These Tarsal Terms of Service (“Agreement”) are entered into by and between Rekhi Corp, Inc. (“Tarsal”) and the entity or person placing an order for or accessing the Tarsal Hosted Services (“Customer” or “you”). This Agreement consists of the terms and conditions set forth below, any terms referenced herein, and any Tarsal service orders, online sign-up, or subscription flow that references this Agreement (the “Service Order”). If you are accessing or using the Tarsal Hosted Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company.
Please note that Tarsal may modify the terms and conditions of this Agreement in accordance with Section 13 (Modification of this Agreement).
THIS AGREEMENT CONTAINS A BINDING, INDIVIDUAL ARBITRATION AND CLASS-ACTION WAIVER PROVISION. IF YOU ACCEPT THESE TERMS, YOU AND TARSAL AGREE TO RESOLVE DISPUTES IN BINDING, INDIVIDUAL ARBITRATION AND EACH GIVE UP THE RIGHT TO GO TO COURT INDIVIDUALLY OR AS PART OF A CLASS ACTION (SEE SECTION 19, BELOW).
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE TARSAL HOSTED SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE TARSAL HOSTED SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
1. Tarsal Hosted Services Overview
The “Tarsal Hosted Services” is a technology platform that allows you to manage, monitor and automate your data integration pipelines through use of one or more Tarsal Connector along with related services. The “Tarsal Connectors” are those source connectors and destination connectors listed on our website located at cloud.tarsal.co, as well as any custom connectors we may agree to build for you. Additional descriptions concerning the functionality of the Tarsal Hosted Services are available at tarsal.co (the “Site”).
2. General Eligibility Requirements
a. The individual signing on behalf of the Customer represents and warrants that he/she has the authority to bind the Customer to the Agreement. By accepting this Agreement, Customer represents and warrants to us: (i) that the Customer, if an individual, is at least 18 years of age; (ii) that the Customer has not previously been suspended or removed from using any portion of the Tarsal Hosted Services; and (iii) that the Customer's registration and use of Tarsal Hosted Services is, and will continue to be, in compliance with any and all applicable laws and regulations. Moreover, Customer may not access the Tarsal Hosted Services if Customer is located in a territory where U.S. businesses are prohibited from engaging in business (such as Cuba, Iran, North Korea, Sudan, or Syria) or if the Customer has been designated a Specially Designated National, Denied Person, or Denied Entity by the U.S. government.
b. Beta Releases and Features. Tarsal may provide you with “alpha”, “beta”, or other early-stage components of the Tarsal Hosted Services, connectors, integrations, or features (“Beta Releases”). Tarsal makes no promises that future versions of Beta Releases will be released or will be made available under the same commercial terms. Tarsal may terminate your right to use any Beta Releases at any time in Tarsal's sole discretion, without liability and without prior notice. WITH RESPECT TO BETA RELEASES, CUSTOMER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, SECURITY VULNERABILITIES, AND OTHER PROBLEMS FOR WHICH TARSAL WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF BETA RELEASES IS AT CUSTOMER'S SOLE RISK NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN.
c. Use Outside of the United States. Tarsal and the Tarsal Hosted Services are operated from the United States. Tarsal does not make any representations or warranties that the Tarsal Hosted Services will meet all of the legal and/or regulatory requirements of any non-U.S. jurisdiction and Tarsal expressly disclaims all liability in connection with the foregoing.
d. Modification of the Tarsal Hosted Services. We reserve the right to modify or discontinue the Tarsal Hosted Services at any time (including, without limitation, by limiting or discontinuing certain features of the Tarsal Hosted Services) without notice to you. If you have paid access to the Tarsal Hosted Services and such changes materially and adversely impact your use of the Tarsal Hosted Services, you may terminate this Agreement, and Tarsal shall provide you with a refund of any prepaid fees applicable to Tarsal Hosted Services not yet received.
e. Additional Terms. Your use of certain features of Tarsal Hosted Services may be subject to additional terms and conditions that Tarsal will disclose to you through the Tarsal Hosted Services or that you otherwise acknowledge as part of your usage of any applicable software or applications related to the Tarsal Hosted Services (the “Additional Terms”), such terms and conditions for any of this software or applications that Tarsal may offer and service level agreements concerning the Tarsal Hosted Services (“SLAs”).
