Copyright Notice and Terms of Service
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Master Subscription Agreement – Terms of Service
Please read this Terms and Conditions of Service agreement (“Agreement”) carefully. Your use of the Services (as defined below) constitutes your agreement and this Agreement governs your acquisition and use of Nymity’s Services.
This Agreement is between you (“You”) and Nymity Inc. (“Nymity”) concerning the use of the online sites currently located at https://www.nymity.com and https://nymitytools.nymity.com (together with any successor site(s) “Service” or “Services”), which are operated and owned by Nymity Inc. (“Nymity”). Unless and until a written agreement is entered into between You and Nymity, all use of the Service, including all content, information, and services provided by Nymity, is subject to the following Terms and Conditions of Service and Disclaimer (“Terms”), which constitutes a legal agreement between you (“You”) and Nymity. Nymity reserves the right to unilaterally change these Terms on thirty (30) days notice to You.
By accepting these Terms, either by clicking to indicate Your acceptance or by executing an Invoice that references this Agreement, You agree to the terms of this Agreement. If You are entering into this Agreement on behalf of a company or other legal entity, you represent that You have the authority to bind such entity and its affiliates to these Terms, in which case the terms “You” and “Your” shall refer to such entity and its affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept this Agreement and may not use the Services.
In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on July 25, 2019. It is effective between You and Nymity as of the date of You accepting this Agreement.
Each of the following words for this agreement has following meanings:
“Acceptable Use Policy” or “AUP” means the policy provided at https://www.nymity.com/acceptable-use-policy/.
“Affiliate(s)” means an entity that controls, is controlled by, or is under common control with either Party.
“Agreement” means this Master Subscription Agreement.
“Content” means any current or future text, documents, data, applications, e-services, images, audio and video files created by or for Nymity and held in and provided through the Services. Examples of Content include, but are not limited to, MoFo Notes reports, Research References, the Nymity Privacy Compliance Report, and Nymity LawTables Reports.
“Documentation” means Nymity’s online user guides and help and training material as updated from time to time, accessible via login to the applicable Service.
“Effective Date” means the date when this Agreement was accepted by You or Your Affiliates, its respective employees, directors or representatives.
“Force Majeure Event” means any event or condition beyond Nymity’s reasonable control, that prevents Nymity from performing its obligations under this Agreement, including without limitation acts of God, acts of government, flood, fire, earthquake, civil unrest, acts of terror, strikes, or other labor problem, internet-service provider failure or delay, or denial of service attack, excluding any payment related obligations.
“Invoice” means a document specifying the Services to be or that have been provided hereunder that is entered into between Nymity and You, including any addenda, quotation and schedules thereto, if any.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs, Trojan horses.
“Output” means the analytics, results, and related reports generated by Your use of the Service and based upon Your Data. Examples of Output include Your Attestor Score Card Results and Benchmarks Reports.
“User” means an individual who is authorized by You to use the Service, for whom subscriptions to a Service have been procured, and who have been supplied unique user identifications and passwords by You (or by Nymity at Your request). Users may include, for example, Your employees, consultants, contractors, agents, and third parties with which You transact business.
“Service(s)” means the products and services that are ordered by You and made available online by Nymity, including https://www.nymity.com, https://nymitytools.nymity.com, any other sites designated by Nymity for You, associated offline components, as described in the Documentation. For the purposes of Section 2 (Evaluation Access), this definition of Services shall apply solely for the duration of the evaluation period.
“Term”means the subscription term set forth in Nymity’s invoice commencing from the date of acceptance of this Agreement.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Your Data” means all information submitted by You while using the Services, which is solely generated by You prior to the execution of this Agreement.
2. EVALUATION ACCESS
2.1 If You register on our website for or are provided by a Nymity representative with evaluation access, Nymity may make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the evaluation period for which You registered to use the applicable Service(s), (b) the start date of any Service subscriptions ordered by You for such Service(s), or (c) the termination by a Nymity representative, in their discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
2.2 As part of Your evaluation access, You may enter Your Data into the Services and customize the Services for Your preferences. During the free trial, Your Data will be handled and secured in accordance with these Terms. Where a subscription to the same or upgraded Services as those covered by the evaluation access is purchased, Your Data will be made available in the Services where possible. The evaluation period shall be for a period of thirty (30) days, after which the Services shall be charged at the agreed upon pricing.
