Genuiti Software, Inc. Terms and Conditions

PLEASE READ THESE TERMS AND CONDITIONS (THESE “TERMS”) CAREFULLY BEFORE USING Genuiti’s services, any documentation provided to you, or our application programming interface (collectively, the “SERVICES”). TRUEREV IS A PRODUCT CREATED BY GENUITI SOFTWARE AND TRUEREV AND GENUITI WILL BE USED INTERCHANGEABLY AND ARE CONSIDERED ONE AND THE SAME IN THESE TERMS AND CONDITIONS. THESE SERVICES ARE OFFERED BY GENUITI, INC., A DELAWARE CORPORATION ("GENUITI," "WE" OR "US"). THESE TERMS SET FORTH THE TERMS, CONDITIONS, AND LIMITATIONS OF YOUR USE OF THE SERVICES. IF YOU DO NOT AGREE TO THESE TERMS, YOU CANNOT USE THE SERVICES.

1. Introduction.

a. By using the Services, you agree to be bound by the Terms, which also incorporate Genuiti's Privacy Policy and all other operating rules, policies, and procedures that may be published from time to time on Genuiti’s website or through the Services, each of which is incorporated herein by reference. In addition, some Services may be subject to additional terms and conditions, which Genuiti will communicate to you in writing. Your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms by this reference. These Terms apply to all users of the Services.

2. Service Use; Term and Termination.

a. TrueRev User ID. As a condition to using the Services, you shall register with TrueRev and select a user identification ("TrueRev User ID"). You hereby acknowledge and agree to provide TrueRev with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of these Terms. You may not: (i) select or use as a TrueRev User ID a name of another person with the intent to impersonate that person; (ii) use as a TrueRev User ID a name subject to any rights of a person other than you without appropriate authorization. Genuiti reserves the right to refuse registration of, or cancel a TrueRev User ID in its discretion. You shall be responsible for maintaining the confidentiality of your Genuiti password, and are fully responsible for all activities that occur under TrueRev User ID, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents) and, except to the extent caused by our breach of this Agreement, we and our affiliates are not responsible for unauthorized access to your account. You agree it is your responsibility to: (a) immediately notify Genuiti of any unauthorized use of your TrueRev User ID or any other breach of security; and (b) ensure that you exit from your account at the end of each session.

b. Interoperation with Third-Party Software. For the sole purpose of facilitating your use of the Services, which requires integration with third-party software (“Third-Party Software”), TrueRev will ask you for your user credentials from such Third-Party Software providers (i.e., your user name and password) (your “Credentials”). You acknowledge and agree that: (a) you will provide TrueRev such Credentials when requested; (b) you authorize and direct TrueRev to use your Credentials solely for the provision of the Services; (c) you understand that TrueRev will work with Third-Party Software providers to retrieve your account information (including financial information) held by such Third-Party Software providers; (d) TrueRev may store such Credentials and all account information in accordance with our Privacy Policy; and (e) if you are unable to provide your Credentials to TrueRev, you shall take all steps reasonably requested by TrueRev in order for TrueRev to access and use such Credentials for the sole purpose of providing you the Services. In the event the Third-Party Software provider prevents or ceases to allow TrueRev access to and use of your Credentials, we may cease providing you those features of the Services without entitling you to any refund, credit, or other compensation.

c. Restrictions on Use. You agree that you will not access the Services by any means except through the interface provided by TrueRev for access to the Services. You covenant you will not (and will not allow any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services (or any underlying software, documentation or data related to the Services); (ii) modify, translate, or create derivative works based on the Services or any underlying software; (iii) copy (except for archival purposes), distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any underlying software; (iv) remove any proprietary notices on the Services.

d. Term. During the Trial Period (as defined in Section 5 below), either party may terminate these Terms upon written notice to the other party (email sufficient with confirmed receipt). After the termination of the Trial Period, and if you select to continue your use of the Services, TrueRev shall enroll you in the Services and provide you the Services for the time period set forth on the ordering page of Genuiti’s website (the “Initial Term”). Thereafter, these Terms shall automatically renew for successive terms equal to the Initial Term, or a different term as selected by you in writing or on Genuiti’s website (“Renewal Terms,” and together with the Initial Term, the “Term”), unless terminated: (i) in a writing received by Genuiti at least 30 days prior to the expiration of the Initial Term or any Renewal Term (as applicable); or (ii) in accordance with the section below.

