Terms of Service

CUSTOMER TERMS OF SERVICE

1. These TruCentive Customer Terms of Service is an agreement (this “Agreement”) between you (“Licensee”) and TruCentive Inc. (“TruCentive”) (respectively, each a “Party” and collectively, the “Parties”).   It describes the Services (as defined below) we will provide to you, how we will work together, and other aspects of our business relationship.  By using the Services, you are agreeing to the terms of this Agreement.
2. Other Terms and Conditions. All Services provided by TruCentive to Licensee shall also be governed by the TruCentive, Inc. Terms of Use, SMS Terms and Conditions, and Privacy Policy, each as updated from time to time and available for viewing by clicking the links above or at the TruCentive website, TruCentive.com. 
3. Purchase of Programs. TruCentive agrees to perform the work and provide services (the “Services”) for Licensee’s purchase and delivery to designated recipients of digital instruments (“Instruments,” as further defined in the TruCentive, Inc. Terms of Use).  This Agreement, by itself, does not implement any transaction; Licensee shall purchase individual programs under the Services by creating each program using the TruCentive.com website.
4. Compensation; Payment Terms.
   • TruCentive will not deliver any Instrument until the associated funding for the value of the Instrument and associated fees have been received from Licensee. In addition, Licensee will pay all amounts specified with each order at the time of such order.  TruCentive may change the amount(s) of its fees in connection with any renewal of this Agreement.  TruCentive (1) will not be required to grant Licensee access to its platform on TruCentive.com until all applicable license fees have been paid in full and (2) will not deliver Instruments on behalf of Licensee when the funds held for Licensee are insufficient to purchase the requested Instruments plus associated delivery fees; deposits of funds for purchasing Instruments (including delivery fees) may require up to three (3) business days to become available to send via Envelopes to recipients.  Payments made by Licensee in error cannot be recalled if the associated funds have already been utilized by the program participant.
   • All payment amounts shall, unless otherwise stated, be exclusive of any federal, state, municipal or other government taxes (including sales or value added taxes), duties, excises or tariffs now or hereinafter imposed on the provision of the Services (collectively, “Applicable Taxes”). All Applicable Taxes will be paid by Licensee.  If TruCentive is required to pay any such taxes directly, Licensee shall, upon receipt of TruCentive’s invoice, reimburse TruCentive for any amount that is paid by TruCentive. Licensee will be solely responsible for all tax-related withholding, filing, remittance, and reporting it deems necessary or required related to Instruments issued under this Agreement.  TruCentive shall not have any responsibility or liability for any tax-related withholding, filing, remittance, or reporting, in the United States or internationally, either to the governing regulatory body or to any recipients, and Licensee will indemnify and hold TruCentive harmless from any and all claims, investigations, inquiries, or subpoenas, and all associated costs and expenses incurred by TruCentive, resulting from or arising out of any such tax-related withholding, filing, remittance, or reporting or the failure to perform or improper performance of the same.
5. Term and Termination. This Agreement will commence on the date it is accepted by Licensee and continue for a term applicable to the pricing policy chosen by Licensee, unless sooner terminated as provided in this Agreement. Unless otherwise specified, “Enterprise” plans have an initial term of one year, and “Prepaid Delivery” plans have an initial term of one month.  Upon expiration of the initial term, this Agreement shall automatically renew for successive periods equal to the initial term (each, a “Renewal Term”) at Tru-Centive’s then-current pricing levels.  Either Party may terminate this Agreement at any time by providing the other Party with thirty (30) days advance written notice of termination, provided that all license fees, non-recurring engineering fees and other fixed fees shall be non-refundable.  In the event of termination, Licensee shall pay to TruCentive any fees, costs, or expenses incurred up to and including the date of termination.  In the event that this Agreement is terminated prior to the expiration of the then-current term, TruCentive shall, within 90 days after receipt of a written request to do so, return to Licensee any amounts paid into Licensee’s account but not yet used for purchasing Instruments or sending envelopes; TruCentive will generally return such amounts to the original form of payment received from Licensee but reserves the right in its sole discretion to return such amounts in another manner if unable to do so.  Following the expiration or termination of this Agreement, Licensee shall continue to have access to existing programs via the TruCentive.com website through the completion date of such programs, provided that no new Envelopes or Instruments may be sent after the date of termination.
