Terms of Service

Effective Date: September 23, 2024

Welcome! This website and the services offered herein are owned and operated by TrailB Technologies LLC, a California limited liability company (“TrailB”). TrailB, a Procore certified partner, makes certain software services available via the Procore App Marketplace and otherwise.

Please review this page carefully. These Terms of Service constitute a legal contract between you, our customer (“Customer”), and TrailB and set forth the terms and conditions under which TrailB will make its Software (as defined below) and related Services (as defined below) available to Customer according to Customer’s Construction Volume and Project Count as set forth below. By using our Services, you agree to be bound by and comply with all the terms and conditions set forth below (these “Terms of Service”); (ii) the TrailB terms of use located at www.trailb.tech/terms-of-use/ (as the same may be updated from time to time, the “Terms of Use”); and (iii) the TrailB privacy policy located at www.trailb.tech/privacy-policy/ (as the same may be updated from time to time, the “Privacy Policy”). We may change these Terms of Service or modify any features of our Services at any time without notice. The most current version of these Terms of Service can be viewed at www.trailb.tech/terms-of-service. You accept any changes to these Term of Service by continuing to use our Services after we post the changes. If you do not agree to these Terms of Service, do not use our Services.

1. VOLUME AND FEES. TrailB will make the Software and related Services set forth below available to Customer in exchange for the fees set forth of the TrailB Site (as defined below) according to (i) the aggregate dollar value of construction work performed, planned or put in place by Customer each year on the Procore platform (“Construction Volume”); and (ii) the total number of unique Procore construction projects Customer has purchased with TrailB(the “Project Count”). TrailB may adjust the fees it charges for its Services at any time and will adjust the fee it charges Customer each month as Customer’s Construction Volume and/or Project Count changes over time.

2. DEFINITIONS. In these Terms of Service, the following terms shall have the following meanings, and such meanings shall apply to both singular and plural forms of any such terms:

“TrailB Materials” means the Software, APIs, Documentation and TrailB Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by TrailB or any subcontractor or Third-Party Provider of TrailB in connection with the Services or otherwise comprise or relate to the Services or TrailB Systems, including, for the purposes of these Terms of Service, as between the parties, TrailB Third-Party Tools and Data. For the avoidance of doubt, TrailB Materials include Usage Data.

“TrailB Site” means https://trailb.tech/ including all subdomains and as the same may be updated from time to time.

“TrailB Systems” means the information technology infrastructure used by or on behalf of TrailB in performing the Services, including all computers, software, TrailB Site, any TrailB application designed for mobile or other specific devices, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by TrailB or through the use of Third-Party services.

“TrailB Third-Party Tools and Data” means the Third-Party tools, software, services, Third-Party Provider Content, content, materials, information, documents, specifications, products, equipment or components of or relating to the Services that are procured by TrailB from Third-Party Providers and with which any or all of the Services, including the Software, interoperate.

“Customer Data” means information, data and other content, but excluding Usage Data, in any form or medium, which (i) is uploaded or transmitted directly or indirectly by Customer or an Authorized User to TrailB by or through the Services; (ii) is directly output from the Processing of such information, data or content by or through the Services; or (iii) is created by Customer and maintained by Customer within the Services. For clarity, Customer Data includes Customer Personal Information.

“Customer Systems” means Customer’s, or any Authorized User’s, information technology infrastructure, including without limitation or other computers, software, hardware, databases, electronic systems (including database management systems), networks, telephones, telecommunications connections, whether operated directly by Customer or any Authorized User, Third-Party Provider or Distributor.

“Customer Third-Party Services and Data” means any Third-Party services, hardware, data, information, or content that are procured by Customer from Third-Party Providers to interoperate with the Services.

“Access Methods” means the user identifiers and passwords used to verify an Authorized User’s credentials to use the Services pursuant to these Terms of Service.

“Affiliate” means an entity either directly or indirectly Controlled by, Controlling or under common Control (as defined below) of a party.

“API” means any application program interface that TrailB makes available hereunder.

“Applicable Privacy Laws” means all laws, regulations, rules and guidance pertaining to privacy, data processing and data protection applicable to TrailB’s Processing of Personal Information in connection with TrailB’s provision of and making available of the Services.

