Terms of Service
TCG?s Trade Compliance Assessment Tool (TCAT) Terms of Service
Trade Compliance Assessment Tool License Agreement
This Trade Compliance Assessment Tool License Agreement (the “Agreement”) is made and entered into by and between TCG and the entity agreeing to these terms (“Customer”). “TCG” means Trade Compliance Group, LLC with offices at 1823 Jefferson Place, NW, Washington, DC 20036.
This Agreement is effective as of the date Customer clicks to accept the Agreement (the “Effective Date”). If you are accepting on behalf of Customer, you represent and warrant that: (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement. If you do not have the legal authority to bind Customer, please do not click to accept. This Agreement governs Customer’s access to and use of the Service. For an offline variant of this Agreement, you may contact TCG for more information.
1. Provision of the Services.
1.1 Services Use. Subject to this Agreement, during the Term, Customer may: (a) use the Services, and (b) use any Software provided by TCG as part of the Services. Customer may not sublicense or transfer these rights.
1.2 Console. TCG will provide the Services to Customer. As part of receiving the Services, Customer may have access to the Admin Console, through which Customer may administer the Services.
1.3 Facilities and Data Transfer. All facilities used to store and process Customer Data will adhere to reasonable security standards no less protective than the security standards at facilities where TCG processes and stores its own information of a similar type. TCG has implemented at least industry standard systems and procedures to (i) ensure the security and confidentiality of Customer Data, (ii) protect against anticipated threats or hazards to the security or integrity of Customer Data, and (iii) protect against unauthorized access to or use of Customer Data. TCG may process and store Customer Data in the United States or any other country in which TCG or its agents maintain facilities. By using the Services, Customer consents to this processing and storage of Customer Data. Under this Agreement, TCG is merely a data processor.
1.4 Accounts. Customer must have an Account and a Token (if applicable) to use the Services, and is responsible for the information it provides to create the Account, the security of the Token and its passwords for the Account, and for any use of its Account and the Token. If Customer becomes aware of any unauthorized use of its password, its Account or the Token, Customer will notify TCG as promptly as possible. TCG has no obligation to provide Customer multiple Tokens or Accounts.
1.5 Safe Harbor. TCG is enrolled in the U.S. Department of Commerce Safe Harbor Program and will remain enrolled in this program or another replacement program (or will adopt a compliance solution which achieves compliance with the terms of Article 25 of Directive 95/46/EC) throughout the Term.
1.6 New Applications and Services. TCG may: (i) make new applications, tools, features or functionality available from time to time through the Services and (ii) add new services to the “Services” definition from time to time (by adding them at the URL set forth under that definition), the use of which may be contingent upon Customer?s agreement to additional terms.
1.7 Modifications.
a. To the Services. TCG may make commercially reasonable Updates to the Services from time to time. If TCG makes a material change to the Services, TCG will inform Customer, provided that Customer has subscribed with TCG to be informed about such change.
b. To the Agreement. TCG may make changes to this Agreement, including pricing (and any linked documents) from time to time. Unless otherwise noted by TCG, material changes to the Agreement will become effective 30 days after they are posted, except if the changes apply to new functionality in which case they will be effective immediately. If Customer does not agree to the revised Agreement, please stop using the Services. TCG will post any modification to this Agreement to the Terms URL.
2. Payment Terms.
2.1 Online Billing. TCG will issue an electronic bill to Customer for all charges Customer will pay all Fees in accordance with the payment terms applicable to the Fees. TCG’s measurement of Customer?s use of the Services is final. TCG has no obligation to provide multiple bills.
2.2 Taxes. Customer is responsible for any Taxes, and Customer will pay TCG for the Services without any reduction for Taxes. If TCG is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides TCG with a timely and valid tax exemption certificate authorized by the appropriate taxing authority. In some states the sales tax is due on the total purchase price at the time of sale and must be invoiced and collected at the time of the sale. If Customer is required by law to withhold any Taxes from its payments to TCG, Customer must provide TCG with an official tax receipt or other appropriate documentation to support such withholding.
2.3 Invoice Disputes & Refunds. To the fullest extent permitted by law, Customer waives all claims relating to Fees unless claimed within sixty days after charged (this does not affect any Customer rights with its credit card issuer). Refunds (if any) are at the discretion of TCG and will only be in the form of credit to the original credit card used to secure the Services. Nothing in this Agreement obligates TCG to extend credit to any party.
