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THIS IS IMPORTANT. PLEASE READ.
BY AGREEING TO THE TRIAND, INC. ("TRIAND", "we", "us", "our") SERVICE AGREEMENT ("Agreement"), OR BY SIGNING A TRIAND SERVICE AGREEMENT, YOU ACCEPT THE FOLLOWING TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE COMPANY TO THE TERMS GOVERNING THE USE OF TRIAND'S ON-LINE SERVICE (THE "SERVICE"). THE TERMS "YOU" AND "YOUR" REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, THAT REGISTERS FOR OR USES THE SERVICE. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST DECLINE AND MAY NOT USE THE SERVICE.
As part of the Service, Triand will provide you with use of the Service, including a browser interface and data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement.
You will pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. You must provide Triand with valid check or purchase order information as a condition to signing up for the Service. You must also report and pay any applicable taxes to the appropriate governmental agency. Purchase orders may be subject to credit approval. Triand charges and collects in advance for use of the Service. Triand will issue an invoice to you:
The renewal charge will be equal to the then-current number of total licenses times the then-current license fee in effect at the time of renewal. Licenses added or subtracted during a billing period will be billed on a pro rata basis. Charges will be based on the number of licenses contracted for, whether or not such licenses are actively used. Fees for other services will be charged on an as-quoted basis. Triand reserves the right to change the fees, applicable charges and usage policies and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. Invoices will be generated at the start of a license or billing period and approximately one month in advance of the start of any renewal or subsequent billing period and shall be due within 30 days. Your account will be considered delinquent (in arrears) if payment in full is not received by the license or billing period start date. You agree to provide Triand with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Triand reserves the right to terminate your access to the Service in addition to any other legal remedies. If you believe that you have been incorrectly billed by Triand, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
In addition to any other rights granted to Triand herein, Triand reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for your licenses during any period of suspension. If you or Triand initiate termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that Triand may bill you for such unpaid fees.
Triand grants to you a personal, non-exclusive, non-transferable license to use and display the audio and visual information, documents, products and software contained in or made available through the Service (the "Content") solely for your own internal business purposes. All rights not expressly granted herein by Triand to you are reserved by Triand and/or its licensors.
You are permitted to store, manipulate, analyze, reformat, print, and display the Content only for your internal business use. Unauthorized use, resale or commercial exploitation of the Service and/or the Content in any way is expressly prohibited. You shall not copy, license, sell, transfer, make available, distribute, or assign this license or the Content to any third party. You shall not create Internet "links" to the Service without prior written permission from Triand. You shall not "frame" or "mirror" any Content contained on, or accessible from, the Service on any other server or Internet-based device.
A user account is required to access the Service and may be accessed and used only by those authorized individuals who are registered with Triand. To open a user account, you or your company must complete the registration process by providing Triand with current, complete and accurate information as prompted by the registration form. In registering for the Service, you and your company's users agree to submit accurate, current and complete information about you and your organization, and promptly update such information. Should Triand suspect that such information is untrue, inaccurate, not current or incomplete, Triand has the right to suspend or terminate your use of the Service. You must choose a personal, non-transferable password. User accounts cannot be "shared" or used by more than one individual. User licenses can be transferred to a new user only if a previous user becomes inactive and is unable to access the Service.
You are solely responsible for any and all activities that occur under your account and ensuring that you exit or log-off from your account at the end of each session of use. You shall notify Triand immediately of any unauthorized use of your password or account or any other breach of security that is known or suspected by you. You shall also use your best efforts to stop immediately any copying or distribution of Content that is known or suspected by you. Triand and its licensors shall not be responsible for
Triand does not own any data, information or material that you submit to the Service ("Data"), unless we specifically tell you otherwise before you submit it. Triand will not monitor, edit, or disclose any information regarding you or your account, including any Data, without your prior permission except in accordance with this Agreement or as may be required by law. Triand may access your account, including its Data, to respond to service or technical problems or as stated in this Agreement.
