THE TERMS OF SERVICE SET FORTH BELOW (THESE "TERMS") GOVERN YOUR USE OF SCANTA'S SERVICES (AS DEFINED BELOW) AND ARE A LEGAL AGREEMENT BETWEEN THE INDIVIDUAL USING THE SERVICES AND ANY LEGAL ENTITY ON WHOSE BEHALF SUCH INDIVIDUAL IS ACTING ("YOU" OR "YOUR") AND SCANTA INC. ("SCANTA"). PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SERVICES.
BY YOUR USE OF SERVICE PROVIDED OR YOUR CLICKING TO ACCEPT OR AGREE THESE TERMS, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE ANY INFORMATION CONTAINED IN THE SERVICE. YOUR CONTINUED USE OF SERVICE PROVIDED SHALL BE DEEMED TO BE YOUR CONTINUED AGREEMENT TO ABIDE BY EACH OF THE TERMS SET FORTH BELOW.
"Services" shall mean: (i) the products and services in the Scanta TruPulse families and brands; (ii) any cloud or SaaS products and services available through Scanta's TruPulse Portal; and (iii) any other Scanta products and services provided to You in association with these Terms, including any management, dashboard and/or ancillary tool or service provided by Scanta in connection with the Services, except for any hardware. Scanta may update the list of Services from time to time.
2.1 Right to Use the Services. If You purchased a valid subscription license to a Service, subject to these Terms and the terms specified in Your order for Services (including from a Scanta authorized reseller or distributor), as approved by Scanta, at its sole discretion ("Service Order"), and payment of the applicable fees, Scanta hereby grants only to You, a non-exclusive, non-sublicensable, non-transferable license for the service term specified in your Service Order ("Service Term") to access and use the Services in accordance with the relevant documentation provided by Scanta, as they may be updated from time to time.
2.2 Restrictions.
2.3 Managed Service Provider. Notwithstanding Section 2.2 of these Terms, if it is indicated in Your Service Order that You provide the Services to Your Customers as a managed service provider or if you are a party to a managed service provider agreement with Scanta (including via an authorized Scanta distributor) ("Managed Service Provider"), the Services are licensed to You only for the operations of Your customers. You are responsible for (i) the compliance with these Terms by Your customers (ii) obtaining the consent of each of Your customers to these Terms as a condition to use by each such customer of the Service; and (iii) maintaining an evidence of such consent.
2.4 Trial or Evaluation License. If You use the Services for an initial trial or evaluation period, the right to use the Services is valid only for the designated period determined by Scanta, at its sole discretion, and is designed to allow You to evaluate the Services during such period. Scanta may, in its sole discretion, at any time prior to or during such period, discontinue provision of the Services and terminate the right to use the Services with immediate effect. Upon expiration or termination of such period, Your rights under these Terms with respect to such terminated or expired Services shall terminate.
2.5 Third Party Applications. Certain Services are linked and connected to Third Party Applications. You agree that Scanta has no control over the Third Party Applications nor the content or information posted therein. Scanta shall have no responsibility or liability whatsoever in connection with any Third Party Application. Third Party Applications may have terms of use and privacy policies that are different from those herein. You are responsible to review such terms and policies at the third parties' websites' respective privacy notices and terms of service.
2.6 Excess Usage. Without derogating from Section 2.2 above and from any other remedy available to Scanta, if Your usage of the Services exceeds the Permitted Scope, Scanta shall be entitled to: (i) charge You per its list price, as amended from time to time (including through its authorized resellers and distributors), for such additional Service subscription licenses as required to cover the excess usage; and (ii) upon notice, limit, suspend or terminate Your license to use the Service.
3.1 Support Terms. Subject to Your purchase of support and maintenance as described in Your Service Order and to payment of the applicable fees, You shall be provided with support and maintenance for the covered Services thereto (the "Support Services") The purchase of Support Services shall be governed by the terms of the applicable support program and service level agreement available at www.trupulse.ai/support-services/support-plans/ or at any successor webpage. Unless otherwise stated in Your Service Order or Your agreement with Scanta, the purchasing of a valid subscription license to a Service does not cover the payment for the corresponding Support Service.