5. Fees and Payment
You agree to pay the fees set forth in the applicable Service Order. Our third-party payment services providers may charge additional fees for the use of their services, including fees in connection with cross-border monetary transactions. Before you are required to pay any fees, you will have an opportunity to review and accept the applicable fees that you will be charged, including the time-period in which those fees will be charged. All fees are in U.S. Dollars and are non-refundable. Tarsal or its third-party payment service providers may change any fees, including by adding fees, on a going-forward basis at any time. Tarsal or its third-party payment service providers will charge the payment method you specify at the time of purchase (the “Payment Method”), which you represent and warrant that you are authorized to use. You authorize Tarsal to charge all sums described in your Service Order to that Payment Method. If you pay any applicable fees with a credit card, Tarsal may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. If your account does not have sufficient funds or your credit card declines a charge for the fees due, Tarsal may refuse your use and access to Tarsal Hosted Services.
Fees do not include taxes, levies, duties, or similar governmental assessments of any nature (“Taxes”). The customer is responsible for paying all Taxes associated with its purchases hereunder. If Tarsal has the legal obligation to pay or collect Taxes for which the customer is responsible under this Section, Tarsal will invoice the customer, and the customer will pay that amount unless the customer provides Tarsal with a valid tax exemption certificate authorized by the appropriate taxing authority. Taxes will not be deducted from payments to Tarsal, except as required by applicable law, in which case the customer will increase the amount payable as necessary so that, after making all required deductions and withholdings, Tarsal receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. Upon Tarsal's request, the customer will provide to Tarsal its proof of withholding tax remittance to the respective tax authority. Where applicable, the customer will provide its VAT/GST Registration Number(s) on the Service Order to confirm the business use of the ordered services.
6. Billing Subscription; Automatic Renewal
If you are on a billing subscription plan, your subscription is subject to auto-renewal on the same terms and subscription length set forth in the Service Order unless and until you cancel your subscription or Tarsal terminates it. Your Payment Method will be charged automatically upon the next renewal of your subscription all applicable fees for the next subscription period. You must cancel your subscription before the end of each subscription period in order to avoid billing of the next periodic subscription fees to your Payment Method. Tarsal will bill the periodic subscription fee to the Payment Method you provide to Tarsal during registration (or to a different Payment Method if you change your account information).
7. Free Trials; Discounts
Tarsal may make available trials (for duration indicated from time to time by Tarsal) for access to the Tarsal Hosted Services without charge to you (each a "Free Trial"). Moreover, from time to time, Tarsal may offer you discounts or other credits based on campaigns Tarsal may run from time to time (e.g., customer referral credits, discounts on annual renewals, etc.) (each a "Promotion"). You will be required to create an Account for the Tarsal Hosted Services in order to register for a Free Trial or Promotion. If you wish to continue using the Tarsal Hosted Services at the end of the Free Trial, you will be required to enter a payment method which will be charged in accordance with Sections 5 and 6. If you cancel your Account, any rights to any Promotion shall automatically terminate.
8. Prohibited Conduct
By using the Site or the Tarsal Hosted Services, you agree not to:
a. use the Tarsal Hosted Services for any illegal purpose, or in violation of any local, state, national, or international law;
b. violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights;
c. copy, modify or distribute the Tarsal Hosted Services (unless otherwise expressly permitted by Tarsal); or remove any copyright, trademark or other proprietary rights notices contained in or on the Tarsal Hosted Services or any content made available on or through the Tarsal Hosted Services;
d. interfere with security-related features of the Tarsal Hosted Services, including without limitation 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 the Tarsal Hosted Services or any part thereof except to the extent that such activity is expressly permitted by applicable law;
e. interfere with the operation of the Tarsal Hosted Services or any other user's use of the Tarsal Hosted Services, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other users of the Tarsal Hosted Services, (iii) attempting to collect, personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Tarsal Hosted Services, or violating the regulations, policies, or procedures of those networks, equipment, or servers;
f. perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Tarsal Hosted Services accounts of others without permission, or falsifying your age or date of birth;
g. sell or otherwise transfer the access granted herein or any Materials (as defined in Section 14 below) or any right or ability to view, access, or use any Materials; or
h. attempt to do any of the foregoing in this Section 8, or assist or permit any persons in engaging in any of the activities described in this Section 8.