You, and not Triand, are responsible for all Data that you upload, post, email, or otherwise transmit via the Triand Site. Triand does not control the Data uploaded, posted, emailed, or otherwise transmitted via the Triand Site and, as such, does not guarantee the accuracy, integrity or quality of such Data. Under no circumstances will Triand be liable in any way for any Data, including for any errors or omissions in any Data, or for any loss or damage of any kind incurred as a result of the use of any Data uploaded, posted, emailed or otherwise transmitted via the Triand Site.
Triand reserves the right to establish or modify general practices and limits concerning use of the Service, including without limitation the maximum number of days that Content will be retained by the Service and the maximum disk space that will be allotted on Triand's servers on your behalf. The current maximum disk storage space provided at no additional charge is 10 MB per license. If the amount of disk storage required exceeds this limit, you will be charged one additional license fee at the then-current price for each 10 MB of additional storage (or portion thereof). Triand will use reasonable efforts to notify you when the average storage used per license reaches approximately 90% of the current maximum but you will be responsible for any additional storage charges regardless.
Triand will use reasonable efforts to make the Service available 24 x 7 (twenty-four hours per day, seven days per week), except for planned maintenance periods. Triand reserves the right to perform maintenance of the Service as needed. Triand will use reasonable efforts to limit any unavailability of the Service due to maintenance to non-business hours and to give at least 24 hours notice of any such unavailability.
You agree to abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with the Service. In addition, without limitation, you agree not to use the Service or information from the Service to:
For monthly, quarterly or annual licenses, this Agreement is automatically renewable monthly, quarterly or annually, respectively, unless either party requests termination or a change in service level prior to the commencement of the next period. Either party may terminate this Agreement or reduce the level of service by notifying the other party in writing at least one month in advance of the termination date. You will be billed for the period from the date you initiate the termination/reduction up to and including the date one month following the date you initiated the termination/reduction at the service level prior to such termination/reduction. Upon termination/reduction, you will be granted a refund of any prepaid charges applicable to the period starting one month after our receipt of your written notice of the termination/reduction. For annual subscriptions, this Agreement commences upon the Start Date (as set forth in the Order Form or Service Agreement), is non-cancelable, and, unless terminated for cause by Triand as set forth below, continues for the Initial Term set forth in the Order Form or Service Agreement. This Agreement then will automatically renew for subsequent license terms at Triand's then-current fees unless one party provides the other with written notice of its intent not to renew at least thirty (30) days prior to the end of the then-current term.
Any unauthorized access, use, copying, disclosure, distribution, or sublicensing by you or with your aid or consent of the Service or Content or any related methods, algorithms, techniques, or processes will be deemed a material breach of this Agreement. Triand in its sole discretion may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, Triand may terminate a free account if you do not first log on within 30 days after registration or if 90 days have passed since you last logged on.
Triand reserves the right to withhold, remove and/or discard Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Data immediately ceases, and Triand shall have no obligation to maintain any Data stored in your account or to forward any Data to you or any third party. In the event that you terminate this Agreement (other than by reason of your breach), Triand will make available to you a file of your Data within 30 days of termination if you so request at the time of your notification of termination.
Triand warrants that the confidentiality of student data from our clients will be maintained according to all Federal and State laws, and any local policies that are communicated to us. Triand acts as an agent and representative for the client in the translation, import, and/or analysis of data. Access to personally identifiable data will not be allowed for anyone other than the Triand staff directly responsible for the support, translation, import, and/or analysis of the data. Data will be provided by Triand only to persons or entities authorized by the client. Data will be used by us only according to the Terms of Use agreement. In the event that you terminate this Agreement data will be copied to storage media and returned to you or destroyed upon your request and no back-up or other copies will be maintained by us.
You hereby acknowledge and accept the Triand Privacy Policy, as revised from time to time.
Except for the licenses granted herein, you have no right, title or interest in or to Triand, the Service or any Content of Triand or its licensors, including, without limitation, documentation, stories, articles, text, images, and other multimedia data and all such right, title and interest shall remain exclusively with Triand and its licensors, as applicable. Triand and/or other Triand products and services referenced herein are either trademarks or registered trademarks of Triand. The names of other companies and products mentioned herein may be the trademarks of their respective owners.
You shall indemnify and hold Triand, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with any unauthorized or improper use of the Service or Content or any breach of this Agreement by you. Triand shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with your proper and authorized use of the Service or Content.