“Authorized User” means those employees, agents, independent contractors, and customer(s) who are authorized by TrailB to use Services, and who have been supplied Access Methods.

“Claims” means all claims, demands, losses, liabilities and damages (including taxes and related penalties if applicable), and all related costs and expenses, including reasonable legal and professional fees, expert fees and disbursements, and costs of investigation, litigation, settlement, judgment and appeal, if any.

“Control” (and its variants set forth above) means having a more than fifty percent (50%) equity voting interest or the sole power to direct or cause the direction of the management or policies of the entity, whether through the ability to exercise voting power, by contract or otherwise.

“Confidential Information” means the proprietary materials and information of each party supplied to the other party hereunder, or to which the other party gains access as the result of the privileged relationship created by these Terms of Service constitute the proprietary and confidential information of the disclosing party.

“Distributor” means a Third-Party distributor or vendor over whose network or through whose services Customer may use the Services.

“Documentation” means any written specifications, manuals or instructions for the Services that TrailB specifically provides or makes available for Customer through Customer’s account, as well as any then-current general minimum Customer System requirements as published by TrailB (as may be updated from time-to-time).

“Feedback” means all suggestions, input, information, comments, or other feedback provided by or on behalf of Customer to TrailB with respect to the Services or TrailB’s business, but excludes Customer Data.

“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (a) computer, software, firmware, hardware, system or network; or (b) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby.

“Intellectual Property Rights” means all intellectual property and other proprietary rights, including, without limitation, all rights provided under trade secret law, patent law, copyright law, trade mark or service mark law, design patent or industrial design law, semi-conductor chip or mask work law, and any other statutory provision or common law principle which may provide a right in either ideas, formulae, algorithms, concepts, inventions, designs or know-how, whether registered or not and including all applications therefor.

“Modifications” means any corrections, improvements, translations, alterations, adaptations, revisions, withdrawals, additions, developments, as well as new versions or regular enhancements, changes, upgrades or updates; and “Modify” shall mean the creation of any of the foregoing. For clarity, Modification does not include additional or wholly new modules, products or services.

“Personal Information” means (a) information about an identified or identifiable individual; (b) any information that when combined with such individually identifiable information identifies an individual; or (c) information that is otherwise protected under Applicable Privacy Laws.

“Process” means to create, obtain, acquire, record, access, organize, alter, use, store, maintain, copy, aggregate, disclose, erase, destroy, dispose of or otherwise process. “Processing” and “Processed” have correlative meanings.

“Services” means the software services made available by TrailB for use by Customer, including the making available of the Software and any Modifications to such services and/or software, as may be subscribed to by Customer hereunder, but not including TrailB Third-Party Tools and Data.

“Software” means the TrailB software application(s) and other software including COPE (https://marketplace.procore.com/apps/extracts-pro), and all Modifications of the foregoing, that TrailB makes available for use as part of the Services whether through the TrailB Site or otherwise.

“Third-Party” means any other person or entity who is not a direct party to these Terms of Service.

“Third-Party Provider” means a supplier of data, information, content, software, services or other items or infrastructure that are part of or otherwise used in connection with the Services to include those set forth at https://trailb.tech/subprocessors.

“Use” or “use” of the Services means to “access and use” the Services.

“Usage Data” means information, data and other content collected from, as well as insights, ideas, observations and know-how generated from, TrailB’s monitoring of usage and interaction with the Services by Authorized Users that is sufficiently different from Customer Data (including Personal Information) that Customer Data cannot be reverse engineered other otherwise identified from the inspection analysis or further Processing of such data.

“Work Product” means (in any form including source code) any and all processes, methods, formulas, algorithms, reports, programs, manuals, software, flowcharts and systems and any improvements, enhancements, or modifications to any of the foregoing, which are developed, prepared, conceived, or made by TrailB as part of, in connection with, or in relationship to the performance of Services pursuant to these Terms of Service.

Other terms are defined elsewhere in the text of these Terms of Service.

3. TERM & TERMINATION; FEES.

3.1 Term/Termination/Suspension.

3.1.1 Term. These Terms of Service shall apply to Customer and all personnel of Customer commencing on the very first day Customer makes any use of the Services and continuing in effect thereafter for as long as Customer makes any further use of the Services whatsoever.