6. Limited Warranty; Compliance with Laws by Licensee. TruCentive warrants that the Services will be provided in a professional workmanlike manner in accordance with industry standards. If, after notice from Licensee, the Services are determined not to meet the above standards, TruCentive’s sole obligation, and Licensee’s sole remedy, is for TruCentive to use reasonable commercial standards to attempt to correct any defects in the Services.  If TruCentive is unable to correct any such defects after a reasonable period of time, Licensee’s sole remedy is termination of the relevant program in exchange for a refund of the unspent amount deposited with TruCentive for such program.  Licensee shall use the Services in accordance, and is solely responsible for its own compliance with, all applicable laws and regulations (including, but not limited to, any anti-money-laundering laws or rules of the U.S. Department of the Treasury or its Financial Crimes Enforcement Network).  Licensee agrees and acknowledges that TruCentive is not a money transmitter, as defined in the United States Code of Federal Regulations 31 CFR 1010.100(ff)(5), and that TruCentive may accept and transmit funds only integral to the sale of goods or the provision of services by the person who is accepting and transmitting the funds.
7. Disclaimer of Liability. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10, TRUCENTIVE MAKES NO WARRANTY OR REPRESENTATIONS REGARDING ANY SERVICES PROVIDED UNDER THIS AGREEMENT.  TRUCENTIVE DISCLAIMS AND EXCLUDES ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF GOOD TITLE, WARRANTIES AGAINST INFRINGEMENT, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  EXCEPT AS SET FORTH IN SECTION 6, TRUCENTIVE DOES NOT WARRANT THAT ANY SERVICES ROVIDED WILL SATISFY LICENSEE’S REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR.  
8. Limitation of Liability. TO THE EXTENT ALLOWED BY APPLICABLE LAW, TRUCENTIVE WILL NOT BE LIABLE TO LICENSEE FOR DAMAGES IN THE NATURE OF EXPECTATION LOSSES, INDIRECT, SPECIAL, RELIANCE, INCIDENTAL OR CONSEQUENTIAL LOSSES, OR ANY LIABILITY FOR THE LOSSES OF ANY KIND OF ANY THIRD PARTY, INCLUDING BUT NOT LIMITED TO THE LOSS OF BUSINESS PROFITS, DATA OR OTHER EXPECTED BENEFIT OF LICENSEE OR ANY THIRD PARTY, WHETHER ARISING UNDER OR OUTSIDE THIS AGREEMENT. EXCEPT FOR OBLIGATIONS WITH RESPECT TO SECTION 10 AND TRUCENTIVE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL TRUCENTIVE’S LIABILITY FOR ANY CAUSE OF ACTION ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNT OF TOTAL FEES ACTUALLY PAID BY LICENSEE FOR THE RELEVANT PROGRAM.  NO ACTION OR PROCEEDING, REGARDLESS OF FORM, MAY BE COMMENCED BY LICENSEE MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.  Licensee and other users are responsible for keeping their password and other security information confidential and choosing sufficiently strong passwords; TruCentive shall not be liable for unauthorized access to or alteration, theft or destruction of Licensee’s data files, programs, procedures or information through accident, password theft or algorithmic trial and error, fraudulent means or devices, or any other method, unless such access, alteration, theft or destruction directly results from TruCentive’s gross negligence or willful misconduct.
9. TruCentive may identify Licensee’s name and/or logo as a customer of the Services on our web sites and in other promotional materials.
10. Indemnification
    • Licensee will indemnify and hold harmless TruCentive and its employees and agents, from and against any third-party claims, demands, loss, damage or expense (including, without limitation, any reasonable outside legal fees and expenses), proceedings, suits and actions and liabilities incurred by TruCentive or its employees, subcontractors or agents based upon (i) Licensee’s noncompliance with laws, rules or regulations in conducting its business (including, but not limited to, any anti-money-laundering laws or rules of the U.S. Department of the Treasury or its Financial Crimes Enforcement Network), (ii) Licensee’s use of the Services in a manner inconsistent with the terms of this Agreement or (iii) all other damages, losses or liabilities arising from TruCentive’s performance of Services under this Agreement, except to the extent such damages, losses or liabilities are found to have resulted from TruCentive’s own gross negligence or willful misconduct.