This Triand Site may contain links to web sites controlled by parties other than Triand. Triand is not responsible for and does not endorse or accept any responsibility for the contents or use of these third party web sites or any transactions completed through such sites. Triand is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Triand of the linked web site, notwithstanding the inclusion on such site of the trademarks of Triand or its Third Party Providers. It is your responsibility to take precautions to ensure that whatever materials you select for your use is sufficient for your purposes and is free of viruses or other items of a destructive nature.
Materials provided by Third Party Providers on this Triand Site have not been independently reviewed, tested, certified, or authenticated in whole or in part by Triand. Triand does not provide, sell, license, or lease any of the Materials other than those specifically identified as being provided by Triand. Any correspondence with, purchase of goods or services from, participation in third party promotions of such Third Party Providers is solely between you and the applicable Third Party Provider.
Except where expressly provided otherwise by Triand, all comments, feedback, information or materials regarding this Triand Site that are submitted to Triand ("Submissions") shall be considered Triand's property. By providing such Submissions to Triand, you agree to assign to Triand, at no charge, all worldwide rights, title and interest in copyrights and other intellectual property rights to the Submissions.
Triand WARRANTS THAT THE SERVICE PROVIDED WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE FUNCTIONS DESCRIBED ON THE Triand WEBSITE. EXCEPT AS PROVIDED IN SUBSECTION (a) ABOVE: (I) Triand AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT; (II) Triand AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS;(III) THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS; AND (IV) ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY Triand AND ITS LICENSORS.
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY'S LICENSORS BE LIABLE TO ANYONE FOR ANY DIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING LOST PROFITS) OR FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), ARISING UNDER THIS AGREEMENT OR FROM PERFORMANCE THEREUNDER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT THEY HAD ANY KNOWLEDGE, ACTUAL OR CONSTRUCTIVE, THAT SUCH DAMAGES MIGHT BE INCURRED, OR FOR ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, IN THE CONTENT.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you.
This site provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of the European Union. The user of this site ("User") acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to Afghanistan, Burma, Cuba, Iraq, Iran, Libya, Sudan, or any other countries to which the United States and/or the European Union maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using this site, User represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. User agrees to comply strictly with all U.S. and European Union export laws and assumes sole responsibility for obtaining licenses to export or re-export as may be required.This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Triand and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America and/or the European Union, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States Government or appropriate European body for such purposes.
Triand may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in Triand's account information, or by written communication sent by first class mail or pre-paid post to your address on record in Triand's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Triand (such notice shall be deemed given when received by Triand) at any time by any of the following: letter sent by confirmed facsimile to Triand at the following fax numbers (whichever is appropriate): (512) 248-2278; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Triand at the following addresses: Triand, Inc., 14205 North MoPac, Suite 300; Austin, TX 78728.
Triand reserves the right to change the terms and conditions of this Agreement or its policies relating to the Service at any time and shall notify you by posting an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
This Agreement may not be assigned by you without the prior written approval of Triand but may be assigned by Triand to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
The rights and limitations in this Agreement are also for the benefit of Triand's licensors each of whom shall have the right to enforce its rights hereunder directly and on its own behalf.
With respect to U.S. Customers, this Agreement shall be governed by Texas law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Travis County, Texas. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, or Service Agreement, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Triand as a result of this agreement or use of the Service. The failure of Triand to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Triand in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and Triand and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
All content on the Triand Site, unless specifically noted, is: Copyright 2001-2003, Triand, Inc. All rights reserved. Triand and the Triand logos are servicemarks of Triand, Inc. Other trademarks, servicemarks and logos are the property of their respective owners. You are not permitted to use any trademarks, servicemarks or logos without the prior written consent of Triand.
Elements of the Triand Site are protected by copyright, trademark and other intellectual and industrial property laws and international treaties and may not be copied or imitated in whole or in part. No logo, graphic, sound or image from the Triand Site may be copied or retransmitted unless expressly permitted pursuant to this Agreement.
If you have any questions about this Agreement, please contact Triand Customer Support at support@triand.com.