9. Linked Sites and Community-Developed Services
The Tarsal Hosted Services may include links to other websites or services ("Linked Sites") solely as a convenience to you and other users (e.g., links to third-party websites where your data is stored, etc.). The Tarsal Hosted Services may provide tools that enable the importation and/or exportation of your information to Linked Sites. By using these tools, you agree that Tarsal may transfer such information to the applicable Linked Sites. Linked Sites are not under our control, Tarsal is not responsible for their use of your imported or exported information. Customer acknowledges that your use of any Linked Sites may be subject to additional third party terms and conditions. Tarsal makes no express or implied warranties with regard to any information, materials, products, or services that are contained on or accessible through Linked Sites. ACCESS AND USE OF LINKED SITES IS SOLELY AT YOUR OWN RISK.
Each party may terminate this Agreement in the event the other party materially breaches the Agreement and such breach remains uncured for thirty (30) days from receipt of notice from the non-breaching party.
If Tarsal terminates this Agreement due to a breach by you of this Agreement, any prepaid fees shall be wholly non-refundable. If you terminate this Agreement due to a material breach by Tarsal, you shall receive a pro-rata refund of any prepaid fees for Tarsal Hosted Services not yet received.
You may terminate your Account in accordance with the applicable Service Order by contacting customer service at email@example.com. If you terminate your Account, you will remain obligated to pay all outstanding fees, if any, relating to your use of the Tarsal Hosted Services incurred prior to termination and any prepaid fees shall be wholly non-refundable except as expressly set forth herein.
Upon any termination or expiration of this Agreement, whether by you or Tarsal, any information that you have submitted or uploaded on or through the service or that which is related to your Account may no longer be accessed by you and Tarsal will have no obligation to maintain any information in its databases or to forward any information to you or any third party. Upon any termination of this Agreement, any provision that by its nature or express terms should survive will survive such termination or expiration.
11. Feedback; OS Contributions.
If you provide any comments, suggestions, or other feedback to Tarsal regarding the Tarsal Hosted Services ("Feedback"), you acknowledge that the Feedback is not confidential, and you authorize Tarsal to use that Feedback without restriction and without payment to you. Accordingly, you hereby grant to Tarsal a nonexclusive, royalty-free, fully-paid, perpetual, irrevocable, transferable, and fully sublicensable right to use and otherwise freely exercise and exploit the Feedback in any manner and for any purpose.
12. Customer Data.
a. Protections for Customer Data; Personal Data. Excluding Registration Information, Customer owns any data and information it integrates via data pipelines connected through the Tarsal Connectors ("Customer Data"). Customer hereby grants to Tarsal a non-exclusive, worldwide, royalty-free, fully paid-up, sublicensable (through multiple tiers) right and license during the term of the Agreement to use the Customer Data strictly to perform Tarsal's obligations under this Agreement, including to provide the Tarsal Hosted Services and to ensure the Tarsal Hosted Services are working as intended. Tarsal treats any Customer Data as Customer confidential information. Tarsal will implement commercially reasonable efforts at all times to protect Customer Data from unauthorized use, access, or disclosure in the same manner that Tarsal uses to protect its own confidential information of a similar nature. You are solely responsible for obtaining all rights, consents, and permissions necessary for Tarsal to process Customer Data in connection with the Tarsal Hosted Services. To the extent that Customer Data includes any information that reasonably relates, directly or indirectly, to an identified or identifiable natural person ("Personal Data"), the parties agree to comply with their respective obligations under the Tarsal Data Processing Addendum, which is hereby incorporated into this Agreement.
b. Special Data. In the event that Customer intends to integrate any Customer Data considered to be sensitive or otherwise subject to specific protections under applicable laws exceeding any requirements that apply to Personal Data generally, such as, for illustrative purposes, information that is regulated by the Health Information Portability and Accountability Act ("HIPAA"), the Payment Card Industry Data Security Standard ("PCI DSS"), the Gramm-Leach-Bliley Act ("GLBA"), and other U.S. federal, state, or foreign laws applying specific security standards (collectively, "Special Data"), Customer shall evaluate whether the technical and organizational measures described in the Data Processing Addendum are sufficient to protect Special Data. Customer shall not integrate any Special Data to the Tarsal Hosted Services if Customer determines that such technical and organizational measures are insufficient to protect Special Data in accordance with applicable laws.
c. Usage Data. Customer agrees that Tarsal has the right to aggregate, collect, and analyze data and information relating to the Tarsal Hosted Services ("Usage Data") and shall be free (during and after the term hereof) to (i) use Usage Data and other information to improve Tarsal's products and services, and (ii) disclose Usage Data and other information solely in an aggregated and de-identified format that does not identify Customer or any individual.
13. Modification of this Agreement.
Tarsal may update the terms and conditions of this Agreement (which may include changes in pricing and plans) from time to time with prior notice to Customer in accordance with notice provisions in Section 19. If updated, the updated version of this Agreement will be emailed to all registered users. Following such notice, your continued use of the Tarsal Hosted Services on or after the date the updated version of this Agreement is effective and binding, as indicated at the top of this Agreement, constitutes your acceptance of the updated version of this Agreement. If you do not agree to the updated version of this Agreement, you must stop using the Tarsal Hosted Services immediately, and if you are using a paid version of the Tarsal Hosted Services, you may elect to receive a pro-rata refund of any prepaid fees applicable to Tarsal Hosted Services not yet received. The updated version of this Agreement supersedes all prior versions. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. Waivers must be made in writing and executed by an authorized representative of the waiving party.
14. Ownership; Proprietary Rights.
The Tarsal Hosted Service is owned and operated by Tarsal. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Tarsal Hosted Services ("Materials") provided by Tarsal (through use and access to the Tarsal Hosted Services or otherwise) are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Tarsal Hosted Services are the property of Tarsal. Tarsal reserves all rights to the Materials not expressly granted in this Agreement.
a. Indemnity by Tarsal. Tarsal agrees to defend, indemnify, and hold harmless you and your officers, directors, employees, consultants, affiliates, subsidiaries, and agents from and against all third-party claims, liabilities, damages, losses, and expenses, including reasonable attorneys' fees and costs, arising out of or in any way connected with infringement by the Tarsal Hosted Services of any U.S. patent, copyright, trademark, or trade secret. In response to any claim or potential claim of infringement, if required by settlement or injunction, or if Tarsal determines these actions are reasonably necessary to avoid material liability, Tarsal may at its option: (i) procure a license for the affected portion of the Tarsal Hosted Services; (ii) modify the Tarsal Hosted Services so as to avoid infringement but be materially equivalent; or (iii) terminate the Service Order for the affected Tarsal Hosted Services and refund any fees you have pre-paid for Tarsal Hosted Services not yet received. Notwithstanding the above, Tarsal's obligations under this Section do not apply to the extent infringement results from: (a) modification of the Tarsal Hosted Service by someone other than Tarsal or its subcontractors; or (b) combination of the Tarsal Hosted Service with other third-party services where the Tarsal Hosted Service would not by itself be infringing. In addition, Tarsal's obligations under this Section shall not apply to the extent you are using a Free Trial or Beta Releases. THIS SECTION STATES YOUR SOLE AND EXCLUSIVE REMEDY OF AND THE ENTIRE LIABILITY OF TARSAL, OR ANY OF ITS SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, CONTRACTORS OR REPRESENTATIVES, WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.b. Indemnity by You. You agree that you will be responsible for your use of the Tarsal Hosted Services, and you agree to defend, indemnify, and hold harmless Tarsal and its officers, directors, employees, consultants, affiliates, subsidiaries, and agents (collectively, the “Tarsal Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys' fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Tarsal Hosted Services; (ii) your violation of this Agreement or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party.c. Indemnification Procedures. Each party's defense and indemnification obligations are subject to the indemnifying party receiving: (i) prompt written notice of a claim; (ii) the exclusive right to control and direct the investigation, defense, and settlement of the claim; and (iii) all reasonable necessary cooperation of the indemnified party at the indemnifying party's expense (as to reasonable out-of-pocket costs). The indemnifying party must not settle any claim without the indemnified party's prior written consent if the settlement would require the indemnified party to admit fault, pay amounts that the indemnifying party must pay under this Section, or take or refrain from taking any action. The indemnified party may participate in a claim through counsel of its own choosing at its own expense.
16. Publicity Rights.
We may identify you as a Tarsal customer in our website and other marketing materials. We will promptly stop doing so upon your request sent to firstname.lastname@example.org.
17. Warranty Disclaimers.
a. TO THE EXTENT PERMITTED BY LAW, THE TARSAL HOSTED SERVICES, ANY OTHER MATERIAL, AND ALL CONTENT RELATED THERETO ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND TARSAL MAKES NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, INFRINGEMENT, TITLE, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE. SPECIFICALLY AND WITHOUT LIMITING THE FOREGOING IN ANY WAY, TARSAL SPECIFICALLY DISCLAIMS ANY WARRANTY OR CONDITION: (i) THAT ANY SERVICE OR PRODUCT OFFERED BY TARSAL WILL MEET ANY PARTICULAR REQUIREMENTS, INCLUDING THAT SUCH SERVICES AND PRODUCTS SHALL BE FREE OF SECURITY VULNERABILITIES; (ii) THAT SERVICES OR PRODUCTS OFFERED BY TARSAL WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR THAT ANY DEFECTS IN ANY PRODUCT WILL BE CORRECTED; OR (iii) RELATING TO THE ACCURACY OR RELIABILITY OF THE RESULTS OBTAINED THROUGH YOUR USE OF THE TARSAL HOSTED SERVICES, ANY MATERIALS OR ANY COMMUNICATIONS, DATA, INFORMATION, OR CONTENT DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF ANY OF THE FOREGOING. THE PARTIES AGREE, AND IT IS THEIR INTENTION, THAT IN NO EVENT SHALL ANY WARRANTY PROVIDED BY LAW APPLY UNLESS REQUIRED TO APPLY BY APPLICABLE STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. TO THE EXTENT THAT TARSAL CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.b. SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT TARSAL CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
18. Limitation of Liability
a. IN NO EVENT WILL TARSAL BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE TARSAL HOSTED SERVICES OR ANY MATERIALS OR CONTENT WITHIN THE TARSAL HOSTED SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE TARSAL ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. b. YOU AGREE THAT THE AGGREGATE LIABILITY OF THE TARSAL ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE THE TARSAL HOSTED SERVICES (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (I) THE AMOUNTS YOU HAVE PAID TO TARSAL FOR ACCESS TO AND USE OF THE TARSAL HOSTED SERVICES IN THE 6 MONTHS PRIOR TO THE CLAIM OR (II) $50. c. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES. 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 THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
19. Governing Law; Forum.
This Agreement shall be governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder (and not deemed subject to arbitration pursuant to Section 19), you and Tarsal agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco, California for the purpose of litigating all disputes.
20. Dispute Resolution US and Canadian Residents.
If there is a dispute, our user support team is happy to try to resolve the issue. If that does not work and your principal place of business is in the United States or Canada, your options in the case of a dispute arising out of or related to this Agreement are to (a) go to small claims court (if applicable) or (b) bring a claim in binding arbitration as described in this Section 19; you may not bring that claim in another court or participate in a non-individual class action claim against Tarsal. This Dispute Resolution section applies only if Customer that have a principal place of business in the United States or Canada or, if the Customer is an individual, if you live in the United States or Canada. For all other Customers, Section 20 hereof shall apply in lieu of this Section 19.
a. Small Claims. Either of the parties can bring a claim in small claims court in (a) San Francisco, California, (b) the county where you live, or (c) another place the parties both agree on, as long as it qualifies to be brought in that court. b. Arbitration. If any dispute cannot be resolved amicably and informally and a small claims action is not initiated, Tarsal and you agree to resolve any claims related to these Terms (or our other legal terms) through final and binding arbitration, regardless of the type of claim or legal theory. If one of the parties brings a claim in court that should be arbitrated and the other party refuses to arbitrate it, the other party can ask a court to force both parties to go to arbitration (compel arbitration). Either party can also ask a court to halt a court proceeding while an arbitration proceeding is ongoing. With respect to any arbitration proceeding the following process shall be followed: i. Any disputes involving a claim or claims of ten thousand dollars ($10,000) or less, in the aggregate must be resolved through binding, non-appearance-based arbitration (i.e., arbitration conducted online, through written filings, and/or via teleconference) (each a "Sub 10K Arbitration"). ii. Any Sub 10K Arbitration shall be conducted through the American Arbitration Association (the "AAA") in accordance with its Commercial Arbitration Rules, Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer-Related Disputes. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. iii. The following rules will apply to any Sub 10K Arbitration: (a) the arbitration will be conducted by telephone, online, or based solely on written submissions (at the choice of the party seeking relief); (b) the arbitration must not involve any personal appearance by the parties or witnesses (unless Tarsal and you agree otherwise); and (c) any judgment on the arbitrator's rendered award may be entered in any court with competent jurisdiction. iv. Disputes that involve a claim (or claims) of more than ten thousand dollars ($10,000) in the aggregate must be resolved per the AAA's rules about whether the arbitration hearing has to be in-person. To the extent permitted by the AAA's applicable rules, upon your request Tarsal will agree to conduct the arbitration by telephone or online. v. Any judgment rendered by the arbitrator in any arbitration proceeding may be entered in any court having jurisdiction and the arbitrator's decision shall be final and legally binding. c. No Class Actions. Tarsal and you each agree that each party can only bring claims against the other on an individual basis. This means: (a) neither party can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action; (b) an arbitrator cannot combine multiple people's claims into a single case (or preside over any consolidated, class, or representative action); and (c) an arbitrator's decision or award in one person's case can only impact that user, not other users, and can't be used to decide other users' disputes. If a court decides that this "No class actions" clause isn't enforceable or valid, then this entire Dispute Resolution for US and Canadian Residents section will be null and void, but the rest of the Terms will still apply and the Dispute Resolution for non-US and non-Canadian Residents of these Terms shall apply instead to you with respect to dispute resolution as if you were not a resident of the United States or Canada. d. Changes to this Section. Notwithstanding the terms of Section 13 of this Agreement, if Tarsal changes this Dispute Resolution for US and Canadian Residents section after the date you entered into this Agreement or accepted an updated version of this Agreement pursuant to Section 13 (whichever is later), you may reject any such change by providing Tarsal written notice of such rejection by email from the email address associated with your account to: email@example.com, within 30 days of the date such change became effective in accordance with Section 13. To be effective, the notice must include your full name (or the full name of the entity on whose behalf you are submitting the notice) and clearly indicate your intent to reject changes to this Dispute Resolution for US and Canadian Residents section. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and Tarsal in accordance with the provisions of this Dispute Resolution for US and Canadian Residents section as of the date you entered into this Agreement or accepted an updated version of this Dispute Resolution for US and Canadian Residents section pursuant to Section 13 and this Section 19 (whichever is later).
18. Limitation of Liability
a. IN NO EVENT WILL TARSAL BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE TARSAL HOSTED SERVICES OR ANY MATERIALS OR CONTENT WITHIN THE TARSAL HOSTED SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE TARSAL ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
b. YOU AGREE THAT THE AGGREGATE LIABILITY OF THE TARSAL ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE THE TARSAL HOSTED SERVICES (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (I) THE AMOUNTS YOU HAVE PAID TO TARSAL FOR ACCESS TO AND USE OF THE TARSAL HOSTED SERVICES IN THE 6 MONTHS PRIOR TO THE CLAIM OR (II) $50.
c. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES. 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 THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
19. Governing Law; Forum
This Agreement shall be governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder (and not deemed subject to arbitration pursuant to Section 19), you and Tarsal agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco, California for the purpose of litigating all disputes.
20. Dispute Resolution US and Canadian Residents
If there is a dispute, our user support team is happy to try to resolve the issue. If that does not work and your principal place of business is in the United States or Canada, your options in the case of a dispute arising out of or related to this Agreement are either to (a) contact us at firstname.lastname@example.org to attempt to negotiate an informal resolution; or (b) submit to binding arbitration in accordance with the terms and conditions set forth below.
Data Processing Addendum
This Data Processing Addendum (“DPA”) amends and forms part of the written agreement between Customer and Rekhi Corp. (“Tarsal”) (collectively, “the parties”) for the provision of services to Customer (the “Agreement”). This DPA prevails over any conflicting term of the Agreement but does not otherwise modify the Agreement.
1.1. In this DPA:
a. “Data Protection Law” means all laws that apply to the Processing of Personal Data under the Agreement, including the laws and regulations of the United States and its states, as amended from time to time, to the extent such laws and regulations apply to the relevant party.
b. “European Data Protection Law” means the General Data Protection Regulation (EU) 2016/679 ("GDPR") and all other privacy and data protection laws of the European Economic Area (“EEA”), and their respective Member States, Switzerland and the United Kingdom (“UK”) and all laws implementing or supplementing the foregoing.
c. “Personal Data” means any information that reasonably relates, directly or indirectly, to an identified or identifiable natural person that Tarsal may Process on Customer's behalf in performing the services under the Agreement.
d. “Processing” (including its cognate "Process”) means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
e. “Security Incident” means a breach of security leading to the unauthorized or unlawful access by a third party, or confirmed accidental or unlawful destruction, loss or alteration, of Personal Data.
f. “Standard Contractual Clauses” means (i) Module 2 of the Standard Contractual Clauses for the transfer of Personal Data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and the Council approved by European Commission Implementing Decision (EU) 2021/914 of 4 June 2021, as currently set out at https://eurlex.europa.eu/eli/dec_impl/2021/914/oj (the “EU SCCs”), and (ii) where the UK GDPR applies, the EU SCCs as supplemented by the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses issued by the Commissioner under S119A(1) Data Protection Act 2018 (the “UK SCCs”).
