Terms of Service

Last Updated: October 6, 2023

These terms of service and all materials and links referred to herein (the “Agreement”) are a binding contract entered into by and between you (“Client” or “you”/“your”) as identified in an applicable Order and Trufla Technology Ltd. (“Trufla”, and together with Client, each a “Party” and collectively, the “Parties”) regarding your use of the Services. The Parties hereby agree to abide by and comply with the terms and conditions of this Agreement.

“You” means the entity that you represent in accepting the terms of this Agreement. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, “you” and “your” will refer to that company or other legal entity.

Other definitions of terms used in this Agreement are set forth in Appendix A at the end of this Agreement.

1. Acceptance

This Agreement governs your access to, and use of the Services and offerings further identified in an applicable Order. By mutually executing one or more Orders with Trufla or by accessing or using the Services, you have indicated that you understand this Agreement and accept all of its terms.

You represent and warrant that
(i) You have full legal authority to bind your employer organization or such entity to this Agreement;
(ii) You have read and understand the terms of this Agreement; and
(iii) You agree to the terms of this Agreement on behalf of the Party you represent. Each time that you access or use Trufla’s Platform or Services you signify that you have read, understand, and agree to be bound by the terms of this Agreement. If you do not agree to these terms you must discontinue using our Platform and Services.

You will ensure that anyone who uses the Services and Platform using your password or login information complies with all of the terms and conditions of this Agreement, and you will be responsible for their acts or omissions.

For information about how Trufla collects, uses and discloses personal information, please review its Privacy Policy located at https://www.trufla.com/legal/privacy-policy/ (the “Privacy Policy”), as amended from time to time. Trufla’s Privacy Policy is hereby incorporated into and made a part of this Agreement by this reference.

2. Interpretation & Service

(a) Certain features, functionality and services that may be provided by Trufla through the Platform and Services are subject to additional or different terms and conditions of this Agreement as set out below (the “Service-Specific Terms”), and where applicable, these Service-Specific Terms will apply to your use of the Platform and Services:

• If you have elected to use or purchase Trufla’s truMobile or truMarket product, you agree to be bound by the truMobile and truMarket Terms;
• If you have elected to use or purchase Trufla’s truWeb product, you agree to be bound by the truWeb Terms; and
• If you have elected to use or purchase Trufla’s truScore product, you agree to be bound by the truScore Term; and
• If you have elected to use or purchase Trufla’s PolicyPro Services product, you agree to be bound by the PolicyPro Services Term.

(b) In the event of any conflict between the Service-Specific Terms related to a particular Trufla product, and the general terms of this Agreement, the Service-Specific Terms shall prevail.

(c) Trufla may update this Agreement at any time, and you should review this Agreement from time to time by accessing the Services. Trufla will provide no less than 30 days’ written notice of any such update by email to the address provided by you. Your continued use of the Services after such 30-day period will be deemed irrevocable acceptance of any update. If you do not agree to such updates, your exclusive remedy is to terminate this Agreement and cease any use of the Site and Services, without any cost, charge or liability, on written notice to Trufla within 10 days of the expiry of that 30-day period. Before you continue, you should print or save a local copy of this Agreement for your records.

3. Subscription for Services

(a) Services. Conditional on Client:

(i) Setting up an account (an “Account”) by supplying unique identification name and password (“Credentials”) to Trufla;
(ii) Complying with the terms of this Agreement;
(iii) Complying with any applicable Service-Specific Terms;
(iv) Cooperating with the reasonable requests of Trufla; and
(v) Where required to receive any Services, downloading and installing any software designated by Trufla in order to receive the Services (“Local Software”), including agreeing to all applicable end-user license agreements for such Local Software, Trufla will provide the Services to Client on the terms and conditions set out in this Agreement.