3. Customer Obligations.
3.1 Compliance. Customer is solely responsible for its Customer Data and for making sure its Customer Data complies with the AUP. TCG reserves the right to review the Customer Data for compliance with the AUP. Customer is responsible for ensuring all End Users comply with Customer?s obligations under the AUP, and the restrictions in Sections 3.3 and 3.5 below.
3.2 Privacy. Customer will protect the privacy and legal rights of its End Users under all applicable laws and regulations, which includes a legally adequate privacy notice communicated from Customer. Customer may have the ability to access, monitor, use, or disclose Customer Data submitted by End Users through the Services. Customer will obtain and maintain any required consents from End Users to allow Customer?s access, monitoring, use and disclosure of Customer Data. Further, Customer will notify its End Users that any Customer Data provided as part of the Services will be made available to a third party (i.e. TCG) as part of TCG providing the Services.
3.3 Restrictions. Customer will not, and will not allow third parties under its control to: (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code or metadata of the Services (b) sublicense, resell, or distribute any or all of the Services; (d) access the Services in a manner intended to avoid incurring Fees; (e); or (f) process or store any Customer Data that is subject to the International Traffic in Arms Regulations maintained by the Department of State, or controlled Customer Data that is subject to the Export Administration Regulations maintained by the Commerce Department.
3.4 Third Party Components. Third party components (which may include open source software) of the Services may be subject to separate license agreements. To the limited extent a third party license expressly supersedes this Agreement, that third party license governs Customer?s use of that third party component.
3.5 Documentation. TCG may provide Documentation for Customer?s use of the Services. The Documentation may specify restrictions on how the Services may be used and Customer will comply with any such restrictions specified.
4. Suspension and Removals
Emergency Security Issues. Despite the foregoing, if there is an Emergency Security Issue, then TCG may automatically suspend the offending End User Account. Suspension will be to the minimum extent required, and of the minimum duration, to prevent or resolve the Emergency Security Issue. If TCG suspends an End User account or the Customer Account, for any reason, without prior notice to Customer, at Customer?s request, TCG will provide Customer the reason for the suspension as soon as is reasonably possible.
5. Intellectual Property Rights; Use of Customer Data; Feedback.
5.1 Intellectual Property Rights. Except as expressly set forth in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other?s content or any of the other?s intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and TCG owns all Intellectual Property Rights in the Services and Software.
5.2 Use of Customer Data. TCG may use Customer Data only to provide the Services to Customer and its End Users and to help secure and improve the Services. For instance, this may include identifying and fixing problems in the Services, enhancing the Services to better protect against attacks and abuse, and making suggestions aimed at improving performance or reducing cost.
5.3 Customer Feedback. If Customer provides TCG Feedback about the Services, then TCG may use that information without obligation to Customer, and Customer hereby irrevocably assigns to TCG all right, title, and interest in that Feedback.
6. Technical Support Services
TCG will provide TSS to Customer during the Term.
7. Deprecation of Services
7.1 Discontinuance of Services. Subject to Section 7.2, TCG may discontinue any Services or any portion or feature for any reason at any time without liability to Customer.
7.2 Deprecation Policy. TCG will announce if it intends to discontinue or make backwards incompatible changes to the Services. TCG will use commercially reasonable efforts to continue to operate those Services versions and features without these changes for at least one month after that announcement, unless (as TCG determines in its reasonable good faith judgment):
(i) required by law or third party relationship (including if there is a change in applicable law or relationship), or
(ii) doing so could create a security risk or substantial economic or material technical burden.
The above policy is the “Deprecation Policy.”
8. Confidential Information.
8.1 Obligations. The recipient will not disclose the Confidential Information, except to Affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to keep it confidential.
8.2 Required Disclosure. Notwithstanding any provision to the contrary in this Agreement, the recipient may also disclose Confidential Information to the extent required by applicable Legal Process; provided that the recipient uses commercially reasonable efforts to: (i) promptly notify the other party of such disclosure before disclosing; and (ii) comply with the other party?s reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (i) and (ii) above will not apply if the recipient determines that complying with (i) and (ii) could: (a) result in a violation of Legal Process; (b) obstruct a governmental investigation; and/or (c) lead to death or serious physical harm to an individual. As between the parties, Customer is responsible for responding to all third party requests concerning its use and its End Users? use of the Services.