2.3 During the evaluation access, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY, as further set out in Section 10 of this Agreement.
2.4. Please review the User Guide during the evaluation period so that You become familiar with the features and functions of the Services before You make Your purchase.
3. TERMS OF SERVICE
3.1 License. From the Effective Date of this Agreement or commencement of the license as mentioned in the applicable invoice, whichever is earlier, and subject to the terms of this Agreement, and payment of fees, Nymity hereby grants to You a non-exclusive, non-transferable and non-sublicensable, revocable and limited license to (a) access and use the Services; and (b) use, access and reproduce the Content and Output for internal business purposes in accordance with the Limitations on Usage set out in Section 3. The Parties agree that Your license to use Output generated and retained by You during the Term solely for Your internal business purposes shall survive expiration or termination of the Term, subject to the terms of this Agreement.
3.2 Provision of Service. During the Term, Nymity will: (a) provide to You basic support for the Service at no additional charge, and/or upgraded support if purchased, and (b) use commercially reasonable efforts to ensure the online Services are available twenty-four (24) hours a day, seven (7) days a week, except for: (i) planned downtime for the Service (of which, with the exclusion of the Service’s weekly update, Nymity will use commercially reasonable efforts to give at least eight (8) hours’ notice via the Service for major upgrades involving significant services outages; or (ii) any unavailability of the Service caused by or non-performance of any obligations by Nymity due to any Force Majeure Event.
3.3 Services Term Subscription. During the Services Term, subject to the terms of this Agreement, the applicable Invoice and your payment of fees, Nymity hereby grants to You a nonexclusive, non-transferable, non-sub licensable, revocable and limited subscription to: (a) access and use the Services; and (b) use, access and reproduce the Content and Output for internal business purposes in accordance with the Limitations on Usage set out in Section 4 (Your subscription to use Output generated and retained by You during the Services Term for Your internal business purposes shall survive expiration or termination of the Services Term).
3.4 Modifications to the Service. Nymity may make modifications to the Service or components of the Service from time to time and may notify You of any material modifications to the Service. Nymity reserves the right to discontinue offering the Service at the conclusion of Your then current Services Term. Nymity shall not be liable to You nor to any third party for any modification of the Service.
4. LIMITATIONS ON USAGE
4.1 Usage Limits. Services and Content are subject to usage limits as set forth in the applicable invoice or the Services Description, as set forth on Nymity’s website.
4.2 Usage Restrictions. To ensure the ongoing availability and quality of the Services and Content therein, You will comply at all times with the Acceptable Use Policy provided on https://www.nymity.com
4.3 Use of Third Party Software
- (a) You understand and acknowledge that NymityTools may include third-party software under license, including, but not limited to, InRule® from InRule Technology, Inc., embedded within NymityTools solely for Nymity’s use in NymityTools. You may only use the 3rd party software independent from NymityTools via a grant of license from the vendor of that software.
- (b) You acknowledge and agree that Nymity or its licensors have and will retain all right, title, interest and ownership in and to any software contained in NymityTools (including, without limitation, InRule Technology, Inc.’s ownership of its InRule® Software) and any copies or updates or derivative works of NymityTools. You acknowledge that NymityTools and software contained therein (including the InRule® Software from InRule Technology, Inc.), and the terms of this Agreement constitute proprietary information and trade secrets of Nymity and its licensors, whether or not any portion thereof is or may be the subject of a valid copyright or patent. You agree to take all appropriate steps to ensure that persons having access to NymityTools or third party software included therein as may be permitted hereunder shall refrain from any unauthorized reproduction or disclosure of third party software included in NymityTools or any portion thereof.
- (c) You shall not be permitted access to the source code or object code of any 3rd party software; access to such software shall be limited to the functionality it provides in NymityTools.