(b) Orders and Renewals. Unless otherwise specified in this Agreement (including applicable Service-Specific Terms), the term of Services subscription (“Term”) will be specified in each Order Form. The Platform and Services are provided on a subscription basis for the Term specified in any applicable Order Form. Thereafter, Client’s subscription to the Products will automatically renew for successive terms equal in duration to Client’s then-current Term and at Trufla’s applicable list price in effect at the time of the applicable renewal. All renewals are subject to the applicable Services and features continuing to be offered, and will be subject to the then-current fees applicable to the renewed Services. Trufla will contact Client before any automatic renewal, thereby allowing Client to opt out by sending a written notification to that effect to via the interface or via Trufla’s support addresses at least thirty (30) business days before the expiration of Client’s then-current Term. This is the only way to cancel your Account. Phone requests to cancel your Account will not be accepted. If no such notice is received by Trufla, then Client’s Term will be deemed to have been automatically renewed in accordance with this Section. Client’s Term may also be renewed by entering into a mutually agreed Order From, including if Client wishes to increase its allocated scope of use for Services.

(c) Platform. Trufla will use commercially reasonable efforts to make the Platform available. Trufla does not guarantee 24×7 availability of the Platform (or any part of it). Client acknowledges that the Offering will be unavailable during:
(i) Downtime and scheduled upgrades per the Platform Updates Section below; and
(ii) Unavailability caused by circumstances beyond Trufla’s reasonable control, including Force Majeure Events (as defined below) or the unavailability of any third-party Local Software.

(d) Platform Updates and Scheduled Downtime. Trufla may update any aspect of the Offering at any time in its sole discretion, provided however, that no such update will result in a material diminution of the functionality of the Offering. Trufla may schedule downtime for maintenance and upgrades to the Offering without prior notice, but will use reasonable efforts to provide advance notice where practicable.

(e) Responsibility for Data Storage and Backup. Client is solely responsible to back up all Client Data on Client’s local system, including all data, files and records that Client submits to or receives from Trufla. Trufla is not responsible for back ups and does not promise that the Platform performs regular data backups. Any Client Data collected by Trufla will only be accessible to Client during the term of this Agreement and for a period of 30 days following the termination of this Agreement, upon request.

(f) Internet Security Disclaimer. Client acknowledges and agrees that Trufla exercises no control over, and accepts no responsibility for, any content passing through the Internet or for Internet connectivity to the Offering. Client acknowledges that the Internet is inherently risky, and Client assumes responsibility for its access to and use of the Offering over the Internet.

(g) Limitation, Suspension or Termination of Access. In addition to the other rights and remedies of Trufla under this Agreement, Trufla may suspend, terminate or limit (in Trufla’s sole discretion) Client’s access to or use of the Offering, or any part of it, without notice in order to:
(i) Prevent damage to, or degradation of the integrity or security of, the Offering, Client Data or Client’s systems;
(ii) Comply with any law, regulation, court order or other governmental request or order applicable to Trufla; or
(iii) Otherwise protect Trufla from harm to its reputation or business. Trufla will use commercially reasonable efforts to notify Client of a limitation, suspension or termination action as soon as reasonably practicable. In the event of a limitation or suspension, Trufla will restore Client’s access to the Offering when Trufla determines the event has been resolved. Nothing in this Agreement will limit Trufla’s right to take any action or invoke remedies, or will act as a waiver of Trufla’s rights in any way with respect to any of the foregoing activities. Trufla will not be responsible for any loss or damages of any kind incurred by Client as a result of any limitation, termination or suspension of the Offering under this Section.

(h) Subcontractors. Client acknowledges and agrees that Trufla may retain the services of independent consultants, providers, or contractors (“Subcontractors”) from time to time to provide, or to assist Trufla in providing, the Offering. Any Subcontractors used by Trufla to provide the Offering shall remain under the direction and control of Trufla, and Trufla shall be fully and personally liable for all acts or omissions of the Subcontractors.