9. Term and Termination.
9.1 Agreement Term. The ?Term? of this Agreement will begin on the Effective Date and continue until the Agreement is terminated as set forth in Section 9 of this Agreement.
9.2 Termination for Breach. Either party may terminate this Agreement for breach if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches. In addition, TCG may terminate any, all, or any portion of the Services or Projects, if Customer meets any of the conditions in Section 9.2(i), (ii), and/or (iii).
9.3 Termination for Convenience. Customer may stop using the Services at any time. Customer may terminate this Agreement for its convenience at any time on prior written notice and upon termination, must cease use of the applicable Services. TCG may terminate this Agreement for its convenience at any time without liability to Customer.
9.4 Effect of Termination. If the Agreement is terminated, then: (i) the rights granted by one party to the other will immediately cease; (ii) all Fees owed by Customer to TCG are immediately due upon receipt of the final electronic bill; and (iii) upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party.
10. Publicity. Customer is permitted to state publicly that it is a customer of the Services, consistent with the Trademark Guidelines. If Customer wants to display TCG Brand Features in connection with its use of the Services, Customer must obtain written permission from TCG. TCG may include Customer?s name or Brand Features in a list of TCG customers, online or in promotional materials. TCG may also verbally reference Customer as a customer of the Services. Neither party needs approval if it is repeating a public statement that is substantially similar to a previously-approved public statement. Any use of a party?s Brand Features will inure to the benefit of the party holding Intellectual Property Rights to those Brand Features. A party may revoke the other party?s right to use its Brand Features under this Section with written notice to the other party and a reasonable period to stop the use.
11. Representations and Warranties. Each party represents and warrants that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable. TCG warrants that it will provide the Services in accordance with the applicable SLA (if any).
12. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TCG AND ITS SUPPLIERS DO NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. TCG AND ITS SUPPLIERS ARE NOT RESPONSIBLE OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY CUSTOMER DATA AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF THE SERVICES
NEITHER TCG NOR ITS SUPPLIERS, WARRANTS THAT THE OPERATION OF THE SOFTWARE OR THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED.
13. Limitation of Liability.
13.1 Limitation on Indirect Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR TCG?S SUPPLIERS, WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
13.2 Limitation on Amount of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR TCG?S SUPPLIERS, MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO TCG UNDER THIS AGREEMENT PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
13.3 Exceptions to Limitations. These limitations of liability do not apply to breaches of confidentiality obligations, violations of a party?s Intellectual Property Rights by the other party, or indemnification obligations.
14. Indemnification.
14.1 By Customer. Unless prohibited by applicable law, Customer will defend and indemnify TCG and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from: (i) any Customer Data or Customer Brand Features; or (ii) Customer?s, or its End Users?, use of the Services in violation of the AUP.
14.2 By TCG. TCG will defend and indemnify Customer and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising solely from an Allegation that use of (a) TCG?s technology used to provide the Services (excluding any open source software) or (b) any TCG Brand Feature infringes or misappropriates the third party?s patent, copyright, trade secret, or trademark.
14.3 Exclusions. This Section 14 will not apply to the extent the underlying Allegation arises from:
a. the indemnified party?s breach of this Agreement;
b. modifications to the indemnifying party?s technology or Brand Features by anyone other than the indemnifying party;
c. combination of the indemnifying party?s technology or Brand Features with materials not provided by the indemnifying party; or
d. use of non-current or unsupported versions of the Services or Brand Features;
14.4 Conditions. Sections 14.1 and 14.2 will apply only to the extent:
a. The indemnified party has promptly notified the indemnifying party in writing of any Allegation(s) that preceded the Third-Party Legal Proceeding and cooperates reasonably with the indemnifying party to resolve the Allegation(s) and Third-Party Legal Proceeding. If breach of this Section 14.4(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party?s obligations under Section 14.1 or 14.2 (as applicable) will be reduced in proportion to the prejudice.
b. The indemnified party tenders sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party?s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
14.5 Remedies.
a. If TCG reasonably believes the Services might infringe a third party?s Intellectual Property Rights, then TCG may, at its sole option and expense: (a) procure the right for Customer to continue using the Services; (b) modify the Services to make them non-infringing without materially reducing their functionality; or (c) replace the Services with a non-infringing, functionally equivalent alternative.
b. If TCG does not believe the remedies in Section 14.5(a) are commercially reasonable, then TCG may suspend or terminate Customer?s use of the impacted Services.