3.2 Collaborative Support. If You purchase Support Service per one of Scanta's Collaborative Support Programs, Scanta shall not be responsible for the actions or omissions of Your support partner.
4.1 Service Availability. Scanta will use commercial reasonable efforts that each of the Services listed in the table below (except for Beta Service, as defined below) will be available for such time of each calendar month, as specified opposite to the name of such Service ("Monthly Service Availability").
| Services | Monthly Service Availability |
|---|---|
| Scanta TruPulse | 99.999% |
The Monthly Service Availability shall be calculated as follows:
Monthly Service Availability (%) = A / B × 100
"Outage Minutes" shall mean minutes in which the applicable Service is completely unavailable and inactive while Your systems and internet connection are working properly, other than unavailability due to: (ii) Your acts, omissions or requests; (ii) Service adjustments performed per Your request; (iii) error or malfunction of an ancillary tool of the Service which is deployed and/or managed by You, including, without limitation, the Service's application connector; (iv) an event beyond the reasonable control of Scanta, including, without limitation, the performance or availability of Third Party Applications, webpages or internet or other services controlled by third parties, an act of God, war (declared or undeclared), revolution, rebellion or civil strife, terrorist acts, riots, acts of public enemies, labor strikes or shortages, earthquakes, fires, floods, storms, explosions and governmental and regulatory actions (together, sub-sections (i)-(iv), the "Excluded Time").
4.2 Service Credits. If notwithstanding Sections 4.1 of these Terms, the Monthly Service Availability of the applicable Service during a calendar month is below the thresholds specified therein, You may request Scanta to extend Your current Service Term by additional days ("Service Credits") at no extra charge as follows, subject to a maximum of 1 month of Service Credits per year of Service:
| Monthly Service Availability | Service Credits |
|---|---|
| Equal to or above 99% and below the applicable threshold in Section 4.1 above | 3 days |
| Below 99% | 10 days |
You agree that grant of Service Credits in accordance with this Section 4.2 is Your sole remedy in connection with the availability of the Services or a failure by Scanta to comply with Section 4 of these Terms. If you have any claims for Service Credits, You may provide Scanta a notice of such claims only within ten (10) business days of the end of the applicable calendar month. For the avoidance of doubt, Service Credits are non-refundable and may be exercised only by extension of the current Service Term.
5.1 Privacy Policy. You acknowledge and agree that use of Services (and any other Scanta's products and services) is subject to the processing of information (which might contain personal information) pursuant to Scanta's Privacy Policy, which is available at www.trupulse.ai/downloads/company/esg-privacy-policy.pdf and which is incorporated herein by reference ("Privacy Policy").
5.2 Data Transfer. Any transfer by Scanta of Personal Data (as defined in the EU's General Data Protection Regulation (GDPR) (2016/679/EC)) outside the European Economic Area will be in compliance with the Standard Contractual Clauses published by the European Commission's decision of June 4, 2021.
5.3 Authorizations. You are responsible to obtain all necessary authorizations, approvals, consents and permits per the applicable law (if any) for: (i) providing the data You share with Scanta in connection with the Services and/or Your communication with Scanta; and (ii) Scanta's processing and storing of such data in accordance with the Privacy Policy.
All right, title, and interest in and to the Services, including, without limitation, any technologies, products, services and intellectual property rights in connection with the Services, and any improvement or derivative work in connection therewith shall remain with Scanta and its licensors. The Services are protected under international copyright, trademark and trade secret and patent laws. The license granted herein does not constitute a sale of the Services or any portion thereof.
These Terms are effective for the Service Term. Scanta may terminate these Terms upon Your breach of any of the provisions hereof that is not cured within thirty (30) days. These Terms will terminate immediately without notice from Scanta if (i) You fail to comply with any material provision of these Terms, or (ii) Your rights to use the Services are expired or terminated for any reason. Upon termination of Your right to use the Services under these Terms, You agree to cease all use of the Services, and so certify to Scanta. Except for Your rights to use Services and for maintenance and support and as expressly provided herein, the Terms hereunder shall survive any termination or expiration.