(i) Data Security. The Client Data will be protected by the industry standard measures and procedures set out in the Security Exhibit. Trufla will improve its security measures and procedures from time to time to reflect process improvements and changing industry practices, provided that no such change will materially reduce the overall security of the Services. Client may not, without the prior written consent of Trufla’s security officer:
(i) Conduct security, integrity, penetration, vulnerability or similar testing on the Services, or
(ii) Use any tool designed to automatically emulate the actions of a human user (commonly referred to as robots) in conjunction with the Services.

4. Intellectual Property

(a) Ownership & Use of Client Data. Trufla expressly acknowledges and agrees that, as between Client and Trufla, Client is the owner of and has exclusive rights, title and interest in and to Client Data now and in the future on a worldwide basis, and that such information is further protected as Client’s confidential information. Trufla shall have the right to access and use such Client Data
(i) To provide the Offering, to provide support for the Offering, to improve or update the Offering and other services or products of Trufla, and to generate Anonymized Data; and
(ii) As expressly set out in any Service-Specific Terms. Client will be responsible to ensure Trufla’s use of any Client Data in accordance with the terms of this Agreement will not violate the rights of any third party, and appropriate consents and permissions have been validly obtained.

(b) Freedom to Use Ideas. For clarity, the ideas, methods, concepts, know-how, structures, techniques, inventions, developments, processes, discoveries, improvements and other information and materials developed regarding the provision of the Offering or Trufla’s Intellectual Property, during the course of this Agreement by Trufla and/or Trufla personnel or Subcontractors, may be used by Trufla without limitation, including by or for its customers.

(c) Retention of Rights. Except as expressly set forth in this Agreement: (i) Trufla retains all right, title, and interest in and to the Trufla Property; and (ii) Client acknowledges that nothing contained in this Agreement will constitute an assignment or transfer of the Trufla Property to Client.

(d) Improvements and AI Functions. Trufla may
(i) Collect, analyze, and use Anonymized Data to operate, enhance, improve, and develop AI Functions, including through model training, and otherwise in connection with our business; and
(ii) Use Anonymized Data to operate, enhance, and improve Trufla’s systems and proprietary technology, and to develop or commercialize Trufla products or services through model training.

5. Client Responsibilities and Restrictions

(a) Credentials. Upon Client’s request, but subject to any limitations associated with Client’s Account, Trufla will issue Credentials to Client for each individual who is an authorized user that Client authorized to use the Offering (each a “User”). Client may only issue Credentials to Users that are its employees, contractors and customers. Users may only access and use the Offering with their specific Credentials. Client is responsible to ensure Credentials are not shared between individuals, and that Users retain the confidentiality of their Credentials. Client is responsible for any and all activity occurring under the Credentials associated with Users. Client will promptly notify Trufla of any actual or suspected unauthorized use of the Offering. Trufla may require that a Credentials be replaced at any time.

(b) Client Responsibilities and Restrictions. Client will not, and will not permit any person to:

• In addition to the provisions of this Section 5(b), violate any provision of the Acceptable Use Policy;
• Use the Offering other than as permitted by this Agreement;
• Use the Offering in violation of any law, regulation or rule;
• Copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, decompile, modify or adapt the Offering or any part thereof or otherwise attempt to discover any source code of the Offering;
• License, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Offering available to any third party, other than to the Users, or any use otherwise than as expressly permitted under this Agreement;
• Use the Offering to upload, collect, transmit, store, use or process, or ask Trufla to obtain from third parties, any data:
  (A) That Client does not have the lawful right to copy, transmit, distribute and display (including any Client Data that would violate any confidentiality or fiduciary obligations that Client might have with respect to the Client Data);
  (B) For which Client does not have the consent or permission from the owner of any Personal Information contained therein;
  (C) That infringes, misappropriates or otherwise violates any Intellectual Property or other proprietary rights of any third party;
  (D) That is tortious, defamatory, obscene or offensive; or
  (E) That violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability;
• Use the Offering to send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another;
• Use the Offering in a manner that interferes with or disrupts the integrity or performance of the Offering;
• Attempt to gain unauthorized access to the Offering or its related systems or networks;
• Probe, scan or attempt to penetrate or ascertain the security of the Offering in any manner;
• Use any data mining, robots or similar data gathering or extraction methods; or
• Use or access the Offering for purposes of competitive analysis of the Offering, the development of a competing product or service or any other purpose that is to Trufla’s commercial disadvantage.