14.6 Sole Rights and Obligations. Without affecting either party?s termination rights, this Section 14 states the parties? only rights and obligations under this Agreement for any third party’s Intellectual Property Rights Allegations and Third-Party Legal Proceedings.
15. Miscellaneous.
15.1 Notices. All notices must be in writing and addressed to the other party?s legal department and primary point of contact. The email address for notices being sent to TCG?s Legal Department is legal-notices@tradecompliancegroup.com. Notice will be treated as given on receipt as verified by written or automated receipt or by electronic log (as applicable).
15.2 Assignment. Neither party may assign any part of this Agreement without the written consent of the other.
15.3 Change of Control. If a party experiences a change of Control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) that party will give written notice to the other party within thirty days after the change of Control; and (b) the other party may immediately terminate this Agreement any time between the change of Control and thirty days after it receives that written notice.
15.4 Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
15.5 No Agency. This Agreement does not create any agency, partnership or joint venture between the parties.
15.6 No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
15.7 Severability. If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.
15.8 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
15.9 Equitable Relief. Nothing in this Agreement will limit either party?s ability to seek equitable relief.
15.10 U.S. Governing Law.
ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY DELEWARE LAW, EXCLUDING THAT STATE?S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF DELEWARE, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.
15.11 Amendments. Except as set forth in Section 1.7(b), any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.
15.12 Survival. The following Sections will survive expiration or termination of this Agreement: 5, 8, 9.5, 13, 14, and 16.
15.13 Entire Agreement. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement. The terms located at a URL referenced in this Agreement and the Documentation are incorporated by reference into the Agreement. After the Effective Date, TCG may provide an updated URL in place of any URL in this Agreement.
15.14 Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Agreement, and the terms at any URL.
15.15 Definitions.
? “Account” means Customer?s Trade Compliance Assessment Tool account.
? “Admin Console” means the online console(s) and/or tool(s) provided by TCG to Customer for administering the Services.
? “Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.
? “Allegation” means an unaffiliated third party?s allegation.
? “Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
? “Confidential Information” means information that one party (or an Affiliate) discloses to the other party under this Agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Customer Data is considered Customer?s Confidential Information.
? “Control” means control of greater than fifty percent of the voting rights or equity interests of a party.
? “Customer Data” means content provided, transmitted, or displayed via the Services by Customer or its End Users
? “Documentation” means the TCG documentation (as may be updated from time to time) in the form generally made available by TCG to its customers for use with the Services? “Emergency Security Issue” means either: (a) Customer?s or its End User?s use of the Services in violation of the AUP, which could disrupt: (i) the Services; (ii) other Customers? or its End Users? use of the Services; or (iii) the TCG network or servers used to provide the Services; or (b) unauthorized third party access to the Services.
? “End Users” means the individuals Customer permits to use the Services.
? ?Feedback? means feedback or suggestions about the Services provided to TCG by Customer.
? “Fees” means the applicable fees for each Service and any applicable Taxes. ? “Indemnified Liabilities” means any (i) settlement amounts approved by the indemnifying party; and (ii) damages and costs finally awarded against the indemnified party and its Affiliates by a court of competent jurisdiction.
? “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, and moral rights laws, and other similar rights.
? “Legal Process” means a data disclosure request made under law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, or similar process.
? “Services” means the, services as set forth here: http://tcat.tradecompliancegroup.com/? “Taxes” means any duties, customs fees, or taxes (other than TCG?s income tax) associated with the purchase of the Services.
? “Term” has the meaning set forth in Section 9 of this Agreement.
? “Terms URL” means the following URL set forth here http://tcat.tradecompliancegroup.com/terms:
? “Third-Party Legal Proceeding” means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).
? “Token” means an alphanumeric key that is uniquely associated with Customer?s Account.
? “TSS” means the technical support service provided by TCG to the administrators
? “Updates” means the periodic software updates provided by TCG to Customer from time to time. Updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions.