Date of Last Revision: March 24, 2015
Your use of Trifectix’s websites www.orcaconfig.com and our various application sites (the “Site“) which includes the Site’s content, software, products and services is subject to the terms of this legal agreement between You and Trifectix.
“Trifectix” means Trifectix, Inc., whose principal place of business is at 13706 Research Blvd., Suite 307, Austin, TX 78750 United States.
The terms “You” or “Your” will refer to You in Your individual capacity, and if applicable, the company or other business entity whom You represent and on whose behalf You use the Site under actual or apparent authority.
These Terms form a legally binding agreement between You and Trifectix with respect to Your use of the Site and its content, software, products and services. It is important that You take the time to read them carefully.
By accessing the Site You agree that You have read, understood, accept and agree to be bound by these Terms. If You do not agree to these Terms, You are not permitted to, and You must not, access or use the Site. By agreeing to these Terms and/or using the Site, You represent and warrant that You have the authority to represent and legally bind the company or business entity for whom You are acting. If You do not have such authority, You may not use the Site.
- You may not use the Site and may not accept the Terms if:
- You are under 18 years of age;
- You are a person barred from using the Site under the laws of the United States or other countries including the country in which You are resident or from which You use the Site; or
- You are (or the Company You work for is) a competitor of Trifectix.
Trifectix reserves the right, in its sole discretion, to deny access to anyone to the Site, at any time and for any reason, including, but not limited to, a violation of these Terms.
PRIVACY AND YOUR PERSONAL INFORMATION
Trifectix may make changes to the Terms from time to time. When these changes are made, Trifectix will make a new copy of the Terms available to You on or within the Site. You agree to check the Site periodically for new information and terms
You understand and agree that Your continued use of the Site following the posting of such changes constitutes Your acceptance of the revised Terms. Trifectix may use reasonable commercial efforts to provide notice of material changes to You. If the modified Terms are not acceptable to You, Your only recourse is to discontinue Your use of the Site.
YOUR RESPONSIBILITIES WITH RESPECT TO PASSWORDS AND ACCOUNT SECURITY
To access some portions of the Site You may be required to register with Trifectix and provide information about Yourself, such as Your name, email address, company affiliation and phone number as part of the registration process. You agree that any such information that You provide to Trifectix will be accurate, correct and current. You may be assigned an account (“Account“) with a user ID and password to access such portions of the Site.
You agree and understand that You are responsible for maintaining the confidentiality of passwords associated with any Account You use to access the Site and that that You are solely responsible for all activities that occur under Your account. Your Account may be terminated if someone else uses it to engage in activity that violates the Terms. Trifectix will not ask You to reveal Your password, or initiate contact with You asking for answers to Your password security questions.
If You become aware of any unauthorized use of Your password or of Your Account, You agree to notify Trifectix immediately at the address in the “How to Contact Trifectix” section below.
The Site and all content thereon or therein is protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms, Trifectix and its licensors exclusively own all right, title and interest in and to the Site and all content thereon or therein, including all associated intellectual property rights (the “Proprietary Materials”).
You agree that You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site.
You acknowledge that nothing in these Terms transfers title or ownership of any Trifectix Proprietary Materials to You.
Unless You have agreed otherwise in a separate agreement You may not use any of Trifectix’s or other companies’ brand features such as trademarks and logos.
You further acknowledge that the Site may contain information which is designated “confidential” by Trifectix and that You will not disclose such information without Trifectix’s prior written consent.
IMPROVEMENTS IN THE SITE
Trifectix regularly makes improvements to the Site in an effort to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Site, including its content, may change from time to time without notice to You and without liability
The Proprietary Materials, and the infrastructure used to provide such content and information, are proprietary to Trifectix and its licensors and providers. Trifectix gives You a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Site solely for Your personal, private and non-commercial use. This license is for the sole purpose of enabling You to use and enjoy the benefit of the Site as provided by Trifectix, in the manner permitted by the Terms.
While You may make limited copies of the Proprietary Materials of this Site for Your personal, non commercial use, You are not permitted to modify, copy, distribute, upload, post, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any information, software, products, or services obtained from or through this Site in any form whatsoever. Such additional use may be available subject to separate license agreements between You and Trifectix.
Except for the limited rights expressly granted to You in these Terms, Trifectix reserves all rights, title and interest in and to the Proprietary Material and including all related intellectual property rights. No rights are granted to You under these Terms other than as expressly set forth herein.