3.1.2 Termination for Breach; Insolvency. TrailB may terminate Customer’s or any Authorized User’s use of any or all of the Services and TrailB Materials and without liability to TrailB (i) upon 30 day notice to Customer for any reason; (ii) in the event of a material breach of these Terms of Service which is not cured within 10 days of written notice of such material breach; provided, however, such termination shall not take effect if Customer cures or corrects the breach within such 10 day notice period; or (iii) if Customer is adjudicated as bankrupt or if a petition in bankruptcy is filed by or against the other party (and such petition is not dismissed within 20 calendar days) or if the other party makes an assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy act or insolvency laws.

3.1.3 Suspension of Services. In the event that TrailB learns of any of the following described circumstances, then TrailB may immediately suspend or disable Customer’s or any Authorized User’s use of any or all of the Services and TrailB Materials, without liability to TrailB: (a) any breach of Section(s) 4, 5, or 6.2; (b) any circumstance that TrailB reasonably and in good faith believes requires temporary suspension of the Services in order to protect the Services, TrailB, TrailB Materials, any TrailB Third-Party Provider, or any of TrailB’s other customers or their data, for clarity including for example but not exclusively cases of cyber-attack, Customer data breach or physical security risk to equipment; or (c) if Customer does not cure any late payment hereunder within 10 days of the date of TrailB’s notice regarding such late payment, TrailB will give Customer reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension is based, unless TrailB determines, in its reasonable judgment, that a suspension on shorter or contemporaneous notice is necessary to protect the Services, TrailB, TrailB Materials, any TrailB Third-Party Provider, or any of TrailB’s Customers or their data from imminent risk. In the event that TrailB suspends use of the Service pursuant to this Section 3.1.3, TrailB will promptly inform Customer in writing, and will use reasonable efforts to limit the suspension to the affected portion(s) of the Services, and will work with Customer to resolve the issue(s) causing such suspension.

3.1.4 Effect of Termination. In addition to any other termination obligations hereunder, the below provisions shall apply to any termination of Customer’s use of the Services.

(1) Customer shall immediately cease using any Services, TrailB Third-Party Tools and Data and TrailB Materials. Customer shall within 30 days: (a) pay all agreed upon sums owing to TrailB under these Terms of Service to the date of such termination; (b) return to TrailB, or at TrailB’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or that are based on, any TrailB Materials or other TrailB Confidential Information; (c) permanently erase all TrailB Materials and other TrailB Confidential Information, as well as all electronic files containing, reflecting, incorporating, or that are based on TrailB Confidential Information or TrailB Materials, from all Customer Systems; and (d) upon TrailB’s request, certify to TrailB in a signed written instrument that it has complied with the requirements of this Section.

(2) Notwithstanding anything to the contrary in these Terms of Service, with respect to information and materials then in its possession or control: (a) TrailB may retain Customer’s Confidential Information and TrailB may retain Customer Data, in each case, in its then current state and solely to the extent and only for so long as required by applicable law, rule or regulation; and (b) TrailB may retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course (up to 180 days following the date of termination of the Services). All information and materials described in this section will remain subject to all confidentiality, security and other applicable requirements of these Terms of Service.

3.1.5 Survival. Notwithstanding the termination of the Services, all obligations which either expressly or by their nature are to continue after such termination shall survive and remain in effect, including, without limitation, Sections 3.1.4, 3.1.6, 3.2.1, 3.2.2, 4, 6 and 8.

3.2 General Services Restrictions and Obligations; Representations and Warranties.

3.2.1 General Customer Obligations. Customer shall: (a) obtain and maintain all necessary licenses, consents, and permissions necessary for TrailB, its contractors and agents to perform their obligations under these Terms of Service; and (b) comply with all applicable laws, rules, and regulations applicable to its use of the Services, TrailB Materials and Customer Third-Party Services and Data, including privacy laws, securities laws, and export laws.

