These Targetprocess Terms of Service ("Terms") describe your rights and responsibilities when using our On-Demand Services (“Services”), and are between you and Targetprocess ("Targetprocess"). If you are agreeing to the Terms not as an individual but on behalf of your company, then "Customer" or "you" means your company, and you are binding your company to these Terms. Targetprocess may modify these Terms from time to time, subject to the Terms in Section 27 (Changes to Terms) below. If you are using the Service Desk Service set up by a Customer, then the "Service Desk users data notice" governs your access and use of the Service.
1. Scope of the document. Applicability.
2. Service Instance Registration.
You may need to register for a Targetprocess Service Instance in order to place orders, or to access/receive Service. Any registration information that you provide to us must be accurate, current and complete. You must also update your information so that we may send notices, statements and other information to you by email or through your Service Instance. You are solely responsible for all actions taken through your Service Instance. If your Instance is being set up by someone who is not formally affiliated with an organization, the Customer is the individual creating the Instance. For example, if you signed up using a personal email address and invited a couple of friends to work on some Project, but haven't formed a company yet, then you are the Customer.
If you signed up for Service using your corporate email domain, your organization is the Customer, and the Customer can modify and re-assign roles on your Instance (including your role), and otherwise exercise its rights under the Contract.
3. Authorized Users.
"Authorized users" means those uniquely identified individuals for which the applicable fees have been paid, as stated on the Order Document, who are authorized by you to use the functionality in the Service, and are marked as 'Active' in the Service database regardless of whether those individuals are actively using the programs at any given time. You are responsible for compliance with these Terms by all Authorized Users. All use of Service by you and your Authorized Users must comply with these Terms and must be solely for your benefit.
Customer will (a) inform Authorized Users of all Policies and Practices that are relevant to their use of the Services and of any terms and settings that may impact the processing of Customer Data; and (b) ensure the transfer and processing of Customer Data (including Personal) under the Contract is lawful.
4. Access to On-Demand Service.
Subject to the terms and conditions of these Terms, Targetprocess grants you a non-exclusive right to access and use the On-Demand Service during the applicable Subscription Term (as defined below) in accordance with this document and the Documentation. If Targetprocess offers client software (e.g., a desktop or mobile application, or a browser add-on) for On-Demand Service, you may use such software solely with the On-Demand Service, subject to the terms and conditions of this document. You acknowledge that our On-Demand Service is an online, subscription-based product, and that we may make changes to the On-Demand Services from time to time.
5. Types of Targetprocess On-Demand Service.
The following service types are offered:
- Paid subscription-based Service provided for the term specified in your Order ("Subscription Term"). Except as otherwise specified in your Order, all subscriptions will automatically renew for periods equal to your initial Subscription Term (and you will be charged at the then-current rates) unless either party provides written notice of termination at least 30 days prior to the end of the then current term. If you cancel, your subscription will terminate at the end of the then-current subscription term, but you will not be entitled to any credits or refunds prior to such termination (additional details under 15.1 Refunds).
- Trial On-Demand Service provided by request for 30 days with no limitation for Authorized Users number. We may extend the term per request via Support or Sales departments. Except as otherwise specified in your Order, Trial Service data will become read-only upon expiration of term and can be converted to Paid Service upon purchase of corresponding licenses. Expired accounts will be deleted after approximately 40 days following the trial License expiration date, all account backups will be permanently deleted in 180 days after trial License expiration date. You may request account and backups data removal earlier via contacting Targetprocess Sales department or Support Team.
- Enterprise Private Cloud On-Demand Service provided on per-request basis. Private Cloud Service features include but are not limited to: dedicated hosting, custom development availability and Premium support. These Terms do not apply to Private Cloud Service Instances: Customer-specific custom Agreement must be signed for enterprise Private Cloud On-Demand Service Instance.
- Legacy Free Service is only provided to customers subscribed to it earlier, new Free Service licenses cannot be issued. "Free" means that Customer may use Service in accordance with these Terms free of charge for any period of time. Targetprocess reserves the right to change "free" service limitations, introduce payments, or terminate free service at any time and for any reason in our sole discretion, without liability to you with prior notification (additional details under 28. Changes to these Terms)provided.
You must ensure that all Authorized Users keep their user IDs and passwords for the On-Demand Service strictly confidential and not share such information with any unauthorized person. You are responsible for any and all actions taken using your accounts and passwords, and you agree to immediately notify Targetprocess of any unauthorized use of which you become aware.