1.2 Capitalized terms used but not defined herein have the meaning given to them in the Agreement.
2. Scope and Roles
2.1 The subject matter, nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects are set out in Annex I.
2.2 Tarsal agrees that it will Process Personal Data only in accordance with the Agreement and this DPA. To the extent applicable, Tarsal will Process Personal Data as a “processor” or “service provider” as such terms are defined under applicable Data Protection Law.
3. Data Protection
3.1 When Tarsal Processes Personal Data, it will:
a. Process the Personal Data in accordance with Customer's documented instructions as described in the Agreement or this DPA. Tarsal will notify Customer if it considers that an instruction from Customer is in breach of Data Protection Law, unless it is prohibited from doing so by law on important grounds of public interest;
b. assist Customer, taking into account the nature of the Processing and the information available to Tarsak, in complying with Customer's obligations to respond to requests concerning Personal Data from individuals under applicable Data Protection Law;
c. implement and maintain appropriate physical, technical and organizational measures to ensure a level of security appropriate to the risk, which include the technical and organizational measures required by applicable Data Protection Law;
d. only entrust the Processing of Personal Data to personnel who have undertaken to comply with confidentiality requirements; and
e. upon termination of the Agreement, as instructed by Customer, to the extent that Tarsal retains Personal Data, permit Customer to delete or obtain copies of such Personal Data consistent with the functionality of the Services and applicable law.
3.2 Tarsal certifies that it will not (a) “sell” (as defined in Data Protection Law) the Personal Data; (b) retain, use, or disclose the Personal Data for any purpose other than as permitted under this DPA and in accordance with the Agreement; or (c) retain, use, or disclose the Personal Data other than in the context of the direct relationship with Customer in accordance with the Agreement.
7. Term and Termination
7.1 This DPA will become effective on the effective date of the Agreement and will continue until the termination or expiration of the Agreement.
8. Governing Law and Jurisdiction
8.1 This DPA will be governed by and construed in accordance with the laws of the Republic of Ireland without regard to its conflict of laws principles.
8.2 The parties agree that any action or proceeding arising out of or relating to this DPA will be venued in the courts of the Republic of Ireland.
9.1 This DPA, including its Annexes, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter.
9.2 No modification, amendment, or waiver of any provision of this DPA will be effective unless in writing and signed by authorized representatives of both parties.
9.3 If any provision of this DPA is held invalid or unenforceable, the remainder of this DPA will continue in full force and effect.
9.4 This DPA may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
9.5 The rights and remedies provided by this DPA are cumulative and in addition to any other rights or remedies provided by law.
9.6 The headings in this DPA are for convenience only and will not affect the interpretation of this DPA.
7. Assistance and Notifications
7.1 Upon Customer's request, Tarsal will provide Customer with reasonable cooperation and assistance to the extent required to fulfill Customer's obligation under European Data Protection Law to:
a. reply to investigations and inquiries from data protection regulators; and
b. carry out a data protection impact assessment related to the services, where Client does not otherwise have access to the relevant information necessary to perform such assessment.
7.2 Unless prohibited by Data Protection Law, Tarsal must inform Customer without undue delay if Tarsal:
a. receives a request, complaint or other inquiry regarding the Processing of Personal Data;
b. receives a binding or non-binding request to disclose Personal Data from law enforcement, courts or any government body;
c. is subject to a legal obligation that requires Tarsal to Process Personal Data in contravention of Customer's instructions; or
d. is otherwise unable to comply with Data Protection Law or this DPA.
7.3 Upon becoming aware of a Security Incident, Tarsal will inform Customer without undue delay and will provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Customer to allow Customer to fulfill its data breach reporting obligations under applicable Data Protection Law.
8.1 Tarsal will make available to Customer at Customer's request information which is necessary to demonstrate compliance with this DPA and allow for any audits, including inspections, conducted by Customer or another auditor, as requested by Customer.
8.2 To the extent Tarsal makes available to Customer confidential summary reports ("Audit Report") prepared by third-party security professionals, Customer agrees to accept such Audit Report, subject to confidentiality requirements, in satisfaction of its audit right; however, if Customer can demonstrate that it requires additional information, beyond the Audit Report, then Customer may request, at Customer's cost, Tarsal to provide for an audit subject to reasonable confidentiality procedures, which will:
(i) not include access to any information that could compromise confidential information relating to other Tarsal customers or suppliers, Tarsal's technical and organizational measures, or any trade secrets; and
(ii) be performed upon not less than thirty (30) days' notice, during regular business hours and in such a manner as not to unreasonably interfere with Tarsal's normal business activities.