CONTENT ON THE SITE
Content in or on the Site provided by Trifectix, its affiliates, employees, agents, representatives, licensors, or other third party partners including or other trademarks, logos, trade names, slogans, text, files, images, photos, videos, sounds, location data, musical works, works of authorship or other materials or content (“Trifectix Content”) is the property of Trifectix and/or its licensors and is protected by appropriate trademark, copyright, trade secret or other related laws both in the United States and internationally. The Site may permit the submission of text, files, images, photos, videos, sounds, musical works, works of authorship or other materials and content by You (“User Content”). Trifectix Content and User Content collectively will be referred to as “Content”. Trifectix may, but has no obligation to, pre-screen any User Content and does not endorse or approve any User Content that You or other users contribute to the Site. By using the Site You acknowledge and accept that You may be exposed to Content You find offensive or objectionable. You are solely responsible for Your activities in connection with User Content and You agree that Trifectix will not under any circumstances be responsible or liable for any User Content, including, but not limited to, errors in any User Content or any loss or damage incurred by use of the User Content or for any failure to or delay in removing User Content. Trifectix respects the intellectual property rights of others. You must have the legal right to upload any User Content to the Site. You may not upload or post any Content on the Site that infringes the copyright, trademark or other intellectual property rights of a third party nor may You upload User Content that violates any third party’s right of privacy or right of publicity. You may upload only User Content that You are permitted to upload by the owner or by law.
When You contribute User Content to the Site, You expressly grant to Trifectix for Trifectix, its affiliates, employees, agents, representatives, licensors or other third party partners, a royalty-free, non-exclusive, transferable, perpetual, worldwide, sublicensable and irrevocable right and license to quote, re-post, publish, use, adapt, translate, archive, store, reproduce, modify, create derivative works from, syndicate, license, print, sublicense, distribute, transmit, broadcast, and otherwise communicate, and publicly display and perform, and otherwise exploit the User Content, or any portion thereof, in any manner or form and in any medium or forum, whether now known or hereafter devised, without notice, payment or attribution of any kind to You or any third party. You grant Trifectix all licenses, consents and clearances to enable Trifectix to use such User Content for such purposes. You waive and agree not to assert any moral or similar rights You may have in such User Content.
If the portion of the Site to which You contribute User Content permits other users to access and use that User Content, then You also grant all other users of the Site the right to use, copy, modify, display, perform, create derivative works from, and otherwise communicate and distribute Your User Content without further notice, attribution or compensation to You.
THIRD PARTY SITES
For Your convenience, the Site may contain hyperlinks to websites that are operated by parties other than Trifectix (“Third Party Sites“). When You click on one of these links, You are leaving the Site, and entering another website. Our inclusion of hyperlinks to these Third Party Sites does not imply any endorsement of, or any association with their operators. We do not control such third party websites and are not responsible for their contents or their practices.
If You decide to leave the Site and access the Third Party Sites, You do so at Your own risk and You should be aware that these Terms no longer govern. You should review the applicable terms and policies, including privacy and data gathering procedures, of any Third Party Site to which You navigate from the Site.
Further, it is up to You to take precautions to ensure that whatever links You select or software You download (whether from this Site or Third Party Sites) is free of viruses, worms, Trojan horses, defects and other items of a destructive nature.
You acknowledge and agree that Trifectix is not liable for any loss or damage which may be incurred by You as a result of the availability of Third Party Sites or resources, or as a result of any reliance placed by You on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such websites or resources.
GENERAL RULES OF CONDUCT AND USAGE
You represent and warrant that You have full right and authority to use the Site and to be bound by these Terms and, if applicable, the terms of the Master License Agreement. You agree to use the Site only in accordance with the Terms and applicable laws and government regulations.
You agree that You are solely responsible for (and that Trifectix has no responsibility to You or to any third party for) any breach of Your obligations under the Terms and for the consequences (including any loss or damage which Trifectix may suffer) of any such breach.
Unless You have express permission to do so in a separate agreement with Trifectix, You may not rent, lease, loan, sell, or distribute the any portion or component of the Site or create derivative works based on any portion or component of the Site.
You may not access the Site for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, or for unlawful purposes.