3.2.2 Responsibility. Customer shall be responsible for its, and any Authorized User’s (a) compliance with, and breach of, (i) these Terms of Service; (ii) the Terms of Use; and (iii) the Privacy Policy; and (b) any conclusions, decisions or actions based on their use of the Services, TrailB Materials or Customer Third-Party Services and Data. None of Customer or any Authorized User may use the Services or any TrailB Materials other than in the manner specifically identified in these Terms of Service.

3.2.3 Access Methods. Authorized Users may only use the Services via the Access Method(s) provided by TrailB. Customer is responsible for protecting the security and integrity of all Access Methods. Customer shall hold in strict confidence all administrative Access Methods. Customer is responsible for any acts or omissions occurring under any administrative Access Methods, other than those administrative Access Methods which are under the control or care of TrailB.

3.2.4 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by this Section 3, then Customer shall, immediately: (a) take all reasonable and lawful measures within its control necessary to stop the activity or threatened activity and to mitigate its effects; and (b) notify TrailB of any such actual or threatened activity.

3.2.5 Customer Systems. As between the parties, Customer has and will retain sole control over the operation, maintenance and management of, and all use of, any Customer Systems, and sole responsibility for all use and receipt of the Services and TrailB Materials by any person by or through Customer Systems or any other means controlled or directed by Customer or Authorized User, including any information, instructions or materials provided by same to the Services or TrailB.

3.2.6 Cooperation. Customer shall: (a) provide reasonable cooperation and assistance as TrailB may reasonably request to enable TrailB to exercise its rights and perform its obligations under and in connection with these Terms of Service; (b) promptly communicate to TrailB all changes to Customer’s resources, equipment, facilities and software, that impact or may impact the Services; and (c) carry out all other Customer responsibilities set out in these Terms of Service in a timely and efficient manner. TrailB is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under these Terms of Service.

3.2.7 Modifications; Upgrades; New Services. TrailB reserves the right to Modify any of the Services or TrailB Materials and any portions or configurations thereof, from time to time; provided that no such Modification may materially diminish any functionality or feature of the Software Service material to Customer’s use of the Software. TrailB may, in its sole discretion, make available, for additional fees, additional or wholly new modules, services and products that have different functionality from the Services initially licensed to Customer.

3.2.8 TrailB Third-Party Tools and Data. Except with respect to TrailB’s Hosting Providers, TrailB shall be responsible for all TrailB Third-Party Tools and Data provided as part of the Services. TrailB shall maintain data processing operations in the following regions: United States and the European Union.

3.2.9 Customer Third-Party Services and Data. Customer may from time to time procure Customer Third-Party Services and Data. Any acquisition by Customer of any such Customer Third-Party Services and Data, and any exchange of data between Customer and any Third-Party Provider, is solely between Customer and the applicable Third-Party Provider. TrailB does not warrant or support Customer Third-Party Services and Data.

3.2.10 Promotional Material. If TrailB or Customer wishes to use promotional material referring to the other party, its services or marks, the party desiring to use such material shall, before using it, submit such material to the other party for review and written approval. The parties agree that any of them can withhold approval until the promotional material is agreeable to such party.

3.2.11 Representations and Warranties. Customer represents and warrants that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to agree to these Terms of Service; and (c) the fulfillment of its obligations under these Terms of Service will not breach its contractual or other obligations to third parties, and will not breach any applicable laws.

3.3 Fees and Charges.

3.3.1 Fees and Charges; Payment Terms. TrailB will debit or charge Customer’s bank account or credit card, as the case may be, on an annual basis for the fees and charges due hereunder in United States Dollars, plus all applicable Taxes. Alternatively, if TrailB choses or agrees to invoice Customer, Customer shall pay all fees and charges due hereunder in United States Dollars, plus all applicable Taxes, within 15 days after the date of TrailB’s invoice. These fees and charges shall be due and payable by Customer to TrailB regardless of whether Customer uses any Services.

3.3.2 Invoice Issue. Customer will notify TrailB in writing of any issue it has with any invoice or portion thereof within fifteen (15) days of Customer’s receipt of an invoice giving rise to such an issue (the “Invoice Issue Notice”). TrailB and Customer will work in good faith to resolve any such issue within fifteen (15) days from the date of an Invoice Issue Notice. TrailB will continue performance while any such issue is resolved, provided Customer pays all undisputed, proper charges when due. If Customer and TrailB fail to resolve the issues underlying an Invoice Issue Notice through good faith negotiations within thirty (30) days from the date of such Invoice Issue Notice, the dispute will be resolved in accordance with Section 8 below.