9.1 If there is any conflict between this DPA and the Agreement, this DPA will prevail to the extent of that conflict in connection with the Processing of Personal Data.
9.2 If any provision of this DPA is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, then the invalidity or unenforceability of such provision does not affect any other provision of this DPA and all provisions not affected by such invalidity or unenforceability will remain in full force and effect.
9.3 Notwithstanding anything to the contrary in the Agreement or this DPA, the liability of each party under this DPA is subject to the limitations of liability set out in the Agreement.
9.4 This DPA will be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement.
Customer is the controller and the data exporter, and Tarsal is the processor and the data importer.
Tarsal's provision of the services to Customer.
Personal Data will be retained only transiently or for a short duration to transmit the Personal Data from Customer's chosen source to Customer's chosen destination. Tarsal will process Customer Personal Data for the purposes of providing the services to Customer under the agreement.
As and when the services are used.
Any Personal Data selected by Customer in connection with Customer's use of the services.
The services are not intended to process special categories of data.
Any data subjects of the Personal Data selected by Customer.
The processing of Customer Personal Data by Tarsal is for the purpose of providing the services to the Customer under the agreement.
C. COMPETENT SUPERVISORY AUTHORITY
The competent supervisory authority is the Irish Data Protection Commission.
Physical access control
Technical and organizational measures to prevent unauthorized persons from gaining access to the data Processing systems available in premises and facilities (including databases, application servers and related hardware), where Personal Data are Processed, include: (a) establishing security areas, restriction of access paths; (b) establishing access authorizations for employees and third parties; (c) access control system (ID reader, magnetic card, chip card); (d) key management, card-keys procedures; (e) door locking (electric door openers etc.); (f) security staff, janitors; (g) surveillance facilities, video/CCTV monitor, alarm system; and (h) Securing decentralized data Processing equipment and personal computers.
Virtual access control
Technical and organizational measures to prevent data Processing systems from being used by unauthorized persons include: (a) user identification and authentication procedures; (b) ID/password security procedures (special characters, minimum length, change of password); (c) automatic blocking (e.g. password or timeout); (d) monitoring of break-in-attempts and automatic turn-off of the user ID upon several erroneous passwords attempts; (e) creation of one master record per user, user-master data procedures per data Processing environment; and (f) encryption of archived data media.
Data access control
Technical and organizational measures to ensure that persons entitled to use a data Processing system gain access only to such Personal Data in accordance with their access rights, and that Personal Data cannot be read, copied, modified or deleted without authorization, include: (a) internal policies and procedures; (b) control authorization schemes; (c) differentiated access rights (profiles, roles, transactions and objects); (d) monitoring and logging of accesses; (e) disciplinary action against employees who access Personal Data without authorization; (f) reports of access; (g) access procedure; (h) change procedure; (i) deletion procedure; and (j) encryption.
Technical and organizational measures to ensure that Personal Data cannot be read, copied, modified or deleted without authorization during electronic transmission, transport or storage on storage media (manual or electronic), and that it can be verified to which companies or other legal entities Personal Data are disclosed, include: (a) encryption/tunneling; (b) logging; and (c) transport security.
Technical and organizational measures to monitor whether Personal Data have been entered, changed or removed (deleted), and by whom, from data Processing systems, include: (a) logging and reporting systems; and (b) audit trails and documentation.
Control of instructions
Technical and organizational measures to ensure that Personal Data are Processed solely in accordance with the instructions of the Controller include: (a) unambiguous wording of the contract; (b) formal commissioning (request form); and (c) criteria for selecting the Processor.
Technical and organizational measures to ensure that Personal Data are protected against accidental destruction or loss (physical/logical) include: (a) backup procedures; (b) mirroring of hard disks (e.g. RAID technology); (c) uninterruptible power supply (UPS); (d) remote storage; (e) antivirus/firewall systems; and (f) disaster recovery plan.
Technical and organizational measures to ensure that Personal Data collected for different purposes can be Processed separately include: (a) separation of databases; (b) “internal Customer” concept / limitation of use; (c) segregation of functions (production/testing); and (d) procedures for storage, amendment, deletion, transmission of data for different purposes.