- (d) You shall not:
- (i) assign, sublicense, lease, encumber or otherwise transfer or attempt to transfer any third party software contained in NymityTools (including, without limitation, the InRule® Software from InRule Technology, Inc.) or any portion thereof, or any of the rights or obligations pursuant to this Agreement, without the prior written consent of any third party software owner, including InRule Technology, Inc.;
- (ii) permit any third party to use or have access to NymityTools or any third party software contained therein (including, without limitation, the InRule® Software from InRule Technology, Inc.), whether by timesharing, networking or any other means;
- (iii) modify, adapt, translate, reverse engineer, decompile or disassemble any third party software contained in NymityTools (including, without limitation, the InRule® Software from InRule Technology, Inc.), other than to the extent Nymity is required by law to permit You to do so;
- (iv) possess or use any third party software contained in NymityTools (including, without limitation, the InRule® Software from InRule Technology, Inc.) or any portion thereof, other than in machine readable object code; and
- (v) distribute or make any copies of any third party software contained in NymityTools (including, without limitation, the InRule® Software from InRule Technology, Inc.);
5. FEES AND PAYMENT
5.1 Fees. You shall make the payment for the Services within the payment term and as per the terms set out in Invoice. Except as otherwise specified herein or in an Invoice, (i) fees are based on Services and Content purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Term.
5.2 Invoicing and Payment Invoices shall fall due and payable to Nymity thirty days (30) from the invoice date. You shall provide accurate, current, and complete information on Your legal business name, address, email address, and phone number, and maintain and promptly update Nymity about any changes in the said information.
5.3 Overdue Charges. In the event you fail to make any payment within the payment term of thirty (30) days, Nymity shall, at its sole discretion and without limiting any Nymity’s rights or remedies available to it under law, (a) apply delayed payment interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is higher, and/or (b) suspend the Services till the payment of the amount due to Nymity, as mentioned in section 5.4 below.
5.4 Suspension of Service. Upon fifteen (15) days’ written notice to You for any failure to make the payment within the payment term, Nymity reserves the right to suspend Your and any of Your Affiliates’ access to and/or use of the Service. Nymity shall not be liable or responsible, in any manner, to You or to any of Your Affiliates or other third party for any suspension of the Service pursuant to this Section.
5.5 Taxes. All fees are expressed exclusive of any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added tax.
5.6 Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Nymity regarding future functionality or features.
6. PROPRIETARY RIGHTS AND LICENSES
6.1 Ownership. You agree and confirm that all rights, title, and interest in and to all intellectual property rights in the Service, any related materials, including without limitation any Documentation, papers, compliance kits, analysis, reviews, graphics, images, HTML codes and source or compiled code are owned exclusively by Nymity or its licensors, with the exclusion of Your Data. Nymity service trademarks, logos, and products are marks of Nymity respectively (the “Nymity Marks”). You agree to retain the Nymity Marks, copyright and proprietary notices on all the Output generated or retained by Customer, or on any Nymity materials reproduced for the permitted purposes only, and not to display or use the Nymity Marks in any manner otherwise, without Nymity’s express prior written permission.
6.2 Not Transfer or Assignment. Except as expressly provided in this Agreement, nothing contained herein shall be construed as conferring any license, transfer, assignment of any right or ownership, by implication, estoppels or otherwise under copyright or other intellectual property or proprietary rights.
7. NOT LEGAL ADVICE
Content and Output is not intended to and does not constitute legal advice and no attorney-client relationship is formed, nor is anything submitted to this Service treated as confidential, except as provided in Section 9. The information provided is not a substitute for legal or other professional advice. The accuracy, completeness, adequacy or currency of the Content is not warranted or guaranteed. Your use of Content on this Service or materials linked from this Service is at your own risk.
8. LINKS TO OTHER SITES
The Services may contain links to other sites as well as e-mail links. These links are provided solely as a convenience to you. These other sites were independently developed by parties other than Nymity and Nymity assumes no responsibility for the accuracy or appropriateness of the information contained in such sites. The inclusion of any link to another site does not imply endorsement by Nymity. Any mention of another party or its product or service in Nymity’s Services should not be construed as an endorsement of that party, its products, and/or services. If you decide to access linked third party web sites, You do so at your own risk.