e. Termination. Either party may terminate these Terms and any agreement between the parties upon 30 days prior written notice (the “Notice”) to the other party in the event: (i) the other party fails to perform any material duty or obligation imposed upon it by these Terms or an Order Form; provided, however, that the breaching party shall have the opportunity to cure such breach within such 30-day period following written notice from the non-breaching party reasonably specifying the facts underlying the non-breaching party’s claim that the other party is in breach; or (ii) the occurrence of any of the following: (1) either party files any petition or action for relief under any bankruptcy, reorganization, insolvency or moratorium law or any other law for the relief of, or relating to, debtors, now or hereafter in effect, or makes any assignment for the benefit of creditors or takes any corporate action in furtherance of any of the foregoing; or (2) an involuntary petition is filed against either Party (unless such petition is dismissed or discharged within 60 days) under any bankruptcy statute now or hereafter in effect, or a custodian, receiver, trustee, assignee for the benefit of creditors (or other similar official) is appointed to take possession, custody or control of any property of such defaulting Party.

f. Survival of Terms. All provisions of these Terms or an Order Form which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, limitations of liability, and any provisions regarding your use of confidential and/or proprietary information.

g. Changes to the Services. Genuiti may make changes or updates to the Services (such as infrastructure, security, technical configurations, application features, etc.) during the Term, including to reflect changes in technology, industry practices, patterns of system use, and availability of Third Party Software. The Service specifications are subject to change at Genuiti’ discretion; however, Genuiti changes to the Service specifications will not result in a material reduction in the level of performance or availability of the applicable Services provided to you for the duration of the Term.

3. Intellectual Property Ownership – Services, Services Data.

a. Services. As between Genuiti and you, Genuiti owns all right, title, and interest in and to the Services, and any and all related Intellectual Property Rights (as defined herein). “Intellectual Property Rights” means any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction in the world, including any applications and registrations for any of the foregoing. Each party reserves all rights not expressly granted in these Terms and the Order Form, and no licenses are granted by a party to the other party pursuant to these Terms or an Order Form, whether by implication, estoppel or otherwise, except as set forth in these Terms or an Order Form.

b. Data. You own all right, title, and interest in and to all data generated by the Services (“Service Data”). Genuiti may compile, aggregate, and use such Service Data in the following manner: (i) Genuiti may retain a copy of the Service Data as necessary to comply with applicable law; (ii) Genuiti may use the Service Data for the purpose of providing and improving the Services; (iii) Genuiti may use the Service Data to provide you third-party services; and (iv) Genuiti may use the Service Data solely in aggregate, non-identifiable form for Genuiti’s legitimate business purposes, provided that Genuiti may not at any time disclose Service Data in a form that identifies you to a third party without your prior written authorization.

4. Confidentiality.

a. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Notwithstanding the foregoing, nothing (except the Services and underlying software, algorithms and information embodied therein) will be considered “Proprietary Information” of the Disclosing Party unless it is or was disclosed in tangible or written form and is conspicuously marked “Confidential”, “Proprietary” (or the like) at the time of disclosure, it is identified as confidential or proprietary at the time of disclosure and is delivered in the appropriately marked form within 30 days of disclosure, or by its nature is reasonably understood by the parties to be Proprietary Information.

b. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof (except the Platform and underlying software, algorithms and information embodied therein which shall remain confidential indefinitely) or any information that the Receiving Party can document: (a) is or becomes generally available to the public without breach of this Section 4; (b) was in its possession or known by it without restriction on disclosure prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. The Receiving Party may disclose certain Proprietary Information that is required by law to be disclosed by Receiving Party, provided that Receiving Party: (x) gives Disclosing Party prompt written notice of such requirement prior to such disclosure; (y) cooperates with Disclosing Party in obtaining an order protecting the information from public disclosure; and (z) limits the disclosure to the specific Proprietary Information and to the extent reasonably required by law to be disclosed.

c. Any suggestions, comments or other feedback provided by a party to the other in connection with the Services (“Feedback”) is and will be treated as the recipient’s Confidential Information. Further, the recipient will be free to use, disclose, reproduce, license, distribute and otherwise exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind.