    • TruCentive will indemnify and hold harmless Licensee and its employees and agents, from and against any third-party claims, demands, loss, damage or expense (including, without limitation, any reasonable outside legal fees and expenses), proceedings, suits and actions and liabilities incurred by Licensee or its employees or agents based upon (i) TruCentive’s unauthorized use of third-party products while providing the Services, (ii) claims that TruCentive’s products, reports or Services, as delivered under this Agreement, infringe on third-party intellectual property rights or (iii) TruCentive’s noncompliance with laws, rules or regulations in conducting TruCentive’s business, except to the extent such damages, losses or liabilities are found to have resulted from Licensee’s own gross negligence or willful misconduct.
11. Intellectual Property Rights. TruCentive (and, where applicable, its licensors) shall exclusively own all right, title, and interest, including all related Intellectual Property Rights, in and to the Services, all deliverables of any kind produced by TruCentive for Licensee and any suggestions, enhancement requests, feedback, recommendations, or other information provided by Licensee relating to the Services. As used in this section, “Intellectual Property Rights means any rights to unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature.  TruCentive and Licensee agree and acknowledge that the Services for which Licensee is retaining TruCentive under this Agreement do not involve “work for hire”.
12. Governing Law and Forum; Attorney’s Fees. This Agreement is made under and shall be governed and construed in accordance with the internal laws (excluding conflicts of laws principles) of the State of California, without giving effect to any terms relating to conflicts of laws that would require the laws of another jurisdiction to apply, and no provision shall be strictly construed against a Party merely because it drafted the provision. The Parties to this Agreement hereby submit and consent to the exclusive jurisdiction and venue of the courts of San Francisco County, California in any action to enforce (or otherwise relating to) this Agreement.  If any legal action is brought to enforce this Agreement, whether or not litigation is commenced, the prevailing Party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
13. Severability. If any provision of this Agreement is judged invalid or unenforceable, the defective provision shall first be revised, limited or amended, consistent with the general intent of the provision, such that it is valid and enforceable, and the remaining provisions of this Agreement shall be unaffected and shall remain enforceable.
14. The failure of either Party to require strict compliance with any term of this Agreement shall not be deemed to be a waiver of that or any other term of this Agreement.
15. Entire Agreement. This Agreement, any Ordering Document between Licensee and TruCentive and the other documents listed in Section 2 set forth the entire understanding and agreement between the Parties relating to the subject matter herein and may be amended only in a writing signed by both Parties. In the event of any conflict between the terms of this Agreement and any additional agreement between the parties requested by Licensee, the terms of each document shall prevail in the following order: (1) any Ordering Document between Customer and TruCentive, (2) this Agreement, (3) the documents listed in Section 2 above, and (4) any additional agreement between the parties. This Agreement will not be supplemented or modified by any course of dealing or trade usage.
16. Counterparts and Facsimile Delivery; Notices. This Agreement may be executed in two (2) or more identical counterparts, each of which shall be deemed to be an original and all of which when taken together shall be deemed to constitute this Agreement. The Parties may sign and deliver this Agreement by electronic transmission. Any notice or other communication made or given by either Party in connection with this Agreement shall be sent registered or certified mail, postage prepaid, return receipt requested, or by commercially acceptable courier service to the address shown above and marked to the attention of the Party’s legal department.
17. Unclaimed Property. If in the course of providing Services TruCentive issues Instruments to recipients, and TruCentive returns to Licensee any funds associated with such Instruments that have not been fully utilized by the recipients, cashed, stopped, or reissued (either subsequent or prospective to issuance), or TruCentive did not receive payment from Licensee for such Instruments, then Licensee agrees that: (i) Licensee is the holder of any unclaimed property associated with such funds or Instruments, (ii)  Licensee has the sole responsibility for complying with unclaimed property law with respect to such funds or Instruments, and (ii) Licensee shall comply with such law as the “holder” of any such unclaimed property.
18. Representations and Warranties. Each Party represents and warrants that (i) it has the full power and authority to enter into this Agreement and (ii) it has the power to fully perform all of its duties and obligations hereunder. The individuals signing below represent and warrant that they are authorized to sign on behalf of the respective Parties and bind those Parties to the terms of this Agreement.
19. Survival. Any term of this Agreement that, by its very nature, is intended to survive termination or cancellation of this Agreement shall survive, including, without limitation, Sections 5, 7, 8, 9-13, 15, 17 and 18.