(c) Client Data. As between Trufla and Client, Client is solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all Client Data.

(d) AI Functions. From time to time, Trufla may include AI Functions as part of the Service. This section of the Terms applies to Trufla AI Functions where you provide information (“Input”) and receive output generated and returned by Trufla Al Functions based on the Input (“Output”, and together with Input, “Al Content”).

• When you use such Trufla’s AI Functions, as between the parties and to the extent permitted by applicable law, you own the AI Content. You are solely responsible for your AI Content, including compliance with applicable laws and these Terms. Other users providing similar Input to Trufla’s Al Functions may receive the same or similar Output. Responses received by other users are not your AI Content.
• YOU UNDERSTAND AND AGREE THAT ANY INFORMATION OBTAINED THROUGH USING Trufla AI FUNCTIONS IS AT YOUR SOLE RISK. DO NOT RELY ON FACTUAL ASSERTIONS IN OUTPUT WITHOUT INDEPENDENT FACT-CHECKING. DO NOT RELY ON DESIGNS, WORKFLOWS/PROCESSES, CALCULATIONS, PREDICTIONS, OR CODE IN OUTPUT WITHOUT INDEPENDENT REVIEW OF FUNCTIONALITY AND SUITABILITY. NO SUCH INFORMATION, SUGGESTIONS, OR OUTPUT OBTAINED BY YOU FROM Trufla OR THROUGH Trufla AI FUNCTIONS SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
• You may not use Trufla AI Functions or Output:
  (1) To develop foundation models or other large-scale models that compete with Trufla or Trufla AI Functions;
  (2) To mislead any person that Output from the Service was solely human-generated;
  (3) In a manner that violates any technical documentation, usage guidelines, or parameters;
  (4) To make automated decisions that may have a detrimental impact on individual rights without appropriate human supervision; or
  (5) In a manner that infringes, violates, or misappropriates any of our rights or the rights of any third party.

6. Support

Trufla will provide the following standard support services to Client:

(a) Web and Email Support. Client will have access to Trufla’s technical support portal located at https://help.trufla.com on the Offering and may use the available interfaces, including any customer support email addresses posted thereon, to submit service requests. Trufla will endeavour to acknowledge receipt of such service requests within 4 hours of receipt during business hours.

(b) Incident Management. Trufla will use commercially reasonable efforts to correct any reproducible failure of the Offering to substantial conform to its expected operation, provided that Trufla will not have an obligation to provide a correction for all such nonconformities.

(c) Service Specific Support. Please see https://help.trufla.com for any unique terms for certain Services available to Client.

7. Payment Terms

(a) Subscription Fee. Client will pay to Trufla the Subscription Fee in accordance with the payment terms set forth in Order Form. In addition to any terms of the Order Form or the terms of this Agreement that may modify the Subscription Fee payable hereunder, Trufla may modify the Subscription Fee at any point by providing Client with at least 30 days written notice of any change to any Subscription Fees. If you do not agree to any modifications to the Subscription Fee, you may, as your exclusive remedy is terminate the Agreement and cease use of the Offering, without any cost, charge or liability, on written notice to Trufla within 10 days of the expiry of that 30 day period. Client’s failure to provide notice of termination or continued use of the Services after such 30-day period will be deemed irrevocable acceptance of any such changes to the Subscription Fee.

