caused by LinkTrust’s gross negligence or willful misconduct.
Compliance with Laws/ Changes in LawsLinkTrust and Partner each shall comply with the provision of all applicable federal, state, county and local laws, ordinances, regulations, and codes [as of the date of this Agreement] including, but not limited to, LinkTrust’s and Partner’s obligations as employers with regard to the health, safety, and payment of its employees, and identification and procurement of required permits, certificates, approvals, and inspections in LinkTrust’s and Partner’s performance of this Agreement.
General IndemnityIndemnity. Subject to the limitations contained in this Agreement, Both parties agree to indemnify and hold each other harmless, from any liabilities, penalties, demands, or claims finally awarded (including the costs, expenses, and reasonable attorney’s fees on account thereof) that may be made by any third party, resulting from the indemnifying party’s gross negligence or willful acts or omissions or those of persons furnished by the indemnifying party, its agents, or subcontractors or resulting from use of the Software, Software Products, and/or Services furnished hereunder.
Customer agrees to defend LinkTrust, at LinkTrust’s request, against any such liability, claim, or demand. Customer agrees to notify LinkTrust promptly of any written claims or demands against the indemnified party for which the indemnifying party is responsible hereunder. The foregoing indemnity shall be in addition to any other indemnity obligations of LinkTrust or Customer set forth in this Agreement.
Assumption of Defense. If the indemnifying party fails to assume the defense of any actual or threatened action covered.
within the earlier of (a) any deadline established by a third party in a written demand or by a court, and (b) thirty (30) days of notice of the claim, the indemnified party may follow such course of action as it reasonably deems necessary to protect its interest and shall be indemnified for all costs reasonably incurred in such course of action.
Obligations that survive terminationThe parties recognize and agree that their obligations under this Agreement survive the cancellation, termination, or expiration of this Agreement or the License granted.
Amendments, Modifications, or SupplementsAmendments, modifications, or supplements to this Agreement shall be permitted, provided all such changes shall be in writing signed by the authorized representatives of both parties, and all such changes shall reference this Agreement and identify the specific articles or sections of this Agreement or the particular order that is amended, modified, or supplemented.
Governing law and venueGoverning Law and Venue. The validity, construction, interpretation, and performance of this Agreement shall be governed by and construed in accordance with the domestic laws of the State of Utah except as to its principals of conflicts of laws and the parties hereto irrevocably submit to the exclusive jurisdiction and venue of the State and Federal Courts of Utah to resolve any disputes arising hereunder or related hereto. Jurisdiction.
The parties hereto hereby (a) submit to the exclusive jurisdiction of any state or federal court sitting in Utah for the purpose of any Action arising out of or relating to this Agreement brought by any party hereto, and (b) irrevocably waive, and agree not to assert by way of motion, defense, or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement may not be enforced in or by any of the above-named courts.
Waiver of breachNo waiver of breach or failure to exercise any option, right, or privilege under the terms of this Agreement or any order on any occasion or occasions shall be construed to be a waiver of the same or any other option, right, or privilege on any other occasion.
Waiver of right to jury trialTHE Customer HEREBY UNCONDITIONALLY WAIVES THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING DIRECTLY OR INDIRECTLY OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OR BREACH OF THIS AGREEMENT, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED AMONG THEM. The scope of this waiver is intended to be all encompassing of any and all disputes that may be filed in any court or other tribunal (including, without limitation, contract claims, tort claims, breach of duty claims, and all other common law and statutory claims).
THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS, OR MODIFICATIONS TO THIS AGREEMENT, AND RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court. Each of the parties hereto (a) certifies that no representative, agent, or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce that foregoing waiver, and (b) acknowledges that it and the other parties hereto have been induced to enter into this Agreement, as applicable, by, among other things, the mutual waivers and certifications.
Force MajeureLinkTrust shall not be responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay or failure is caused by fire, flood, earthquake, explosion, war, embargo, government requirement, civil, or military authority, act of God, terrorism, cyber-terrorism, act or omission of carriers, or other similar causes beyond its control.
If any such an event of force majeure occurs and such event continues for ninety (90) days or more, the party delayed or unable to perform shall give immediate notice to the other party, and the party affected by the other’s delay or inability to perform may elect at its sole discretion to (a) terminate this Agreement upon mutual agreement of the parties; (b) suspend such order for the duration of the condition and obtain or sell elsewhere Software or Services comparable to the Software or Services to have been obtained under this Agreement; or (c) resume performance of such order once the condition ceases with the option of the affected party to extend the period of this Agreement up to the length of time the condition endured. Unless written notice is given within thirty (30) days after the affected party is notified of the condition, option (c) shall be deemed selected.
Covenant of Good FaithEach Party agrees that, in its respective dealings with the other Party under or in connection with this Agreement, it shall act in good faith.
