This Service Agreement ("Agreement") applies to the purchase
from Trine Commerce Systems, Inc. and its affiliates (collectively, "Trine
Commerce Systems, Inc.") of all services (collectively, the "Services")
selected by Customer.
This Agreement shall be for the a term of ninety days from date of activation
and will be automatically renewed, at the end of the Initial Term,
on a month to month basis unless either party provides thirty (30)
days written notice to the other of termination of this Agreement prior
to the end of the then current term. The Initial Term and all month
to month extensions thereof are collectively referred to herein as
the "Term" of this Agreement.
Fees: During the term of this
Agreement, Customer shall pay the fees for the Services
provided . Such fees may include taxes, fees or assessments
by governmental agencies and Trine Commerce Systems,
Inc. shall have the right, at any time, to pass through
and invoice to Customer any new or increased taxes, fees,
assessments or other charges imposed on or required to
be collected by Trine Commerce Systems, Inc. by any governmental
agency. Customer shall also be responsible for paying
all taxes, fees or assessments and other charges imposed
on Customer by any governmental agency that may result
from this Agreement, or any of the activities contemplated
Terms Of Payment: Invoices are
due and payable upon receipt of the monthly e-mail notice
of billing. All payments shall be made by ACH deduction
from the customer's checking account.
Service Continuation after Initial
Term: The fees set forth in application are guaranteed
during the Initial Term of this Agreement. If Customer
continues to receive the Services after the Initial
Term without entering into a new agreement or agreement
extension, the fees charged after the Initial Term
shall be at the then standard Trine Commerce Systems,
Inc. rates for such services, without discount, determined
month to month.
Suspension or Interruption of Service
for Non-Payment: In the event Customer's checking
account becomes insufficient to accept the monthly
service fee ACH draft, or is otherwise deemed insecure,
Trine Commerce Systems, Inc. may, in its sole discretion,
suspend, interrupt or disconnect the Services. In the
event of such suspension, interruption or disconnection,
Customer may be required to post a deposit or such
other security, as Trine Commerce Systems, Inc. deems
necessary in order to resume receiving the Services.
In addition, if Trine Commerce Systems, Inc. in its
sole discretion, deems Customer to be financially insecure,
Trine Commerce Systems, Inc. may require such other
action of Customer, including letters of credit, security
deposit(s), restrictions on available credit or other
action as Trine Commerce Systems, Inc. may require
from time to time regardless of Customer's then-current
status or payment history. Failure to satisfy Trine
Commerce Systems, Inc. request for such action within
timelines set by Trine Commerce Systems, Inc. may result
in immediate termination of service.
Customer shall at all times adhere to the Trine Commerce Systems, Inc.
Acceptable Use Policy as amended from time to time by Trine Commerce
Systems, Inc.. Notwithstanding anything to the contrary contained herein,
Trine Commerce Systems, Inc. may immediately take corrective action,
including disconnection or discontinuance of any and all Services,
or terminate this Agreement in the event of notice of possible violation
by Customer of the Trine Commerce Systems, Inc. Acceptable Use Policy.
In the event Trine Commerce Systems, Inc. takes corrective action due
to a violation of the Trine Commerce Systems, Inc. Acceptable Use Policy,
Trine Commerce Systems, Inc. shall not refund to Customer any fees
paid in advance of such corrective action.
Customer may terminate this Agreement by giving Trine Commerce Systems,
Inc. at least thirty (30) days prior written notice. However, Customer
remains obligated to pay all amounts remaining in the Initial Term, and
if Trine Commerce Systems, Inc. has purchased equipment on behalf of
Customer, Customer shall assume responsibility for payments for such
equipment, until paid in full.
In order to terminate early, Customer's
primary contact person on the account should notify Trine
Commerce Systems, Inc. of such request to do so. All
termination requests should be signed by Customer's primary
contact person on the account who must provide any requested
verification information to Trine Commerce Systems, Inc..
However, Trine Commerce Systems, Inc. shall not be liable
for unauthorized termination of an account.
Any termination by Trine Commerce Systems,
Inc. or Customer shall not relieve Customer of any obligations
to pay fees accrued prior to such termination. Trine
Commerce Systems, Inc. reserves the right to terminate
this Agreement without cause prior to the end of the
term upon thirty (30) days written notice to Customer.