8.1 Scanta shall pay all costs, liabilities, damages and other amounts finally awarded against You from an action, to the extent based on a third-party claim that Your use of the Services (excluding any Third Party Applications) in accordance with these Terms and within the Permitted Scope, directly infringes any US or EU patent or trademark issued as of the date of Your Service Order or any copyright or trade secret, provided that (i) You promptly notify Scanta of any and all threats, claims or proceedings potentially implicating the indemnity obligations set forth in this Section 8.1 and prior to taking any action which could adversely impact the defense; and (ii) Scanta is given reasonable assistance and the opportunity to assume sole control over the defense of the claims and/or allegations for which indemnity is sought under this Section 8.1 as well as sole control over all negotiations for a settlement or compromise of those claims. Scanta will not be responsible for any settlement it does not approve in writing in advance and/or for any allegation of trade-secret misappropriation, other than one based on an allegedly wrongful act of misappropriation by a Scanta employee or agent. If a Service is, or in Scanta’s opinion is likely to become, the subject of a claim, suit, or proceedings of infringement, Scanta may in its sole discretion: (i) procure, at no cost to You, the right to continue using such Service; (ii) replace or modify the Service, at no cost to You, to make it non-infringing (even if that modification materially impacts the value or utility of the Service), or (iii) terminate the license for the infringing Service and grant a refund credit thereon as depreciated on a monthly basis and reflecting the remaining Service subscription term. THE FOREGOING PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF SCANTA WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES AND IS IN LIEU OF ANY WARRANTIES OF NONINFRINGEMENT. The foregoing indemnity obligation of Scanta does not apply with respect to a Service or portions or components thereof: (i) not provided by Scanta, (ii) made in whole or in part in accordance Your specifications, (iii) which are modified by anyone other than Scanta, if the alleged infringement relates to such modification, (iv) combined with other products, services, processes or materials where the alleged infringement relates to such combination, (v) where Scanta could not be held liable for inducing or contributing to infringement of Your asserted claims; (vi) with respect to which a claim or allegation of infringement was first made prior to the date of Your Service Order; (viii) where the claim arises because of Your decision to offer indemnity to a third party that is greater in scope that the indemnity offered herein; or (viii) where You continue allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement. Scanta also shall have no indemnity obligation for legal fees, costs or expenses You incurred prior to the time You provide Scanta both (a) notice of the claim and (b) materials from which Scanta could reasonably determine that indemnity is owed. You will indemnify Scanta and its officers, directors, agents and employees from all damages, settlements, attorneys’ fees and expenses related to a claim of infringement or misappropriation excluded from Scanta’s indemnity obligation by this Section 8.1.
8.2 You agree to defend, indemnify and hold harmless Scanta, its vendors, officers, directors, employees, affiliates, subsidiaries, licensors, agents and suppliers from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney’s fees) arising from: (i) Your unauthorized use of the Services; (ii) Your violation of any applicable laws, regulations or third party rights, including, without limitation, any intellectual property rights or privacy rights, in connection with Your use of the Services; and (iii) Your violation of any of these Terms or the applicable terms of a Third Party Application.
9.1 Limited Warranty. TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED. SCANTA DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THEIR OPERATION OR USE WILL BE UNINTERRUPTED OR ERROR FREE. SCANTA DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
9.2 Limitation of Liability. You are solely responsible for adequate protection and backup of the data and equipment used in connection with the Services. Scanta does not guarantee that the information accessed by the Services will be accurate or complete. You acknowledge that performance of the Services may be affected by any number of factors, including without limitation, technical failure of the Services, the acts or omissions of third parties and other causes reasonably beyond the control of Scanta. Certain features of a Service may not be forward-compatible with future versions of such Service, and use of such features with future versions of such Service may require to purchase the applicable future version of the Service. TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, IN NO EVENT WILL SCANTA BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES ARISING OUT OF THE SUBJECT MATTER OF THESE TERMS AND THE SERVICES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR: (I) ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), OR FOR LOSS OF OR CORRUPTION OF DATA, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY, IRRESPECTIVE OF WHETHER SCANTA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) THE THIRD PARTY APPLICATIONS AND YOUR SYSTEMS, INCLUDING, WITHOUT LIMITATIONS THE PERFORMANCE OF THE THIRD PARTY APPLICATIONS AND YOUR SYSTEMS AND ANY CONTENT THEREIN. SCANTA’S MAXIMUM LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE LICENSE FEE RECEIVED BY SCANTA FOR THE PARTICULAR SERVICE SUBSCRIPTION LICENSE WHICH CAUSED THE DAMAGES.
