Last Updated: [4.14.2021]
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 13, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND TDS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 13)
1. Overview. The Site provides information about TDS and our products and services. If you or an entity for which you work or which you represent (an “Entity”) enter into an agreement with TDS, the terms applicable to your and such Entity’s access and use of our products and services under the agreement will be subject to the terms and conditions of the agreement and not these Terms.
2. Eligibility. You must be at least 18 years old to use the Site. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Site or any other service or restricted in your use of any other product provided by TDS; (c) your use of the Site is in compliance with any and all applicable laws and regulations; and (e) if you are acting on behalf of an Entity, you have the right to bind such Entity to these Terms, by using the Site on behalf of the Entity, you are binding such Entity to these Terms, and each reference to “you” herein is a reference to the Entity.
3. Licenses; Access Rights
3.1 Limited License and Access; Registration. Subject to your complete and ongoing compliance with these Terms and in some cases, your registration with us, TDS grants you, solely for your personal use, or if you are accessing the Site on behalf of an Entity, solely for use by you on behalf of the Entity for the internal purposes of the Entity only, and not in any case for production or commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license and right to access and view and/or use the Site, including but not limited in connection with your access to a Webinar, white paper, video, blog and/or a live or pre-recorded demonstration of one or more of our products or services (each, a “Demo”) available through the Site (collectively, the “Content,” and to the extent registration is required for such access, “Registered Content”) or in the case of a live Demo, directly by a representative of ours.
3.2 License/Access Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Site or any Content or any visual interfaces, graphics, designs, compilations, information, data, computer code (including source code or object code), products, software, services, or any other elements of the Site and the Content (collectively, the “Materials”); (b) make modifications to the Site or the Materials; or (c) interfere with or circumvent any feature of the Site or the Materials, including any security or access control mechanism. If you are prohibited under applicable law from using the Site or the Materials, you may not use them.
4. Ownership; Proprietary Rights. All Materials are protected by intellectual property and other laws and are the property of TDS or its third-party licensors. Except as expressly authorized by TDS, you may not make use of the Materials. TDS reserves all rights to the Materials not granted expressly in these Terms.
5. Linked Websites. The Site may contain links to third party websites. Linked websites are not under TDS’s control, and TDS is not responsible for their content.
6. Prohibited Conduct. BY ACCESSING OR USING THE SITE OR THE MATERIALS OR RECEIVING A LIVE DEMO FROM ONE OF OUR REPRESENTATIVES YOU AGREE NOT TO:
a. use the Site or a Materials for any illegal purpose or in violation of any local, state, national, or international law;
b. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
c. interfere with security-related features of the Site or the Materials, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Site or the Materials except to the extent that the activity is expressly permitted by applicable law;
d. interfere with the operation of the Site, the Materials or any user’s enjoyment of the Site or Materials, including by uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code or interfering with or disrupting any network, equipment, or server connected to or used to provide the Site or any Materials;
e. perform any fraudulent activity including impersonating any person or entity, or claiming a false affiliation;
f. sell or otherwise transfer the access granted under these Terms or any Materials or any right or ability to view, access, or use any Materials; or
g. attempt to do any of the acts described in this Section 6 or assist or permit any person in engaging in any of the acts described in this Section 6.
7. Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. Material modifications are effective upon acceptance of the modified Terms, demonstrated by your continued use of the Site. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
8. Modification of the Site; Materials. TDS reserves the right to modify or discontinue the Site and/or any Materials at any time (including by limiting or discontinuing certain features of the Site or the Materials), temporarily or permanently, without notice to you. TDS will have no liability for any change to the Site or the Materials or any suspension or termination of your access to or use of the Site or the Materials.
9. Term. These Terms are effective beginning when you accept the Terms or first access, or use the Site, and ending when terminated as described in this Section 9. If you violate any provision of these Terms, your authorization to access the Site, the Materials and these Terms automatically terminate. In addition, TDS may, at its sole discretion, terminate these Terms, or suspend or terminate your access to the Site or the Materials, at any time for any reason or no reason, with or without notice. Upon termination of these Terms: (a) your license and access rights will terminate and you must immediately cease all use of the Site and the Materials; (b) you will no longer be authorized to access the Site and the Materials; and (c) Sections 3.3 (the last sentence), 4, 9, 10, 11, 12, 13, and 14 will survive.
10. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Site, all Demos and the Materials, and you will defend and indemnify TDS and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “TDS Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Site, a Demo or the Materials; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. If you are an Entity, a breach of these Terms by one of your employees or contractors shall be a breach by you. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
11. Disclaimers; No Warranties
11.1 THE SITE ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE AND ANY LIVE DEMO ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TDS DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SITE ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE AND ANY LIVE DEMO, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. TDS DOES NOT WARRANT THAT THE SITE OR ANY PORTION OF THE SITE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SITE OR ANY LIVE DEMO, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND TDS DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
11.2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SITE OR TDS ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SITE OR ANY LIVE DEMO WILL CREATE ANY WARRANTY REGARDING ANY OF THE TDS ENTITIES OR THE SITE OR DEMO THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SITE, ANY LIVE DEMO OR YOUR USE OF THE SITE, THE LIVE DEMO OR THE MATERIALS. YOU UNDERSTAND AND AGREE THAT YOUR USE ANY PORTION OF THE SITE, A DEMO OR THE MATERIALS IS AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SITE, ANY LIVE DEMO OR THE MATERIALS) OR ANY LOSS OF DATA.
11.3 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. TDS does not disclaim any warranty or other right that TDS is prohibited from disclaiming under applicable law.
12. Limitation of Liability
12.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE TDS ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SITE, ANY MATERIALSOR ANY LIVE DEMO, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY TDS ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
12.2 TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE TDS ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SITE, A LIVE DEMO OR THE MATERIALS OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.
12.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 12 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13. Dispute Resolution and Arbitration
13.1 Generally. In the interest of resolving disputes between you and TDS in the most expedient and cost effective manner, and except as described in Section 13.2 and 13.3, you and TDS agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND TDS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
13.2 Exceptions. Despite the provisions of Section 13.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
13.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 13.3 within 30 days after the date that you agree to these Terms by sending a letter to Transitional Data Services, Inc, Attention: Marketing – Arbitration Opt-Out, 1700 West Park Drive, Suite 350, Westborough, MA, 01581 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once TDS receives your Opt-Out Notice, this Section 13.3 will be void and any action arising out of these Terms will be resolved as set forth in Section 14.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
13.4 Arbitrator. Any arbitration between you and TDS will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting TDS. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
13.5 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). TDS’s address for Notice is: Transitional Data Services, Inc, 1700 West Park Drive, Suite 350, Westborough, MA, 01581. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or TDS may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or TDS must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by TDS in settlement of the dispute prior to the award, TDS will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $100.
13.6 Fees. If you commence arbitration in accordance with these Terms, TDS will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Boston, MA, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse TDS for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
13.7 No Class Actions. YOU AND TDS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and TDS agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
13.8 Modifications to this Arbitration Provision. If TDS makes any future change to this arbitration provision, other than a change to TDS’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to TDS’s address for Notice of Arbitration, in which case your account with TDS will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
13.9 Enforceability. If Section 13.7 or the entirety of this Section 13 is found to be unenforceable, or if TDS receives an Opt-Out Notice from you, then the entirety of this Section 13 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 14.2 will govern any action arising out of or related to these Terms.
14.2 Governing Law. These Terms are governed by the laws of the Commonwealth of Massachusetts without regard to conflict of law principles that would result in the application of the laws of another jurisdiction. You and TDS submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Boston, Massachusetts for resolution of any lawsuit or court proceeding permitted under these Terms.
14.4 Additional Terms. Your use of the Site and the Materials is subject to all additional terms, policies, rules, or guidelines applicable to the Site or certain features of the Site that we may post on or link to from the Site or that you agree to in connection with certain technology or services made available to you by or on behalf of TDS (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
14.5 Consent to Electronic Communications. By using the Site, you consent to receiving certain electronic communications from us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
14.6 Contact Information. The Site is offered by Transitional Data Services, Inc., located at 1700 West Park Drive, Suite 350, Westborough, MA, 01581. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.
14.7 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Site or to receive further information regarding use of the Site.
14.8 No Support. We are under no obligation to provide support for the Site. In instances where we may offer support, the support will be subject to published policies.
14.9 International Use. The Site and all Materials are intended for visitors located within the United States. We make no representation that the Site or the Materials are appropriate or available for use outside of the United States. Access to the Site or the Materials from countries or territories or by individuals where such access is illegal is prohibited.
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