3.3.3 Late Payment. TrailB may assess a late charge at a rate of (i) 1% per month; or (ii) the maximum amount allowed under the law, whichever shall be greater, on all amounts due and not paid within 30 days of the date of TrailB’s invoice until the time of TrailB’s receipt of payment.

3.3.4 Taxes.TrailB’s rates, fees and other charges hereunder do not include any and all present or future taxes, levies, customs, duties, deductions, charges or withholdings, and all liabilities (including penalties, additions to tax, interest and expenses) with respect thereto, including but not limited to value added tax, sales tax, consumption tax and similar taxes or duties, as well as any similar city, municipal, provincial or state taxes whether currently imposed or to be imposed in the future, but excluding always taxes or duties determined on TrailB’s gross or net income, personnel or property (collectively, hereinafter referred to as “Taxes”), for which Customer will be responsible. For any Taxes that TrailB is required to withhold or remit to the applicable taxing authority, TrailB shall include each such Tax as a separate line item on its applicable invoice, shall timely remit such Taxes to the applicable taxing authority and shall indemnify Customer from any failure thereof by TrailB. If any Taxes are found to be applicable or if Customer or any person paying to TrailB on behalf of Customer (including banks) shall be required by Law to deduct any Taxes from or in respect of any sum payable to TrailB hereunder, then: (a) the sum payable to TrailB shall (at the same time and on the same conditions as applied to the sum payable) be increased as may be necessary such that following all required deductions, TrailB receives the amount equal to the sum it would have received had no such deductions been made; and (b) Customer shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with the applicable Law. Upon the request of TrailB, Customer shall promptly take all reasonable and proper actions, including, without limitation, the completion of forms, certificates and documents and the provision of information to the relevant taxing authority, of the kind required under the applicable Law.

4. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. Each party shall hold the Confidential Information of the other party in strict confidence and shall treat such Confidential Information with the same degree of care as it accords its own proprietary information of a similar nature, and in no event will it use less than reasonable care to protect such Confidential Information. Without limiting the foregoing, each party (i) shall store all of the other party’s Confidential Information in secure environments when not in use; (ii) shall not remove or modify any burn-in warnings or watermarks included on physical assets containing any Confidential Information of the other party; (iii) shall employ reasonable security procedures sufficient to prevent any theft or unauthorized access, copying, exhibition, transmission or removal of the other party’s Confidential Information from its facility; and (iv) shall not use, transfer, or exploit the Confidential Information of the other party to directly or indirectly compete with the disclosing party and will not use, transfer, or exploit the Confidential Information to aid any other individual or organization to directly or indirectly compete with the disclosing party. Each party acknowledges that the Confidential Information is highly confidential and that unauthorized use or disclosure of such Confidential Information will result in serious, irreparable harm for which the other party’s remedies at law would be inadequate. Each party agrees that if any unauthorized use or disclosure occurs, the other party will be entitled, in addition to any other remedies available to it at law, in equity or otherwise, to the issuance of injunctive or other equitable relief. Each party shall immediately notify the other party of any loss or theft of or unauthorized access to any of the Confidential Information and shall use its best efforts, at the receiving party’s own cost and expense, to recover all lost or stolen materials. Notwithstanding the above, neither party will have liability to the other with regard to any Confidential Information of the other which the receiving party can prove: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the receiving party; (ii) was known to the receiving party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; or (iii) is disclosed with the prior written approval of the disclosing party. Confidential Information may be disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the receiving party will provide prompt notice of such court order or requirement to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Confidential Information so disclosed will continue to be treated as Confidential Information as between the parties hereto. Notwithstanding the foregoing, either party may provide information about the terms and status hereof on a confidential basis to its subcontractors, lenders, private investors, legal counsel, accountants, auditors and other professional advisors. Each party acknowledges that the restrictions and obligations in this Section 4 are reasonable and necessary to protect the other party’s interests and in the event of a violation of these restrictions or obligations, remedies at law may be inadequate and a violation may cause irreparable damages. Accordingly, notwithstanding anything to the contrary herein, each party shall be entitled to immediately seek injunctive relief, without posting bond or other security, against the other party or the other party’s employees or agents for any violation thereof.