(b) Pricing. Fees for Services are billed on a monthly basis and are non-refundable except as expressly set out in this Agreement. There will be no refunds or credits for partial months of service or for periods in which you subscribe for any Services that you do not use.

(c) Billing Disputes. If Client in good faith believes that Trufla has billed Client incorrectly, Client must notify Trufla in writing no later than 30 days after the invoice date. The Parties shall cooperate in good faith to resolve any billing concern raised by Client within 30 days after Client notifies Trufla. Trufla reserves the right to charge interest at the rate of the lesser of
(i) 1.5% compounded monthly (19.56% annually), or
(ii) The maximum amount allowed by law, in respect of invoiced amounts that have remained unpaid for more than 30 days from the date of such invoices except for unpaid disputed amounts.

(d) Taxes. The Subscription Fee is exclusive of any taxes, levies, duties or similar governmental assessments of any nature including but not limited to, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Client will be responsible for self-assessment of and self-remission of any and all Taxes associated with this Agreement to the applicable collecting agency or party. In the event that Trufla pays Taxes on behalf of Client, Client will reimburse Trufla for its payment of all Taxes, fees or assessments imposed by any governmental authority upon the Services provided hereunder to Client (excluding taxes based upon Trufla’s income).

8. Warranties

(a) Trufla Warranties. Trufla represents, warrants and covenants to Client as follows:

• The Offering will perform materially as described in the technical specifications set forth in the Documentation and the sole remedy for such failure is for Trufla to use reasonable efforts to cause the Offering to perform in accordance with the Documentation in accordance with Trufla’s then-current standard support and maintenance policies; and
• In performing its obligations under this Agreement, it will comply with all laws applicable to Trufla, including those relating to Personal Information and data protection.

(b) Client Warranties. Client represents, warrants and covenants to Trufla as follows:

• In accessing and using the Offering and in otherwise performing its obligations under this Agreement, Client will comply with all applicable laws, including those relating to Personal Information and data protection; and
• Client has or obtained all rights and permissions necessary to provide Trufla with the use and access to Client Data for use in accordance with applicable laws and the terms of this Agreement.

(c) EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8:
(I) THE OFFERING IS PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND;
(II) TRUFLA HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE; AND
(III) TRUFLA DOES NOT WARRANT THAT THE OFFERING WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE, AND TRUFLA EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CLIENT IN CONNECTION WITH CLIENT’S USE OF THE OFFERING IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CLIENT FOR ANY PURPOSE WHATSOEVER.

(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TRUFLA OR THROUGH OR FROM THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

9. Term and Termination

(a) Term. This Agreement will commence on the date that the Parties first enter into any applicable Order Form and will remain in effect for as long as Client has a valid subscription to the Services, unless sooner terminated as permitted in this Agreement.

(b) Specific Service Term. If Client has elected to use or purchase any Services subject to the Service-Specific Terms, the term of those Services will commence on the date that Client subscribes for the applicable Services and will continue until the earlier of
(i) The termination of this Agreement, or
(ii) When Client ceases receiving the applicable Services covered by Service-Specific Terms, by way of non-renewal, cancellation or termination of the applicable Services. For clarity, Client may subscribe to multiple Services subject to Service-Specific Terms simultaneous, with such subscription continuing independently from the other subscriptions, and each such subscription have a separate term, subject to the details of the Order Form.

(c) Termination. Without prejudice to any other rights or remedies which it may have:

• Trufla may terminate this Agreement for any reason at any time on written notice to the Client with the effective expiration date being the last day of the then current monthly billing term, provided that the Client may elect on written notice to Trufla, to extend the Agreement for one further 30 day billing period;
• A Party may terminate this Agreement if the other Party materially breaches this Agreement and such breach remains uncured 30 days after receiving written notice of such breach;
• A Party may terminate this Agreement immediately by notice to the other Party if
  (1) The other Party is declared insolvent or bankrupt,
  (2) A petition is filed in any court to declare the other Party bankrupt or for a reorganization under bankruptcy law or similar statute and such petition is not dismissed in 60 days, or
  (3) A trustee in bankruptcy or a receiver or similar entity is appointed for the other Party; or
• If you are using the Platform or Service without charge, Trufla reserves the right at any time, and without cost, charge or liability, to terminate this Agreement at its sole discretion for any reason, including, but not limited to, Client’s failure to comply with the terms of this Agreement.