Targetprocess will maintain the security of Targetprocess On-Demand using industry best practices and implements security procedures to help protect Your Data from security attacks. Additional information is available in the Security Notes document. However, you understand that use of the On-Demand Services necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Data that is lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure, or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers. If a Non-Targetprocess Product is enabled for Customer’s Service Instance, please be mindful of any Customer Data that will be shared with the third party provider and the purposes for which the provider requires access. We will not be responsible for any use, disclosure, modification or deletion of Customer Data that is transmitted to, or accessed by, a Non-Targetprocess Product.
8. Your Data.
"Your Data" means any data, content, code, video, images or other materials of any type that you upload, submit or otherwise transmit to or through On-Demand Service. You will retain all rights, title and interest in and for Your Data in the form provided to Targetprocess. Subject to the terms of these Terms, you hereby grant to Targetprocess a non-exclusive, worldwide, royalty-free right to (A) collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the Service to you and (B) for tauboard.com Service that enables you to share Your Data with other people, to distribute and publicly perform and display Your Data as you (or your Authorized Users) via tauboard.com Service. Targetprocess may also access your account or Instance in order to respond to your support requests. You hereby allow Targetprocess to De-identify Your Data. “De-identified” means that the data is anonymized and cannot reasonably identify, relate to, describe, be capable of being associated with, or be linked, directly or indirectly, to a particular company, or individual person, including by aggregation and by removing, without limitation, the following identifiers: company names and the names of individuals, addresses, phone numbers, e-mail address(es) and any other information which could reasonably identify, when taken in the aggregate, a specific company, organization, or individual. Your Data that has been De-identified shall not be deemed Confidential Information, i.e. TargetProcess or its Affiliates may copy, modify, display, and otherwise use such De-identified data for any purpose permitted under applicable law. Nothing in this provision shall prejudice Your rights and or obligations pursuant to Regulation 2016/679 (the “GDPR”) and the California Consumer Privacy Act (“CCPA”), as applicable.
8.1 Sensitive Data.
You will not submit to the On-Demand Service (or use the On-Demand Services to collect): (A) any Personal Data, except as necessary for the establishment of your Targetprocess Service Instance and Authorized Users identification; (B) any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations; (C) any other information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations); or (D) any special categories of personal data as defined in Article 9 of the GDPR ((A) to (D), collectively, "Sensitive Data"). You also acknowledge that Targetprocess is not acting as your Business Associate or subcontractor (as such terms are defined and used in HIPAA) and that the On-Demand Services are not HIPAA compliant. "HIPAA" means the Health Insurance Portability and Accountability Act, as amended. Notwithstanding any other provision to the contrary, Targetprocess has no liability under these Terms for Sensitive Data.
8.2 Indemnity for Your Data.
You will defend, indemnify and hold harmless Targetprocess from and against any loss, cost, liability or damage, including attorneys' fees, for which Targetprocess becomes liable arising from or relating to any claim brought by a third party alleging that Your Data, or your use of the On-Demand Services in breach of these Terms, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. This indemnification obligation is subject to your receiving (A) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (B) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (C) all reasonable necessary cooperation of Targetprocess at your expense.
8.3 Data Privacy
Targetprocess complies with all applicable data protection laws, including, without limitation, the GDPR and CCPA, where and as applicable, and You authorize Targetprocess to use sub-processors to assist with processing of your data. The current list of sub-processors shall be provided upon request.
9. Storage Limits.
There may be storage limits associated with a particular On-Demand Service. In particular we may warn you if total attachments size for your Service Instance exceeds 50 GB. We may impose new or modify existing storage limits for the On-Demand Service at any time in our discretion, with corresponding notification sent to Customers in advance.
10. Responsibility for your Service Instance use.
You must ensure that your use of On-Demand Service and all Your Data is at all times compliant with all applicable local, state, federal and international laws and regulations ("Laws"). You represent and warrant that: (A) you have obtained all necessary rights, releases and permissions to provide all Your Data to Targetprocess and to grant the rights granted to Targetprocess in these Terms and (B) Your Data and its transfer to and use by Targetprocess as authorized by you under these Terms do not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under Section 7 (Security), Targetprocess assumes no responsibility or liability for Your Data, and you shall be solely responsible for Your Data and the consequences of using, disclosing, storing and transmitting it.