5. Fees and Payment Terms.

a. For a period of 30 days from when you first register for the Services, Genuiti will provide you the Services free of charge (the “Trial Period”).

b. After the Trail Period has expired, and if you select to continue your use of the Services, you shall pay Genuiti the fees for the Services as agreed to and as set forth on the ordering page of Genuiti’s website (the “Fees”) or as agreed in writing with Genuiti Software, Inc. All Fees paid are non-refundable. Genuiti reserves the right to change the Fees or applicable charges and to institute new Fees and charges at the end of the Initial Term or a Renewal Term, upon 60 days’ prior notice to you (email sufficient). Genuiti shall charge you the Fees on the basis selected by you on the ordering page of Genuiti’s website (e.g., yearly), and you authorize Genuiti to charge all Fees against the credit card you provided to us during your user registration process, unless otherwise agreed to in writing between the parties.

c. You agree and acknowledge that you have not relied on the future availability of any Services, programs or updates in entering into the payment obligations under this Agreement or in your order; however, the preceding does not relieve Genuiti of its obligation during the Term to deliver Services that you have ordered per the terms of this Agreement.

6. Privacy.

a. Use of the Services is subject to the terms of our Privacy Policy located on our website or provided to you through our Services, which is hereby incorporated into and made part of these Terms. Please carefully review our Privacy Policy. By using the Services, you acknowledge that you have read, and you agree to be bound by, the terms of our Privacy Policy. You further acknowledge and agree that any disputes related to the Privacy Policy, including any breaches in security or privacy, will be subject to the limitations on liability, dispute resolution and arbitration provisions contained in these Terms. Genuiti does not knowingly collect any personal information from children under the age of 13.

7. Representations; Warranties; Covenants.

a. Each Party. Each party represents and warrants to the other party that: (i) it has the power and authority to agree to these Terms and to perform the obligations to which it commits herein; (ii) the execution and delivery of an Order Form will be sufficient to render the Order Forms binding upon it; and (iii) neither its performance hereunder nor the exercise by the other party of rights granted by the warranting party hereunder will, to its knowledge, violate any applicable laws or the terms of any other agreement to which the warranting party is or becomes a party.

b. You. You represent, warrant, and covenant to Genuiti that: (i) you will not use the Services in a manner that violates, misappropriates, or infringes any Intellectual Property Rights or rights of privacy or publicity of any third party; (iii) you shall comply with all applicable laws, regulations, governmental rules and guidance while using the Services; and (iii) you will abide by all of the restrictions, covenants, and obligations set forth in these Terms or an applicable Order Form.

c. Genuiti. Genuiti represents, warrants, and covenants to you that: (i) these Terms are valid, binding, and enforceable against it in accordance with its terms; (ii) the Services do not knowingly contain any viruses or other code designed to permit unauthorized access, disable, erase, or otherwise harm software, hardware or data, or perform any other harmful actions; (iii) to Genuiti’ knowledge, the Services do not violate, misappropriate, or infringe any Intellectual Property Rights of any third party; and (iv) it shall comply with all applicable laws and regulations in the performance of its obligations hereunder.

8. Indemnification.

a. Genuiti agrees, at its own expense, to indemnify, defend, and hold you harmless against any suit, claim, proceeding, damages, losses, liabilities, settlements, and expenses brought against you caused by Genuiti’s breach of its representations and warranties set forth in Section 7, provided that you: (i) promptly notifies Genuiti in writing of any such suit, claim or proceeding; (ii) allow Genuiti, at Genuiti’s own expense, to direct the defense of such suit, claim or proceeding; (iii) give Genuiti all information and assistance necessary to defend such suit, claim or proceeding; and (iv) do not enter into any settlement of any such suit, claim or proceeding without Genuiti’s written consent. The foregoing obligations do not apply with respect to the Services or portions or components thereof: (w) used other than in accordance with this Agreement or any documentation provided by Genuiti to you; (x) not supplied by Genuiti; (y) made in whole or in part in accordance to your specifications; (z) combined with other products, processes or materials where the alleged infringement would not have occurred without such combination.

b. You agree, at your own expense, to indemnify, defend, and hold Genuiti harmless against any suit, claim, proceeding, damages, losses, liabilities, settlements, and expenses brought against Genuiti caused by your breach of your representations and warranties set forth in Section 7, provided that Genuiti: (i) promptly notifies you in writing of any such suit, claim or proceeding; (ii) allows you, at your expense, to direct the defense of such suit, claim or proceeding; (iii) gives you all information and assistance necessary to defend such suit, claim or proceeding; and (iv) does not enter into any settlement of any such suit, claim or proceeding without your written consent.