5. SECURITY; PERSONAL INFORMATION; DISASTER RECOVERY.

5.1 Security. TrailB shall be responsible for implementing and complying with commercially reasonable measures (including technical and organizational security measures) designed to maintain the security and non-disclosure of Customer Data in the course of providing the Services under these Terms of Service. Each party acknowledges and agrees that it will comply with all Applicable Privacy Laws in relation to data protection and privacy, and that each party shall be individually and separately responsible for its own compliance. Each party agrees that it has all rights and has fulfilled all legal obligations necessary to provide data to the other party for the other party’s processing in compliance with these Terms of Service.

5.2 Personal Information. TrailB acknowledges that Customer Data may include Personal Information of Authorized Users (“Customer Personal Information”). With respect to such Customer Personal Information, TrailB shall: (a) use Customer Personal Information only for the purposes necessary to provide the Services; and (b) maintain Customer Personal Information only for so long as may be required to fulfill the purposes for which Customer Personal Information was collected, or as may be permitted herein.

5.3 CCPA. For the purposes of this section, “Aggregate Consumer Information,” “Commercial Purpose,” “Personal Information,” “Sell,” and “Service Provider” shall have the meanings set forth in the California Consumer Privacy Act of 2018 (“CCPA”). With respect to the CCPA, TrailB and Customer hereby agree that TrailB is a Service Provider to Customer with respect to any Personal Information that TrailB receives from Customer. TrailB shall not (i) Sell Personal Information; or (ii) retain, use, or disclose any Personal Information for any purpose (including retaining, using, or disclosing the Personal Information for a Commercial Purpose) other than for the specific purposes permitted in these Terms of Service. For the avoidance of doubt, the foregoing prohibits TrailB from retaining, using or disclosing Personal Information outside of the direct business relationship between TrailB and Customer. TrailB hereby certifies that it understands the obligations under this section and will comply with them.

5.3.1 No Sale. The Parties acknowledge and agree that TrailB’s access to Personal Information is not part of the consideration exchanged by the Parties in respect of any Agreement.

5.3.2 Usage Data. To the extent these Terms of Service permit TrailB to collect and use Usage Data, such use shall be permitted only to the extent any such data constitutes “Aggregate Consumer Information” or has been “Deidentified”, and TrailB complies with all requirements under the CCPA applicable thereto. To the extent Personal Information has not been Deidentified or turned into Aggregate Consumer Information, TrailB agrees that it will only retain, use, or disclose such information only for the specific purpose of providing the Services.

5.4 Customer Data. As between the parties, Customer owns all rights, title and interest in and to Customer Data and Customer is the data controller and TrailB is the data processor. Customer hereby grants to TrailB and its Affiliates a non-exclusive, worldwide, royalty-free, fully paid-up license to use and Process (including, without limitation, to host, store, copy, record, transmit, maintain, and display), including via TrailB’s Third-Party Providers, Customer Data and any Customer Third-Party Services and Data for the purposes of (i) making available and providing the Services hereunder; and (ii) research, statistical, data analysis, product improvement, marketing, sales tracking or similar purposes in all cases in compliance with the CCPA as set forth above. Customer is solely responsible for the following with respect to any Customer Data and Customer Third-Party Services and Data: (a) compliance with the Terms of Use; (b) all storage, backup and retrieval thereof not used by TrailB to provide or make available the Services; (c) any transmission errors, corruption, or compromise thereof transmitted via Distributors or other Third-Party Providers, or otherwise transmitted via the internet; and (d) the condition, completeness, timeliness, backup, legality, reliability, integrity, accuracy and quality thereof. Customer agrees that TrailB does not review, edit, substantiate, determine or otherwise have any responsibility for the accuracy, quality, integrity, legality, reliability, or appropriateness of any Customer Data or Customer Third-Party Services and Data. For certainty, TrailB is not responsible for and has no liability for Customer not storing and backing-up all Customer Data. Customer agrees that TrailB may transfer Customer Data to, and Process Customer Data via, providers of hosting and backup services for the purposes of TrailB providing and making available the Services.