11. Removals and Suspension.
Targetprocess has no obligation to monitor any content uploaded to the On-Demand Services. Nonetheless, if we deem such action necessary based on your violation of these Terms or in response to takedown requests that we receive from law enforcement agencies, we may (A) remove Your Data from the On-Demand Services or (B) suspend your access to the On-Demand Service. We will generally alert you in advance when we take such action and give you a reasonable opportunity and time to cure your breach, but if we determine that your actions negatively affect the operation of the On-Demand Service or other Service Instances, we may suspend your access immediately without notice. You will continue to be charged for the On-Demand Service during any suspension period. We have no liability to you for removing or deleting Your Data from or suspending your access to any On-Demand Service as described in this section.
12. Data Portability and Removal at End of Subscription Term.
We will remove or delete Your Data within a reasonable period of time after the termination of your Subscription Term. Most of the data is removed in 6 months after your Instance suspension or subscription term termination. Limited amount of Personal Data (such as Instance Owner Personal Data) will be kept for compliance and accounting reasons for longer period of time - typically up to 6 years.
Your data can be exported in various formats such as CSV, XML and JSON at the end of your Subscription Term.
13. Support and Maintenance.
13.1 Technical Support.
Targetprocess provides various levels of Technical Support depending on your service type:
- Basic Support - legacy Free Service accounts.
- Standard Support - Paid and Trial Service accounts.
- Premium Support - paid option for Private Cloud / Enterprise Service Instances.
The comparison table below includes general details about Technical Support levels:
|Feature||Description||Basic support||Standard support||Premium Support|
|Reply SLA for general requests||For general questions about product usage and account-specific issues||no SLA||24 hours, Monday to Friday||12 hours, Monday to Friday|
|Requests priority||Order of Requests processing by support staff||low||normal||high|
|Live Chat||no Live chat||when operators are available||available (calls have highest priority)|
|Phone support during business hours||no phone support||no phone support||available|
|24/7 phone support for critical issues||not available||not available||available|
Issue Reaction and Target Resolution Service Levels for infrastructure issues
|Issue Level||Reaction time||Target Resolution time***|
|S1 - Critical||2 hours||4 hours|
|S2 - Major||4 business hours||1 business day|
|S3 - Normal||12 business hours||5 business days|
* Business hours refer to 06:00 - 23:00 UTC / 02:00 - 19:00 EST Monday through Friday.
** Issue impact levels
S1 - Critical: the application or critical function is totally not available with no possible work-around. Example: application cannot be opened due to error, all users unable to add user stories.
S2 - Major: important part of the application does not work for a large number of users. Example: search functionality is not working
S3 - Normal: Non-critical issue without affecting basic functionality, small number of users affected, work around is possible. Example: a single user cannot log in
*** Resolution Time does not include time when the request in not replied by customer. In case of product defect does not include development time for bugfix.
**** Dedicated Support Engineer - Senior Support Engineer that will be the primary person to reply to your requests and therefore have a better knowledge of previous cases. In some cases other Support Engineers may also reply in order to improve response times.
E-mail requests are monitored 06:00 - 23:00 UTC / 02:00 - 19:00 EST Monday through Friday.
Live chat is available 06:00 - 23:00 UTC / 02:00 - 19:00 EST Monday through Friday but can be temporarily offline due to the number of service requests.
Corresponding Technical Support contacts are:
Planned maintenance - we perform planned maintenance reboots of our servers on a bi-weekly or less often depending on the patches and fixes release schedules from OS and hardware vendors. Maintenance is performed on weekends, with explicit warning displayed in the application's UI a few days in advance. Typical downtime associated with planned maintenance is 10-20 minutes.
14 Professional Services.
Training service is paid and available upon request. Targetprocess shall retain all rights, title and interest in and to any materials, deliverables, modifications, derivative works or developments related to any training services we provide (“Materials”). Any Materials provided to you may be used only in connection with the Service subject to the same use restrictions for the Service. If applicable, you will reimburse Targetprocess for reasonable travel and lodging expenses as incurred.