Additionally, You agree that You will not, and will not authorize any third party to:
- Access, monitor or copy any Proprietary Materials of this Site by any means other than through the interface that is provided by Trifectix, unless You have been specifically allowed to do so in a separate agreement with Trifectix;
- Access (or attempt to access) any of the Site through any automated means using any robot, spider, scraper or other automated or manual process for any purpose without our express written authorization and will ensure that You comply with the instructions set out in any robots.txt file present on the Site;
- Violate the restrictions in any robot exclusion headers on this Site or bypass or circumvent other measures employed to prevent or limit access to this Site;
- Engage in any activity that interferes with or disrupts the Site (or the servers and networks which are connected to the Site) or that imposes, or may impose, in our discretion, an unreasonable or disproportionately large load on the Site; or
- Reverse engineer any part of this Site.
If You feel the need to conduct any of these prohibited activities, please contact Trifectix.
Linking to the Site
You may not link to this Site or any portions of the Site unless such linking is approved in writing by Trifectix.
By these Terms Trifectix consents to those links in which the link and the pages that are activated by the link do not:
- Create frames around any page on this Site or use other techniques that alter in any way the visual presentation or appearance of any content within this Site;
- Create frames that may represent that the pages activated by the links are other than Trifectix pages;
- Misrepresent Your relationship with Trifectix;
- Imply that Trifectix approves or endorses You, Your website, or Your service or product offerings; and/or
- Present false or misleading impressions about Trifectix or otherwise damage the goodwill associated with the Trifectix name.
You agree that Trifectix may at any time, in its sole discretion, terminate permission to link to this Site. In such event, You agree to immediately remove all links to this Site and to cease using any Trifectix trademark.
You will be solely responsible for the legality (all necessary rights, title, interest, permissions and licenses) of any submissions that You post, upload, download or transmit to or from this Site (“Submissions”) and of the means by which You acquired Your Submissions.
You covenant that You will not, and will not permit any third party to, post, email, transmit, link to or otherwise make available or initiate any content or Submission that:
- Infringes upon, violates or misappropriates any third party intellectual property or other proprietary, publicity or privacy rights;
- Is unlawful, threatening, discriminatory, abusive, libelous, defamatory, obscene or pornographic, or that violates any law or discusses or incites illegal activity;
- Falsely states, impersonates or otherwise misrepresents Your identity, including but not limited to the use of a pseudonym, or misrepresenting Your current or previous positions and qualifications, or Your affiliations with a person or entity, past or present;
- Contains software viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment of Trifectix or any user of the Site;
- Forges headers or otherwise manipulates identifiers in order to disguise the origin of any communication transmitted through the Site; and/or
- Is of commercial material or content (including, but not limited to, solicitation of funds, advertising, or marketing of any good or services).
COMMENTS, QUESTIONS AND COMPLAINTS
If You have questions, comments or complaints about the Site please contact Trifectix in the “How to Contact Trifectix” section below.
If You send or transmit any communications, comments, questions, suggestions, or related materials to Trifectix, whether by letter, email, telephone, or otherwise (collectively, “Feedback“), suggesting or recommending changes to the Site or any services offered through the Site, including, without limitation, new features or functionality relating to the Site, Software and Services, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title and interest in, and Trifectix is free to use, without any attribution or compensation to You, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that Trifectix is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and You have no right to compel such use, display, reproduction, or distribution.
THE SITE AND CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE FOREGOING, TRIFECTIX AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS AND LICENSORS (COLLECTIVELY, THE “TRIFECTIX PARTIES“) EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. THE TRIFECTIX PARTIES MAKE NO WARRANTY THAT THE SITE OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS (INCLUDING ERRORS IN PRICING). THE TRIFECTIX PARTIES MAKE NO WARRANTY THAT THE SITE, THE SERVERS HOSTING THE SITE, OR ANY EMAIL SENT FROM ANY TRIFECTIX PARTY ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE TRIFECTIX PARTIES MAKE NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICE OR CONTENT OBTAINED THROUGH THE SITE, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE. YOU UNDERSTAND THAT TRIFECTIX DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY BUSINESSES OR OTHER USERS OF THE SITE, NOR DOES TRIFECTIX MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF SUCH USERS. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE AND WITH ALL PERSONS (INCLUDING MERCHANTS AND BUSINESSES) WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE DISCLAIMERS OF THIS SECTION MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE REMAINS WITH YOU. NEITHER THE TRIFECTIX PARTIES NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, WHETHER BASED ON BREACH OF WARRANTY, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE TRIFECTIX PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
TRIFECTIX MAY FIND IT NECESSARY TO UPDATE, OR RESET THE SITE, WHICH UPDATES OR RESETS MAY AFFECT YOUR USE OF THE SITE. TRIFECTIX RESERVES THE RIGHT TO MAKE THESE UPDATES AND IS NOT LIABLE TO YOU FOR THE AFFECTS OF SUCH UPDATES ON YOUR USE OF THE SITE.