Customer acknowledges and agrees that Trine Commerce Systems, Inc. exercises
no control over, and accepts no responsibility for, the content of the
information passing through Trine Commerce Systems, Inc. host computers,
network hubs and points of presence (the "Trine Commerce Systems,
Inc. Network") or the Internet. Neither Trine Commerce Systems,
Inc., its employees, affiliates, agents, suppliers, third party information
providers, merchants, licensors nor the like make any warranties of any
kind, either expressed or implied, including but not limited to , warranties
of merchantability or fitness for a particular purpose, or non-infringement
for the services or any equipment Trine Commerce Systems, Inc. provides.
Neither Trine Commerce Systems, Inc., its employees, affiliates, agents,
third-party information providers, merchants, licensors or the like,
warrant that the services will not be interrupted or error free; nor
do any of them make any warranty as to the results that may be obtained
from the use of the services or as to the accuracy , reliability or content
of any information services or merchandise contained in or provided through
the services. Trine Commerce Systems, Inc. is not liable for the content
or loss of any data transferred either to or from customer or stored
by customer or any of customer's clientele via the services provided
by Trine Commerce Systems, Inc.
Customer will indemnify, save harmless, and defend Trine Commerce Systems,
Inc. and all directors, officers, employees, and agents of Trine Commerce
Systems, Inc. (collectively "indemnified parties") from and
against any and all claims, damages, losses, liabilities, suits, actions,
demands, proceedings (whether legal or administrative) and expenses
(including but not limited to reasonable attorneys' fees) arising out
of or relating to the use of the Services by Customer, including any
violation of the Trine Commerce Systems, Inc. Acceptable Use Policy.
Such claims shall include, but shall not be limited to, claims based
upon trademark, service mark, trade name, copyright and patent infringement,
trademark dilution, tortuous interference with contract or prospective
business relations, unfair competition, defamation or injury to reputation,
or other injuries or damage to business.
In no event shall Trine Commerce Systems, Inc. be liable for any indirect,
incidental, special or consequential damages, or loss of profits, revenue,
data or use, suffered by customer or any third party customer, whether
in an action in contract, tort or strict liability or other legal theory
, even if Trine Commerce Systems, Inc. has been advised of the possibility
of such damages. In no event will Trine Commerce Systems, Inc. liability
for any damages, losses and causes of actions whether in contract or
tort (including negligence or otherwise) exceed the actual dollar amount
paid by Customer for the Service which gave rise to such damages, losses
and causes of actions during the 12-month period prior to the date the
damage or loss occurred or the cause of action arose. Some jurisdictions
do not allow the exclusion or limitation of warranties or incidental
or consequential damages, so that the above limitations or exclusions
may not apply to Customer. In such jurisdictions, Trine Commerce Systems,
Inc. liability (and the liability of its affiliates, agents, content
providers and service providers) shall be limited to the greatest extent
permitted by applicable law.
Trine Commerce Systems, Inc. shall not be liable for failure or delay
in performing its obligations hereunder if such failure or delay is
due to circumstances beyond its reasonable control, including, without
limitation, acts of any governmental body, war, insurrection, sabotage,
embargo, fire, flood, strike or other labor disturbance, interruption
of or delay in transportation, unavailability of or interruption or
delay in telecommunications or third party services, failure of third
party software or inability to obtain raw materials, supplies, or power
used in or equipment needed for provision of the Services.
Customer represents and warrants that Customer's use of the Services
shall not infringe the intellectual property or other proprietary rights
of Trine Commerce Systems, Inc. or any third party. Customer further
acknowledges that all right, title and interest in any and all technology,
including the software that is part of or provided with the Services
and any trademarks or service marks of Trine Commerce Systems, Inc. (collectively, "Trine
Commerce Systems, Inc. Intellectual Property") is vested in Trine
Commerce Systems, Inc. and/or in Trine Commerce Systems, Inc. licensors.
Unless otherwise specifically provided in this Agreement, Customer shall
have no right, title, claims or interest in or to the Trine Commerce
Systems, Inc. Intellectual Property. Customer may not copy, modify or
translate the Trine Commerce Systems, Inc. Intellectual Property or related
documentation, or decompile, disassemble or reverse engineer the Trine
Commerce Systems, Inc. Intellectual Property, to use it other than in
connection with the Services, or grant any other person or entity the
right to do so. Unless otherwise specifically provided in this Agreement,
Customer is not authorized to distribute or to authorize others to distribute
the Trine Commerce Systems, Inc. Intellectual Property in any manner
without the prior written consent of Trine Commerce Systems, Inc.; provided,
however, that nothing in this sentence would preclude Customer from using
the Trine Commerce Systems, Inc. Intellectual Property as incorporated
in the Services. This paragraph shall not operate to extinguish, restrict,
vary, waive or affect in any manner whatsoever any right, title or interest
which Customer may now have or hereafter acquires in, or in relation
to, the third-party software that is part of or provided with the Services
solely to the extent such third-party licensors publicly provide such
rights, title or interest in the third-party software to Customer.