9. DISCLAIMERS; LIMITATION OF LIABILITY.

a. DISCLAIMER. GENUITI does not warrant that the SERVICES will be uninterrupted or error free OR MEET YOUR REQUIREMENTS; nor does it make any warranty as to the results that may be obtained from use of the SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND, EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS OR AN APPLICABLE ORDER FORM, GENUITI AND OTHER AFFILIATED COMPANIES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND OTHER REPRESENTATIVES (COLLECTIVELY, "AFFILIATED PARTIES") EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

b. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR: (I) ERRORS OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY OR LOSS OF BUSINESS OR PROFITS; (II) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES CAUSED BY THE SERVICES; OR (III) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL. EXCEPT FOR: (W) GROSS NEGLIGENCE; (X) WILLFUL MISCONDUCT; (Y) A PARTY’S BREACH OF CONFIDENTIALITY; AND (Z) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY PAID BY YOU TO GENUITI FOR THE SERVICES RENDERED UNDER THIS AGREEMENT OR RELATING TO ANY SUBJECT MATTER OF THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES.

c. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE EXCLUSIONS AND LIABILITY ARE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

10. Miscellaneous.

a. Feedback. Genuiti welcomes and encourages feedback, comments, and suggestions for improvements to the Services (“Feedback”). By submitting Feedback, you acknowledge and agree that: (i) your disclosure is gratuitous, unsolicited, and without restriction; (ii) Genuiti is under no fiduciary duty to you regarding the Feedback; (iii) Genuiti is free to use the Feedback without any additional compensation to you; (iv) all Feedback becomes the exclusive property of Genuiti; and (v) you hereby irrevocably assign to Genuiti your complete right, title, and interest in Feedback, including any and all Intellectual Property Rights contained therein. Additionally, at Genuiti’s request and expense, you agree to execute documents and take such further action as may be reasonably requested to assist Genuiti in acquiring, perfecting, or maintaining such Intellectual Property Rights.

b. Trademarks. "Genuiti” and the Genuiti and TrueRev logo and any other product or service names or slogans contained in the Services are trademarks of Genuiti or its licensors and may not be copied, imitated or used, in whole or in part, without the prior written permission of Genuiti or the applicable trademark holder.

c. Marketing. By agreeing to use the Services, you, on behalf of your organization, expressly authorize Genuiti to produce, publish, and share a case study on Genuiti’s website about your organization’s use of the Services, and allow Genuiti to use your organization’s name and logo in marketing materials such as press releases, advertisements, brochures, etc., without prior notice or compensation.

d. United States Operation. The Services are controlled and operated by Genuiti from within the United States of America, and are intended for use only by residents of the United States. Genuiti makes no representations or warranties that the Services are appropriate or lawful in any foreign countries. Those who choose to use the Services from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.

e. Applicable Law; Dispute Resolution. You agree that all disputes or claims relating your use of the Services will be resolved individually (not in a className or consolidated) and through binding arbitration as opposed to State or Federal court only after you have contacted Genuiti with your concerns. You agree the arbitration shall be conducted by the American Arbitration Association and under its rules. You agree the arbitrator will apply the substantive laws of the State of California. Visit www.adr.org for more information. Additionally, you agree that all arbitration hearings shall be conducted by phone and through the submission of documents unless otherwise mutually agreed upon. However, if your claims qualify for “small claims” court, Genuiti agrees you may file your claim in “small claims” court. Notwithstanding the foregoing, you expressly grant Genuiti the authority to file injunctive or other equitable relief in a court of competent jurisdiction to prevent or halt the breach of these Terms. For any claims against Genuiti filed in a contrary manner to these Terms, you agree that Genuiti may file a claim to recover attorneys’ fees in a court of competent jurisdiction.

f. Entire Agreement; Amendment; Severability. These Terms and all Order Forms are the entire agreement between Genuiti and you and supersedes any prior written or oral agreements. These Terms may not be amended without the written consent of both parties. If any provision of these Terms becomes invalid, illegal, void, or unenforceable under any applicable law, each such provision shall be deemed amended to conform to applicable law; or, if it cannot be amended without materially altering these Terms, such provision shall be deleted.

g. Enforcement. The failure of Genuiti to insist upon strict adherence to any term of these Terms shall not constitute a waiver of such term and shall not be considered a waiver or limit that party's right thereafter to insist upon strict adherence to that term or any other term of these Terms.

h. Assignment. You cannot assign, transfer, or otherwise convey these Terms or any Order Form without the prior written consent of Genuiti. You agree and consent that the agreement between you and Genuiti, as evidenced in these Terms and all applicable Order Forms, and any information collected per the Privacy Policy can be assigned, transferred, or otherwise conveyed to a third party as part of a merger, acquisition, reorganization, sale of the assets, in the event of a bankruptcy, or any other such change of control situation without your prior consent. Additionally, you agree that these Terms continues to bind you and guide the terms and conditions of your use of the Services in any of the foregoing circumstances.