IN NO EVENT WILL THE TRIFECTIX PARTIES’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE OR CONTENT EXCEED FIVE HUNDRED DOLLARS ($500). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TRIFECTIX AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
DIGITAL MILLENNIUM COPYRIGHT ACT
Trifectix respects the intellectual property and other proprietary rights of others and has a policy of removing content that infringes third party copyrights and suspending and/or terminating the Account of any user who uses this Site in violation of copyright law, and where appropriate, blocking such user’s access to the Site. If You are a copyright owner, or an agent thereof, and believe that Your work is the subject of copyright infringement and appears on the Site or is being published and distributed by Trifectix, You may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our copyright agent (designated below) with the following information in writing: (i) Your physical or electronic signature; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Trifectix to locate such material; (iv) information reasonably sufficient to permit Trifectix to contact You, such as an address, telephone number, and, if available, an e-mail address; (v) a statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that You are, or that You are authorized to act on behalf of, the owner of an exclusive right that is allegedly infringed. Trifectix’s designated copyright agent to receive notifications of claimed infringement under the DMCA is:
Copyright AgentTrifectix, Inc.
13706 Research Blvd., Suite 307 Austin, TX 78750
Only DMCA or other intellectual property rights-related notices should be sent to the copyright agent. Requests for customer service and product support should be addressed to [email protected]
You agree that the provisions in this Indemnity section will survive any termination of Your Account or of Your access to the Site.
You agree to defend, indemnify and hold the Trifectix Parties harmless from and against any claims, causes of action, demands, recoveries, losses, damages, liabilities, fines, penalties or other costs or expenses of any kind or nature including but not limited to reasonable legal and accounting fees, arising out of Your use or misuse of the Site, any violation by You of these Terms, any of Your User Content, any violation by You of any law or the rights of any third party or any breach of the representations, warranties, and covenants made by You herein. Trifectix reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify the Trifectix Parties, and You agree to cooperate with Trifectix’s defense of these claims. Trifectix will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it.
Trifectix may provide notices regarding the Terms to You via a posting on this Site, and may also provide notices to You via email if You have provided an email address.
By using the Site, Software and Services, You consent to receiving electronic communications from Trifectix. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site, Software and Services. These electronic communications are part of Your relationship with Trifectix. You agree that any notices, agreements, disclosures or other communications that Trifectix sends You electronically will satisfy any legal communication requirements, including that such communications be in writing.
Governing Law and Exclusive Jurisdiction
This Site is operated by a U.S. entity and these Terms are governed by the laws of the State of Texas, USA, without reference to conflict of laws principles.
You hereby consent to the exclusive jurisdiction and venue of courts in Travis County, Texas, USA, for all disputes arising out of or relating to the use of this Site.
Use of this Site is prohibited in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this paragraph.
Export of Software and Services or Technical Data
You may not remove or export from the United States or allow the export or re-export of the Software and Services, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.
To the extent allowed by applicable law, You agree that You will bring any claim or cause of action arising from or relating to Your access or use of this Site within two years from the date on which such claim or action arose or accrued, or such claim or cause of action will be irrevocably waived.
No Third-Party Beneficiaries
There are no third-party beneficiaries to these Terms.
Waiver and Remedies
The failure of Trifectix to exercise or enforce any right or provision of these Terms will not constitute waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in a writing signed by Trifectix.
If any provision of these Terms is held by a court of competent jurisdiction to be unenforceable or invalid, then that provision will be modified by the court and interpreted to reflect, as nearly as possible, the original intentions of Trifectix to the fullest extent permitted by law, and the remaining provisions of these Terms will remain in effect.
Trifectix may freely assign these Terms or any of its rights or obligations hereunder to any third party. Neither these Terms nor any obligations or rights hereunder may be assigned, delegated, or otherwise transferred by You without Trifectix’s prior written consent, which consent may be withheld in Trifectix’s sole discretion. Any attempted assignment in violation of this provision will be void. Subject to the foregoing, these Terms will inure to the benefit of the parties’ permitted successors and assigns.
Any rights not expressly granted herein are reserved.
HOW TO CONTACT TRIFECTIX:
Communications by mail:Attn: CFO
13706 Research Blvd., Suite 307 Austin, TX 78750
Communications by email: [email protected]