Each party acknowledges that, in the course of the performance of this
Agreement, it may have access to customer information and communications,
including proprietary information claimed to be unique, secret, or confidential,
and which constitutes the exclusive property and trade secrets of the
other party ("Confidential Information"). Except as provided
in Trine Commerce Systems, Inc. Acceptable Use Policy (AUP), each party
agrees to maintain the confidentiality of the Confidential Information
and to use the Confidential Information only to the extent necessary
for legitimate business uses in connection with this Agreement. Upon
request of either party or on termination or expiration of this Agreement,
each party shall return the Confidential Information of the other party
then in its possession. Nothing in this Agreement shall prohibit or limit
either party's use of information which (a) is now, or hereafter becomes,
publicly known or available through lawful means; (b) is rightfully in
receiving party's possession, as evidenced by receiving party's records;
(c) is disclosed to the receiving party without confidential or proprietary
restriction by a third party who rightfully possesses and rightfully
discloses the information; (d) is independently developed by the receiving
party without any breach of this Agreement; (e) is the subject of a written
permission to disclose provided by the disclosing party; or (f) is required
by law to be disclosed.
Customer further agrees and acknowledges
that Trine Commerce Systems, Inc. may disclose Customer
account information in accordance with Trine Commerce
time to time by Trine Commerce Systems, Inc.
The validity, interpretation, enforceability,
and performance of this Agreement shall be governed
by and construed in accordance with the laws of the
State of Texas. Regardless of the place of signing
of this agreement, the Client agrees that for purposes
of venue, this contract was entered into in Travis
County, Texas, and any dispute will be litigated or
arbitrated in Travis County, Texas.
Enforcement of Agreement
In the event it is necessary for Trine Commerce Systems,
Inc. to enforce its rights under this agreement, Customer
agrees to pay all fees incurred by Trine Commerce Systems,
Inc. (including, but not limited to, attorney's fees
and collection agency fees)
Except as otherwise provided herein, this Agreement may not be amended
except upon the written consent of Customer and an officer of Trine Commerce
Systems, Inc.. No failure to exercise and no delay in exercising any
right, remedy, or power hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, remedy, or power
hereunder preclude any other or further exercise thereof or the exercise
of any other right, remedy, or power provided herein or by law or in
equity. The waiver by any party of the time for performance of any act
or condition hereunder shall not constitute a waiver of the act or condition
This Agreement shall be binding upon and inure to the benefit of Customer,
Trine Commerce Systems, Inc. and our respective successors, and assigns.
Customer may not assign this Agreement without the prior written consent
of Trine Commerce Systems, Inc., which consent will not be unreasonably
withheld. If any provision of this Agreement shall be held by a court
of competent jurisdiction to be invalid, unenforceable, or void, the
remainder of this Agreement shall remain in full force and effect.
All notices to Customer hereunder shall be given at the billing address
provided in their application. All notices to Trine Commerce Systems,
Inc. shall be given to:
Trine Commerce Systems, Inc.
Post Office Box 684333
Austin, Texas 78768-4333
Any notice hereunder shall be in writing
and shall be given by registered, certified or Express
mail, US Postal Service or reliable courier addressed
to the addresses in this Agreement, or by facsimile.
Notice shall be deemed to be given upon the earlier of
actual receipt or three (3) days after it has been sent,
properly addressed and with postage prepaid.
This Agreement, and any other document or agreements specifically identified
in this Agreement, supercedes all previous representations, understandings
Acceptance of the agreement by Trine Commerce Systems, Inc. may be subject,
in Trine Commerce Systems, Inc. absolute discretion, to satisfactory
completion of a credit check and continued credit worthiness of customer.
Activation of service shall indicate Trine Commerce Systems, Inc. acceptance
of this agreement. Use of the Trine Commerce Systems, Inc. network constitutes
acceptance of this agreement. Customer represents and warrants that customer
has full authority and right to enter into this agreement. Customer further
represents and warrants that customer is at least 18 years of age.