9.1 Confidential Information. Prior to the Effective Date of this Agreement and in accordance with applicable law, “Confidential Information” shall include any and all information exchanged between You and Nymity, whether orally, in writing, electronically or any other format whatsoever, including without limitation the terms of this Agreement, Nymity’s information, Your Data, commercial terms such as subscription levels, invoice and pricing data, each party’s proprietary technology, business processes and technical product information, designs, issues, all communication between the parties regarding the Service.
9.2 Exclusions. Notwithstanding the foregoing, Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient; (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient.
9.3 Nymity and You Agree: (a) to keep confidential all Confidential Information; (b) to not use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by the disclosing party; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is permitted by law or order of a court or other governmental authority or regulation.
9.4 Your Data. You control the elements of Your Data, whether personal or confidential in nature, which are provided to Nymity through Your subscriptions. Nymity expressly discourages provision of sensitive personal data, and its Services are not intended to store or manage personal data other than the business contact information necessarily required to maintain and manage a subscription Service. In regards to any business Confidential Information, Nymity encourages You to take steps to protect Your Data by using links to repositories hosted within Your own infrastructure and environment, and by use of data minimization, and the use of pseudonymized or coded data elements.
9.5 Personal Data Protection.
9.5.1 For the purposes of this section 9.5.1, the term “Your Personal Data” shall include Your directors’, employees’, contractors’, consultants’, agents’ or any other authorized representatives’ name, business contact information, tile and any other details required to generate access credentials to NymityTools. To the extent that “User Data”, i.e., username, password and business contact information constitutes Your Personal Data, Nymity acknowledges and agrees that You shall be the data controller and Nymity is Your data processor and will process Your Data in accordance with Your reasonable written instructions from time to time.
9.5.2 Nymity shall, at the earliest commercially possible comply with any request from You requiring Nymity to (a) cease processing Your Personal Data or (b) amend, transfer or delete any of Your Personal Data. In addition, upon termination or expiration of this Agreement, Nymity shall promptly cease processing Your Personal Data.
9.5.3 Nymity shall not process, nor permit any subcontractor to process Your Personal Data outside (a) countries within the European Union, Iceland, Liechtenstein and Norway; and (b) countries that the European Commission may, from time to time, officially recognize as ensuring an adequate level of protection. Where Nymity permits processing outside of the above jurisdictions, Nymity shall enter into Model Clauses with any subcontractor who is to be a data processor.
9.5.4 Nymity shall reasonably cooperate and assist You in respect of any communications, requests (e.g. subject access requests, or requests to correct or delete), objections or any other communications received from data subjects, regulatory authorities, or any other person concerning Your Personal Data.
10. REPRESENTATION, LIMITATIONS OF LIABILITY AND DISCLAIMER
10.1 Representation and Warranties.
- (a) You and Nymity individually represents and warrants that: (i) the execution and performance of respective obligations under this Agreement shall not violate any agreement or other obligation by which it is bound; (ii) the obligations under this Agreement shall be performed in compliance with all applicable laws and regulations; and (iii) the systems and devices used for the Services shall be free of any and all Malicious Code.
- (b) You represent and warrant that: (i) Your Users shall, at all times, comply with the terms of this Agreement, and that You shall be primarily responsible for any breach, act(s), omissions of the Users under this Agreement; (ii) Your Data is accurate and correct; (iii) You are the rightful owner of Your Data and You are legally authorized to use Your Data; (iv) You shall prevent unauthorized access to or use of Services and Content at all times, and notify Nymity promptly of any such unauthorized access or use; and (v) You shall use Services and Content only in accordance with the Documentation, for the permitted purposes, applicable laws and government regulations.
- (c) Nymity warrants and represents that the Services shall function substantially in accordance with the Documentation provided.
10.2 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NYMITY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ALL SERVICES, MATERIALS AND CONTENTS ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
10.3 Limitation of Liability. NYMITY’S LIABILITY WITH RESPECT TO ANY DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICE, CONTENT OR SPECIFIC PRODUCT THAT IS SUBJECT OF THE CLAIM OR DISPUTE. THE ABOVE LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT).