14.2 Performance of Professional Services.
The parties may enter into by mutual execution separate Statements of Work for the provision by Targetprocess of Professional Services to You or You may purchase a bundle of hours on Your Order (each a “SOW”) for the provision by Targetprocess of any configuration, deployment, solution consulting, integration, guided services, consultation, education or training services provided by Targetprocess or its Affiliates (“Professional Services”) to You, or Professional Services may be provisioned via reference to service packages in a Order. Targetprocess will provide the Professional Services as set forth in any SOW(s) or Orders(s). The fees for such services will be as provided in the SOW or the applicable Order. Unless provided otherwise in the SOW or Order, fees stated for Professional Services do not include expenses. You will reimburse Targetprocess for actual, travel-related expenses reasonably incurred by Targetprocess while providing the Professional Services, including, but not limited to, air and surface transportation, lodging, car rental, and meals. Such travel expenses will be invoiced to You on a monthly basis in arrears. Either party may propose changes in the Professional Services to be performed under a SOW or Order. Any such change in the Professional Services to be provided under any SOW or Order must be agreed to in writing by the parties.
14.3. Targetprocess Personnel.
Targetprocess will (if requested by You at any time during the term of this Agreement) furnish reasonable information concerning the qualifications of any individual who Targetprocess intends to assign to perform any Professional Services. You may review such information in order to assess their qualifications. Targetprocess will make commercially reasonable efforts to maintain staffing consistency with respect to assigning personnel to perform any Professional Services under this Agreement. Targetprocess shall ensure that its personnel will not hold themselves out as employees or agents of Yours, nor seek to be treated as Your employee for any purpose, including claims of entitlement to fringe benefits provided by You, or for disability income, social security taxes or benefits, unemployment compensation taxes, unemployment insurance benefits or income tax withholding at source. Targetprocess will file all applicable tax returns for its personnel assigned hereunder, and make all required payments and deposits of taxes, in a manner consistent with its status as an independent contractor of services. Targetprocess personnel who have access to Your's Confidential Information (including Subscriber Data), production instance and/or Subscriber's IT systems shall be vetted with appropriate background checks in accordance with Targetprocess's then-current industry standard background screening processes and procedures and local law.
15. Payments and delivery.
You agree to pay all fees in accordance with each Order. Unless otherwise specified in your Order, you will pay all amounts in U.S. dollars at the time you place your Order. All amounts are non-refundable, non-cancelable and non-creditable. In making payments, you acknowledge that you are not relying on future availability of any Service beyond the current Subscription Term or any Service updates or enhancements. If you add more Authorized Users than there are paid in your Subscription Term - Service will switch to read-only mode until you remove or de-activate redundant Authorized Users or order additional users licenses. Additional users licenses may be applied to your Instance before receiving cleared payment upon request via the Sales department You agree that we may invoice you or bill your credit card for renewals, additional users, and unpaid fees, as applicable.
Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms upon execution of an Order. We will promptly deliver the applicable login instructions to the email addresses specified in your Order when we have received payment of the applicable fees or upon execution of an Order and apply license keys to the corresponding Instance. All deliveries of under these Terms will be electronic.
Your payments under these Terms exclude any taxes or duties payable in respect of the Service in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Targetprocess, you must pay to Targetprocess the amount of such taxes or duties in addition to any fees owed under these Terms. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Targetprocess any such exemption information, and Targetprocess will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
Except as otherwise expressly permitted in these Terms, you will not: (A) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, or transfer Service to a third party that is not your affiliate, (B)circumvent mechanisms in the Service intended to limit your use, (C) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Services, except as permitted by law.
17. Your Development of Mashups and Add-Ons.
Targetprocess may periodically publish SDKs or APIs and associated guidelines ("Developer Guides") to allow you to develop mashups, add-ons or other software products or services that interoperate or are integrated with the Service ("Add-Ons"). You may distribute your Add-Ons to third parties but only in accordance with the Developer Guides.
Conditions to Development of Mashups and Add-Ons.
Notwithstanding anything in these Terms to the contrary, Targetprocess has no support, warranty, indemnification or other obligation or liability with respect to your Mashups and Add-Ons or their combination, interaction or use with the Service. You shall indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with any claim brought against us by a third party relating to your Mashups and Add-Ons (including but not limited to any representations or warranties you make about your Mashups and Add-Ons) or your breach of this Section. If a non-Targetprocess Service is connected to Customer’s Instance, please be mindful of any Customer Data that will be shared with external service We will not be responsible for any use, disclosure, modification or deletion of Data that is transmitted to, or accessed by, a non-Targetprocess Service.