10.1 License Grant. With respect to any pre-release version of a Service, including a beta, evaluation or an early availability product, service or feature (all collectively referred to herein as a “Beta Services”) that may be provided to You by Scanta from time to time, at its sole discretion, Scanta grants You a non-transferable and non-exclusive license to use the Beta Services for evaluation purposes only. The license is designed to provide You with early operational experience with the Beta Services and to provide Scanta with specified information regarding Your experiences with the use and operation of the Beta Services. The license shall be in effect for a limited period as determined by Scanta and certain other restrictions may apply. You may be asked to sign a separate agreement pertaining to the Beta Services.
10.2 No Obligations. Notwithstanding anything herein to the contrary, Scanta has no obligation to provide support, maintenance, upgrades, modifications, or new releases for Beta Products and Services. Owing to the experimental nature of the Beta Services, You are advised not to rely exclusively on the Beta Services for any reason. IN NO EVENT WILL SCANTA BE LIABLE TO YOU OR ANY OTHER PERSON FOR DAMAGES, DIRECT OR INDIRECT, OF ANY NATURE OR EXPENSES INCURRED BY YOU IN CONNECTION WITH THE BETA SERVICES. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DAMAGES IN CONNECTION WITH THE BETA SERVICES SHALL BE TO TERMINATE THE BETA TEST BY WRITTEN NOTICE TO SCANTA.
You agree to use the Services only as permitted by and in compliance with any applicable law and regulation in any relevant jurisdiction, including, without limitation, laws and regulations regarding export and privacy. You warrant and agree that You are not: (i) located in, under the control of, or a national or resident of Cuba, North Korea, Iran, Syria, Lebanon, Sudan, the Crimea, the Luhansk People’s Republic (LNR), or the Donetsk People’s Republic (DNR) regions of Ukraine, or any other country or region to which the United States has prohibited export transactions, or (ii) on the U.S Treasury Department list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.
12.1 Miscellaneous. You may not assign Your rights or obligations under these Terms without the prior written consent of Scanta. If any provision of these Terms is held to be invalid or unenforceable by a court of competent jurisdiction, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the Agreement, and the remainder of the provisions of these Terms shall remain in full force and effect. The laws of the State of Delaware shall govern all issues arising under or relating to these Terms, without giving effect to the conflict of laws principles thereof. All disputes arising under or relating to these Terms shall be resolved exclusively in the appropriate Delaware court. These Terms will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded. These Terms sets forth the entire understanding and agreement between You and Scanta and may be amended only in writing signed by both parties.
12.2 Third Party Technology. Certain software programs and services provided by third parties (“Third Party Technology”) may be provided for use as part of the Services, subject to the licenses of their respective proprietors. The provisions of these Terms shall apply to all Third Party Technology and to such third parties that have the right to grant licenses for the use of the Third Party Technology (“Third Party Technology Providers”) as if they were the Services and Scanta, respectively, unless they are specifically listed and addressed at www.trupulse.ai/about-us/third-party-trademarks-and-copyrights/, in which case, such Third Party Technology Provider’s licenses terms will apply with respect to those specific Third Party Technology.
12.3 Government Restricted Rights. This provision applies to Services acquired directly or indirectly by or on behalf of any government. The Services are commercial services, licensed on the open market at market prices. Any use modification, reproduction, release, performance, display, or disclosure of the Services by any government shall be governed solely by these Terms and shall be prohibited except to the extent expressly permitted by these Terms, and no license to the Services is granted to any government requiring different terms.
12.4 Feedback. You may provide Scanta feedback or suggestions regarding the Services. Scanta will be free to use such feedback and suggestions without any restriction or obligation.
12.5 Modifications. You agree that Scanta may revise these Terms at any time. In the event Scanta revises these Terms, Scanta will publish a notice containing a link to the revised Terms or upload them to its public website. You agree that Your continued use of the Service after such revisions have been made will constitute your acceptance of such revised Terms.
12.6 Questions? Should You have any questions concerning these Terms, contact Scanta Inc., 50 Moulton Street, San Francisco Ca 94123.