(d) Modifications to the Services. Trufla reserves the right to modify, suspend or discontinue the Offering, or any portion thereof, at any time and for any reason, with or without notice.

(e) Obligations on Termination. Upon any expiration or termination of this Agreement, Client will immediately cease any and all use of the Offering, all rights granted herein will revert to the granting Party and all licenses will terminate. This Section is subject to any rights or obligations expressly surviving the termination or expiry of this Agreement.

(f) Survival. All sections of this Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.

10. Liability Limitations

The following provisions have been negotiated by each Party, are a fair allocation of risk, are an essential basis of the bargain under this Agreement and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

(a) Amount. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL A PARTY’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS IN AGGREGATE IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CLIENT TO TRUFLA IN THE 6 MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION FIRST AROSE. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.

(b) Type. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY
(I) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
(II) LOST SAVINGS, PROFIT, DATA, USE OR GOODWILL,
(III) BUSINESS INTERRUPTION, EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR
(IV) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. IN NO EVENT SHALL TRUFLA BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.

(c) Third Party Websites. THE SERVICES MAY PROVIDE ACCESS TO THIRD PARTY WEBSITES, SERVICES AND SOFTWARE. YOUR USE OR INTERACTION WITH ANY SUCH WEBSITES, SERVICES OR SOFTWARE IS ENTIRELY AT YOUR OWN RISK. TRUFLA DOES NOT CONTROL SUCH THIRD PARTIES, WEBSITES, SERVICES OR SOFTWARE. TRUFLA IS NOT RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND BY INCURRED BY YOU OR ANYONE ELSE AS THE RESULT OF INTERACTIONS OR DEALINGS WITH SUCH THIRD PARTIES, WEBSITES, SERVICES OR SOFTWARE. IN THE EVENT THAT TRUFLA DOES BECOME LIABLE, THE LIMITATIONS SET OUT IN SECTIONS 10(a) AND 10(b) ABOVE WILL ALSO APPLY WITH RESPECT TO ANY DAMAGES INCURRED BY REASON OF ANY WEBSITE, SERVICES, SOFTWARE OR CONTENT PROVIDED BY ANY THIRD PARTY AND RECEIVED BY YOU.

(d) Exclusions. THE PROVISIONS OF SECTIONS 10(a) AND 10(b) SHALL NOT APPLY TO THE EXTENT THAT THE CAUSE OF ACTION GIVING RISE TO THE CLAIM ARISES FROM:

• ANY INDEMNITY OBLIGATION OF A PARTY UNDER THIS AGREEMENT;
• CLAIMS FOR FEES OWED TO TRUFLA UNDER THIS AGREEMENT AND ANY COST, EXPENSE OR FEES INCURRED IN COLLECTION OF SUCH FEES; OR
• LOSSES ARISING AS A RESULT OF A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD.

11. Disputes

IMPORTANT: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN THE RESOLUTION OF CLAIMS BETWEEN TRUFLA AND YOU, INCLUDING, TO THE EXTENT PERMITTED BY LAW, THAT YOU RESOLVE ANY DISPUTES YOU HAVE WITH TRUFLA THROUGH FINAL AND BINDING ARBITRATION. PLEASE SEE THE “DISPUTES” SECTION BELOW FOR MORE INFORMATION.

(a) Claims. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT YOU ARE REQUIRED TO RESOLVE ANY CLAIM THAT YOU MAY HAVE AGAINST TRUFLA ON AN INDIVIDUAL BASIS IN ARBITRATION AS SET FORTH IN THIS SECTION 11.