10.4. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. TERM AND TERMINATION
11.1 Services Term. The subscription term for each Service shall be an initial term of twelve (12) months from the invoice date, which shall be automatically renewed for additional twelve (12) month periods, unless terminated by You or Nymity upon thirty (30) days written notice prior to the end of the then current subscription Term.
11.2 Termination and Expiration. Either party may immediately terminate this Agreement and all Invoices issued hereunder in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of written notice from the non-breaching party, without any obligation or liability whatsoever. Upon termination or expiration of this Agreement, You shall immediately make the payments for any amounts due till the date of such termination or expiration, and You agree and confirm that You shall have no rights to continue use of the Service(s), Content, Materials and/or Documentation whatsoever
11.3 Your Data Portability and Deletion. You agree that following termination of Your account and/or use of the Service, Nymity shall immediately deactivate Your account and that following a reasonable period of not less than ninety (90) days delete Your account. Aggregate usage statistics, which are not identifiable, may survive account deactivation and deletion. You agree to delete or destroy any Content, Materials and/or Documentation (including any copies thereof) obtained through the Services, unless prior written approval is obtained from Nymity to retain the Content, Materials and/or Documentation.
11.4. Surviving Provisions. The Sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Indemnification,” “Limitation of Liability,” “Termination or Expiration”, “Your Data Portability and Deletion,” “Governing Law and Jurisdiction,” and “Assignment” shall survive any termination or expiration if this Agreement.
Neither party may assign or transfer any of its rights or obligations hereunder, whether as a whole or parts, by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld or conditioned); provided, however, either party may assign this Agreement in its entirety (including all Invoices), without the other party’s consent but with prior written notice, to any of its Affiliates. You and Nymity agree and confirm that in the event of any such transfer or assignment to any of their respective Affiliates, the assigning party shall remain primarily responsible for any failure, breach, acts or omissions of the assigned party. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13. FORCE MAJEURE EVENT
Nymity shall not be in breach of its obligations or incur any liability to You or Your Affiliates for any losses or damages of any nature whatsoever incurred or suffered, if and to the extent Nymity is prevented or restricted from performing its obligations by, or such loss or damages are a result of any Force Majeure Event or scheduled maintenance plans. Nymity shall inform You of the occurrence of such Force Majeure Event as soon as commercially possible and shall thereafter keep You informed until such time as it is able to perform its obligations under this Agreement.
Your or Nymity’s failure to enforce any of their respective rights, whether as a whole or in part, under this Agreement shall not be deemed to be a waiver of that or any of its other rights, unless expressly stated in writing.
15. GOVERNING LAW AND JURISDICTION
You and Nymity agree and confirm to attempt to amicably resolve any disputes and claims internally within ninety (90) days from the date of notification of such dispute or claim, and in the event of failure to reach an amicable resolution, shall commence any remedies available under the applicable law or resolution, provided that the above shall not apply to any payment related obligations set forth in this Agreement. This Agreement will be governed by and construed in accordance with the laws of Ontario, Canada. You agree to jurisdiction of the Ontario Court for all disputes concerning in any manner the subject matter of this Agreement.
16. RELATIONSHIP OF THE PARTIES
Nothing in this Agreement creates any special relationship, such as partnership, joint venture, or employer-employee relationship between You and Nymity. Neither You nor Nymity will have the authority to, and will not, act as an agent for or on behalf of the other, represent or bind the other in any manner whatsoever.
In the event any part of this Agreement or any specific provision or section is declared unenforceable or invalid, under law, then the remainder of this Agreement shall continue to remain valid and enforceable.
18. ENTIRE AGREEMENT AND AMENDEMENTS
This Agreement, together with all other documents that are both referenced and referred to in this Agreement, (a) represent the final expression of parties’ intent relating to the subject matter of this Agreement, (b) contain all the terms the parties agreed to relating to the subject matter, and (c) replace and supersede all of the parties’ previous discussions, understandings and agreements relating to the subject matter of this Agreement.