NoticesAll notices, demands, or other communications herein provided to be given or that may be given by any party to the other shall be deemed to have been duly given when made in writing and delivered in person, or upon receipt, if deposited in the United States mail, postage prepaid, certified mail, return receipt requested, as follows:
Notices to Customer will be sent to address included in signature document.
Notices to LinkTrust: LinkTrust Technologies, LLC. 3210 N. Canyon Rd., Suite 207 Provo, UT 84604 Attn: Office Manager
With a required copy to: Daniel F. Van Woerkom Van Woerkom Law, PLLC 11038 N Highland Blvd. #200 Highland, UT 84003, or to such address as the parties may provide to each other in writing from time to time.
Background, enumerations, and headingsThe “Background,” enumerations, and headings contained in this Agreement are for convenience of reference only and are not intended to have any substantive significance in interpreting this Agreement.
Incorporation of Appendices and ExhibitsAny appendices referred to in this Agreement and attached hereto are integral parts of this Agreement and are incorporated herein by this reference.
SeverabilityIf any of the provisions of this Agreement shall be invalid or unenforceable under the laws of the jurisdiction where enforcement is sought whether on the basis of a court decision or of arbitral award applicable to the entire Agreement, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions and the rights and obligations of LinkTrust and Customer shall be construed and enforced accordingly.
CounterpartsThis Agreement and any Appendix hereto, may be executed simultaneously in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
Facsimile or Electronic ExecutionThe parties agree that transmission to the other party of this Agreement with its facsimile signatures or e-signed signatures shall suffice to bind the party transmitting same to this Agreement in the same manner as if an original signature had been delivered. Without limitation of the foregoing, each party who transmits this Agreement with its facsimile signature or e-signed signature covenants to deliver the original thereof to the other party as soon as possible thereafter if requested.
DOS ProtectionUpon determination of an incident, LinkTrust will immediately reroute traffic through its mitigation provider.
Patent And Other Proprietary Rights IndemnificationExcept as otherwise expressly provided in this Agreement, Partner shall indemnify and defend LinkTrust, its directors, and its officers, and shall hold such parties harmless from and against any and all claims, liabilities, damages and expenses, including reasonable attorneys’ fees, arising from any third party claim in connection with (a) any Partner supplied intellectual property, (b) any Functional Specifications supplied by Partner, or (c) Partner’s transaction of business through the use of any web page, website or service. The provisions of this Section 16 shall not apply to any third party loss or damage caused by LinkTrust’s gross negligence or willful misconduct.
DefinitionsWhenever used in this Agreement, or additions to this Agreement, the following terms shall have the meaning ascribed to them below. Other capitalized terms used in this Agreement are defined in the context in which they are used and shall have the meanings ascribed therein. The terms defined in this Schedule include the plural as well as the singular.
- Customer Data shall mean
- information input into the Software interface by Customer, and
- user behavior on Customer’s web site captured by the Software on the Customer’s behalf, all of which shall be stored on LinkTrust servers.
- Affiliate(s) or Affiliate Company shall mean those persons, entities, or companies that sign up with Customer and use LinkTrust Services and/or newsletters in connection with Customer’s business.
- Documentation means collectively:
- all of the written, printed, electronic, or other format materials published or otherwise made available by LinkTrust that relate to the functional, operational, and/or performance capabilities of the LinkTrust and/or any Software;
- all user, operator, system administration, technical, support, and other manuals and all other written, printed, electronic, or other format materials published or otherwise made available by LinkTrust that describe the functional, operational, and/or performance capabilities of the LinkTrust and/or any Software including but not limited to the Functional Specifications and Software Acceptance Plan;
- any other Deliverable that is not Hardware or Software. Documentation shall not include Source Code.
- License(s) shall mean any personal, nonexclusive, nontransferable, non-assignable license or licenses for Customer’s internal use only granted by LinkTrust to Customer to use the Software under this Agreement.
- Privileged Information shall mean information identified by Customer, Customer, or LinkTrust as privileged.
- Services shall mean the work done by LinkTrust in support of the Software, including but not limited to development services, installation services, training, consulting, support, telephone support, and such other services.
- Site shall mean a Customer’s computer facility located in one specific geographic location.
- Software means the aggregate of the Standard Software and the Custom Software including all physical components that are provided by LinkTrust, including but not limited to, magnetic media, job aids, templates, and other similar devices.
- “Source Code” means computer software in the form of source statements for the Software (excluding all Third Party Software) including, without limitation, all software in the form of electronic and printed human-readable, mnemonic or English-like program listings, including printed and on-line descriptions of the design of such software including, without limitation, data definition models, indices, structure tables, system flow charts, program flow charts, defined terms, file layouts, program narratives, global documentation (including global variables) and program listings.
- A denial-of-service (DoS) attack is an attempt to make a computer resource unavailable to its intended users. Although the means to, motives for, and targets of a DoS attack may vary, it generally comprises the concerted, malevolent efforts of a person or persons to prevent an Internet site or service from functioning efficiently or at all, temporarily or indefinitely.