18. Ownership and Feedback.
Service is available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as "purchase". Targetprocess and its licensors have and retain all rights, title and interest, including all intellectual property rights, in and to the Service, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Targetprocess. You're welcome to submit comments, information, questions, ideas, description of processes, or other information to Targetprocess, including sharing Your Modifications via Service Desk portal or in the course of receiving Support ("Feedback"). Targetprocess may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. Except as otherwise set forth in other Agreements, no Feedback will be considered as your Confidential Information, and nothing in these Terms limits Targetprocess's right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
Except as otherwise set forth in these Terms, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party ("Receiving Party") by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure or would be understood to be confidential by a reasonable person under the circumstances. Any Targetprocess Technology relating to the Service shall be deemed Confidential Information of Targetprocess without any marking or further designation. Your Data will be deemed Your Confidential Information. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party's nondisclosure obligation shall not apply to information which the Receiving Party can document: (A) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (B) is or has become public knowledge through no fault of the Receiving Party; (C) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (D) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have by law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of the Service.
20. Term and Termination.
These Terms are in effect for as long as you have a valid Subscription Term (the "Term"), unless sooner terminated as permitted in these Terms. Either party may terminate these Terms before the expiration of the Term if the other party materially breaches any of the terms of these Terms and does not cure the breach within thirty (30) days after written notice of the breach. Either party may also terminate the Agreement before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. You may terminate these Terms at any time with notice to Targetprocess, but you will not be entitled to any credits or refunds as a result of convenience termination for prepaid but unused On-Demand Service subscriptions, or Support. Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law, or otherwise. Once the Agreement terminates, you (and your Authorized Users) will no longer have any right to use or access the Service, or any information or materials that we make available to you under these Terms, including Targetprocess Confidential Information. You are required to delete any of the foregoing from your systems as applicable (including any third party systems operated on your behalf) and provide written certification to us that you have done so at our request. The following provisions will survive any termination or expiration of these Terms: Sections 8.2(Indemnity for Your Data), 15(Payment) ( Refunds only), 16(Restrictions), 17(Your Development of Mashups and Add-Ons), 18(Ownership and Feedback), 19(Confidentiality), 20(Term and Termination), 21.2(Warranty Disclaimer), 22(Limitation of Liability), 26(Dispute Resolution), 27(Export Restrictions).
21. Warranty and Disclaimer.
21.1 Due Authority.
Each party represents and warrants that it has the legal power and authority to enter into these Terms, and that, if you are an entity, these Terms and each Order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Document.
21.2 WARRANTY DISCLAIMER.
ALL SERVICES ARE PROVIDED "AS IS," AND TARGETPROCESS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. TARGETPROCESS SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF TARGETPROCESS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER TARGETPROCESS NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY SERVICES OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE SERVICES OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE SERVICES(OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE SERVICES (OR ANY SERVER(S) THAT MAKE A ON-DEMAND SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
22. Limitation of Liability.
NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR SERVICE AND SUPPORT AND MAINTENANCE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, OUR AGGREGATE LIABILITY TO YOU IN RESPECT OF LEGACY FREE SERVICE SHALL BE US $20. THIS SECTION 22 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO (1) AMOUNTS OWED BY YOU UNDER ANY ORDERS, (2) EITHER PARTY'S EXPRESS INDEMNIFICATION OBLIGATIONS IN THESE TERMS, OR (3) YOUR BREACH OF SECTION 16 (RESTRICTIONS). TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER. The parties agree that the limitations specified in this Section 22 (Limitation of Liability) will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by applicable laws. The provisions of this “Limitation of Liability” section allocate the risks under this Contract between the parties, and the parties have relied on these limitations in determining whether to enter into this Contract and the pricing for the Services.