(b) No Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.

(c) No Participating in Class Action. TO THE EXTENT PERMITTED BY APPLICABLE LAW, CLIENT AGREES THAT, WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, CLIENT HEREBY GIVES UP ITS RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.

(d) Arbitration. To the extent permitted by applicable law, any dispute or claim between Client and Trufla, arising out of or relating to this Agreement will be referred to and finally resolved by arbitration pursuant to the Arbitration Act (Alberta) or the International Commercial Arbitration Act (Alberta), as applicable. The case will be adjudicated by a single arbitrator. The place of arbitration will be Calgary, Alberta, Canada. The language of the arbitration will be English. The number of arbitrators shall be one. Notwithstanding the foregoing, Trufla may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction and you agree that this Agreement is specifically enforceable by Trufla through injunctive relief and other equitable remedies without proof of monetary damages.

(e) Timing. No action, regardless of form, which arises from or is related in any way whatsoever to this Agreement, may be commenced by you more than twelve (12) months after such cause of action accrues.

12. Indemnities

(a) Trufla Indemnity. Trufla will defend and indemnify Client from and against third party claims, suits, demands, or actions (“Claims”), for resulting damages awarded (including reasonable attorneys’ fees) or amounts in settlement of such Claims to the extent arising from: (i) a claim that the Services, as provided, infringe any Intellectual Property of a third party in Canada; or (ii) any grossly negligent, willful misconduct or fraudulent action of Trufla. Notwithstanding the foregoing, Trufla shall have no liability to Client for any infringement action which arises out of a breach of the terms and conditions of this Agreement by Client or Client’s use of the Services
(1) After they have been modified by Client or a third party without Trufla’s prior written consent, or
(2) In combination with any other service, equipment, software or process not provided by Trufla. In the event that the Services are held to or believed by Trufla to infringe the Intellectual Property of a third party, Trufla will have the option to:
(A) Replace or modify the Services to be non infringing, provided that such modification or replacement contains substantially similar features and functionality;
(B) Obtain for Client the right to continue using the Services; or
(C) If both (A) and (B) are not reasonably practicable, terminate this Agreement and refund to Client the pro rata portion of the Subscription Fee pre-paid to Trufla for any Services not provided by Trufla after the date of termination.

(b) Client Indemnity. Client will defend and indemnify Trufla and its subsidiaries, affiliates, suppliers, co-branders, all third party advertisers, technology providers, service providers or other partners, and each of their respective officers, directors, agents, shareholders, employees and representatives from and against all claims, suits, demands, or actions (also, “Claims”), against all costs, expenses and resulting damages awarded (including reasonable attorneys’ fees) or amounts in settlement of such Claims to the extent arising from:
(i) A claim that the Client Data infringes any Intellectual Property of a third party or any other third party right;
(ii) Any grossly negligent, willful misconduct or fraudulent action of Client, or
(iii) A breach by Client or User of Section 5.

(c) Conditions. Any Party that is seeking to be indemnified under the provision of this Section 12 (an “Indemnified Party”) must
(a) Promptly notify the other Party (the “Indemnifying Party”) of any Claim, and
(b) Give the Indemnifying Party the sole control over the defense of such Claim. However, if an Indemnified Party fails to notify the Indemnifying Party promptly, the Indemnifying Party will be relieved of its obligations under this Section 12 only if and to the extent that its ability to defend the Claim is materially prejudiced by such failure. The Indemnifying Party may settle or compromise a Claim without the Indemnified Party’s prior approval of any such settlement or compromise only if
(A) Such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party,
(B) Such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert in any such claim, and
(C) The sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party. Upon the Indemnifying Party’s assumption of the defense of such Claim, the Indemnified Party will cooperate with the Indemnifying Party in such defense, at the Indemnifying Party’s expense.