23. IP Indemnification by Targetprocess.
We will defend you against any claim brought against you by a third party alleging that a Service, when used as authorized under these Terms, infringes a third party intellectual property (a "Claim"), and we will indemnify you and hold you harmless against any damages and costs finally awarded by a court of competent jurisdiction or agreed to settlement by Targetprocess (including reasonable attorneys' fees) arising out of a Claim, provided that we have received from you: (A) prompt written notice of the claim (but in any event notice in sufficient time for us to respond without prejudice); (B) reasonable assistance in the defense and investigation of the claim, including providing us a copy of the claim and all relevant evidence in your possession, custody or control; and (C) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the claim. If your use of a Service is (or in our opinion is likely to be) enjoined, if required by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (I) procure a license for your continued use of the Service in accordance with these Terms; (II) substitute a substantially functionally similar Service; or (III) terminate your right to continue using the Service and refund any prepaid amounts for the terminated portion of the Subscription Term. Targetprocess indemnification obligations above do not apply: (1) if the total aggregate fees received by Targetprocess with respect to your subscription to On-Demand Service in the 12 month period immediately preceding the claim is less than US $50,000; (2) if the Service is modified by any party other than Targetprocess without Targetprocess's permission, but solely to the extent the alleged infringement is caused by such modification; (3) if the Service is used in combination with any non-Targetprocess product not provided for in the Documentation, software or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Service; (5) to any Claim arising as a result of (M) Your Data (or circumstances covered by your indemnification obligations in Section 8.2 (Indemnity for Your Data)) or (N) any third-party deliverables or components contained with the Service; (5) to any unsupported release of the Software; or (6) if you settle or make any admissions with respect to a claim without Targetprocess's prior written consent. THIS SECTION 23 (IP INDEMNIFICATION BY TARGETPROCESS) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY SERVICE OR OTHER ITEMS PROVIDED BY TARGETPROCESS UNDER THESE TERMS.
24. Third Party Products and Services.
Targetprocess or third parties may from time to time make available to you third-party products or services, including but not limited to Mashups and Add-ons as well as implementation, customization, training, and other consulting services. If you procure any of these third party products or services, you do so under a separate agreement (and exchange of data) solely between you and the third party vendor. Targetprocess does not warrant or support non-Targetprocess products or services, whether or not they are designated by Targetprocess as "verified" or otherwise, and disclaims all liability for such products or services. If you install or enable any third party products or services for use with Targetprocess products, you acknowledge that the vendors of those products and services may access Your Data as required for the interoperation and support of such Mashups and Add-ons with the Targetprocess Service. Targetprocess shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third party add-on vendors.
25. Publicity Rights.
We may identify you as an Targetprocess customer in our promotional materials only after receiving approval from an authorized representative. You may request that we stop identifying you by contacting the Support or Sales departments at any time. Please note that it may take us up to 5 days to process your request.
26. Dispute Resolution.
In the event of any controversy or claim arising out of or relating to these Terms, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to these Terms shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in the following city or at an alternative location as mutually agreed upon between the parties: Seattle, WA in King County, WA, USA. . If the parties are unable to agree to one of these cities, then the arbitration shall proceed in Seattle, USA. All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.
26.2 Governing Law; Jurisdiction.
The laws of the State of Delaware shall govern this Agreement as though this Agreement was entered into, and was to be entirely performed within, the State of Delaware, without regard to its conflict of laws principles. The parties expressly disclaim the applicability of, and waive any rights based upon, the Uniform Computer Information Transactions Act, the United Nations Convention on Contracts for the International Sale of Goods and the Convention on the Use of Electronic Communications in International Contracts. For the avoidance of doubt, nothing stated in this Agreement will prejudice or limit the rights or remedies of either party to enforce any award or decree under the laws of any jurisdiction where property or assets of the other party may be located. All claims or disputes arising out of or in connection with this Agreement that are not subject to the arbitration provisions of Section 26.1 (Dispute Resolution; Arbitration) shall be heard exclusively by any of the federal or state court(s) of competent jurisdiction located in Seattle, WA in King County, WA, USA..
26.3 Injunctive Relief; Enforcement.
Notwithstanding the provisions of Section 26.1 (Dispute Resolution; Arbitration), nothing in these Terms shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
27. Changes to these Terms.
We may update or modify these Terms from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (for example, by sending an email to the billing or technical contact you designate in the applicable Order, posting on our blog or through your Targetprocess Service Instance). If we modify the Terms during your Subscription Term, the modified version will be effective upon your next renewal of Subscription Term, as applicable. In this case, if you object to the updated Terms, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. With respect to Free service, accepting the updated Terms is mandatory for you to continue using the Service. You may be required to click through the updated Terms to show your acceptance. If you do not agree to the updated Terms after it becomes effective, you will no longer have a right to use legacy Free service. For the avoidance of doubt, any Order is subject to the version of the Terms Agreement in effect at the time of the Order.