13. General Provisions

(a) Interpretation. In this Agreement:
(i) Words denoting the singular include the plural and vice versa and words denoting any gender include all genders;
(ii) All usage of the word “including” or the phrase “e.g.,” in this Agreement shall mean “including, without limitation,” throughout this Agreement;
(iii) All dollar amounts are expressed in Canadian dollars unless expressly provided otherwise in the Order Form. Headings and the division of this Agreement into sections are for convenience of reference only and shall not affect the interpretation hereof.

(b) Reserved Rights. Unless otherwise expressly provided for in this Agreement, all rights are reserved by a Party, and no rights or licenses to any data, information, technology, trademarks or any other item containing the Intellectual Property of a Party or any third party are granted by virtue of this Agreement.

(c) Force Majeure. If the performance of any obligation hereunder, except non-payment of amounts due hereunder, is interfered with by reason of any circumstances beyond a Party’s reasonable control, including but not limited to acts of God, labour strikes and other labour disturbances, power surges or failures, Internet connectivity, or the act or omission of any third party (each, a “Force Majeure Event”), the Party shall be excused from such performance to the extent necessary. Each Party will use reasonable efforts to implement industry standard procedures to minimize the disruption of such Force Majeure Events and shall use reasonable efforts to remove such causes of non performance.

(d) Entire Agreement. The terms and conditions of this Agreement supersede and replace all previous and contemporaneous agreements, proposals or representations related to the Offering.

(e) Assignment. Client shall not assign this Agreement without the prior written consent of Trufla, which consent shall not be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, Client shall have the right to assign this Agreement to an affiliate (that is 50% or more owned by the Client after a transaction or series of transactions is complete) in connection with a merger, amalgamation, transfer of control, reorganization or sale of all or substantially all of its assets or equity interests, provided that in the case of assignment by Client, such assignment may not be to a competitor of Trufla. Notwithstanding the foregoing, in order for any assignment to be effective, the assignee must agree in writing to be bound by the terms of this Agreement.

(f) Severability; Waiver. In the event that any provisions of this Agreement shall be found to be illegal, void or unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of the Agreement shall remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.

(g) Relationship of Parties. The Parties are independent contractors. No agency, partnership, joint venture or employment relationship is created as a result of this Agreement, and each Party does not have any authority of any kind to bind the other in any respect whatsoever and neither Party shall make any contracts, warranties or representations or assume or create any other obligations, express or implied in the other Party’s name or on its behalf.

(h) No Third Party Beneficiaries; Enurement. There are no third party beneficiaries to this Agreement. This Agreement shall enure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.

(i) Right to List as a Customer. Client agrees that Trufla may utilize Client’s name in listings of current customers. Use of Client’s name in any other marketing materials or press announcements will be submitted to Client in advance for approval, provided that such approval will not be unreasonably withheld or delayed.

(j) Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing:
(i) To Trufla, by email at [email protected] or by certified mail at 320 – 1331 MacLeod Trail SE, Calgary, AB T2G 0K3; or
(ii) To Client, by email or by certified mail at the addresses provided by Client through the Service. Notwithstanding the foregoing, a Party may change its address for notice under this Agreement by giving written notice to the other Party by the means set forth in this Section 13(j).

(k) Governing Law; Jurisdiction. This Agreement and any action related thereto shall be governed by the laws of the Province of Alberta, and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.

(l) Rights and Remedies. Except as specifically provided in this Agreement, the rights and remedies provided in this Agreement and all other rights and remedies available to either Party at law or in equity are, to the extent permitted by law, cumulative and not exclusive of any other right or remedy now or hereafter available at law or in equity, neither asserting a right nor employing a remedy shall preclude the concurrent assertion of any other right or employment of any other remedy.

(m) Further Assurances. Each Party will from time to time and at all times do such further acts and execute and deliver such further documents as may be reasonably required in order to evidence, carry out and give full effect to the terms, conditions, intent and meaning of this Agreement.