5.5 Government Demand. Notwithstanding anything to the contrary in these Terms of Service, TrailB may disclose Customer Data as required by applicable law, rule or regulation, including Applicable Privacy Law. TrailB shall, to the extent legally permitted, give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.

6. ADDITIONAL TERMS AND CONDITIONS.

6.1 Feedback. Customer may from time to time communicate Feedback. Customer agrees that all Feedback is and shall be given entirely voluntarily. Feedback, even if designated as confidential by Customer shall not, absent a separate written agreement, create any confidentiality obligation for TrailB. TrailB shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit all such Feedback as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise.

6.2 TrailB’s Proprietary Rights; Third-Party Beneficiaries; Equitable Relief. All right title and interest in and to the Software, Services and TrailB Materials, and any Work Product, including, without limitation, all Intellectual Property Rights and other proprietary rights therein, are and shall remain the sole and exclusive property of TrailB, its Affiliates and their Third-Party Providers, as the case may be. This Agreement does not grant any Intellectual Property Rights or license under any Intellectual Property Rights in or to the Services or TrailB Materials. All rights in and to the Services and TrailB Materials are expressly reserved by TrailB and the respective Third-Party Providers and their respective permitted successors and assigns and nothing herein, express or implied, is intended to or will confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of these Terms of Service. Customer shall not violate the Intellectual Property Rights and other proprietary rights of TrailB, its Affiliates, and their Third-Party Providers in the Services and TrailB Materials, including, but not limited to, any contractual, statutory, or common-law rights, during and after the term of Services. Customer shall not remove any proprietary notice of TrailB, its Affiliates or their Third-Party Providers. Our Third-Party Providers have no obligations or liability to Customer under these Terms of Service but are Third-Party beneficiaries of these Terms of Service. Upon any termination or suspension of Services, Customer shall immediately cease all use of the Services and TrailB Materials. Customer shall comply with all reasonable requests made by TrailB to protect the rights of TrailB at their expense, its Affiliates, and their Third-Party Providers in the Services and TrailB Materials. As between the parties, all Customer Data and Customer Systems, and all Intellectual Property Rights therein, shall remain the sole and exclusive property of Customer, and, except in the course of fulfilling its obligations hereunder, TrailB shall not use, disclose, or otherwise share such with any Third-Party including but not limited to any other financial service provider. The parties agree that any breach or threatened breach of Section 4 or this Section 6.2 shall cause a party, its Affiliates and/or their Third-Party Providers irreparable injury that cannot be adequately compensated for by means of monetary damages. Any breach thereof may be enforced by the affected party, its Affiliates, or their Third-Party Providers by means of equitable relief (including, but not limited to, injunctive relief) in addition to any other rights and remedies that may be available, without the need to post a bond or other security.

6.3 DISCLAIMERS. EXCEPT AS EXPRESSLY SPECIFIED IN THIS AGREEMENT, WITH RESPECT TO THE SERVICES, TRAILB MATERIALS, THIRD-PARTY TOOLS AND DATA, CUSTOMER THIRD-PARTY SERVICES AND DATA, WORK PRODUCT, AND ANY DATA OR RESULTS OBTAINED OR OUTPUT BY USING ANY OF THEM: (A) CUSTOMER’S OR AUTHORIZED USER’S, USE THEREOF ARE ALL AT THEIR SOLE RISK; (B) ARE PROVIDED “AS IS” AND “AS AVAILABLE”; AND (C) THERE ARE NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED (WHETHER ARISING UNDER COMMON LAW, STATUTE, COURSE OF DEALING OR TRADE, OR OTHERWISE) (I) REGARDING ANY OF THEM, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, QUALITY, MERCHANTABILITY, QUALITY, NON-INFRINGEMENT, CURRENCY, COMPLETENESS, ACCURACY, ACCESSIBILITY, RELIABILITY, SECURITY, AVAILABILITY, OR UNINTERRUPTED USE; OR (II) THAT ANY OF THEM WILL MEET ANY REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE (INCLUDING FROM HACKING OR OTHER UNAUTHORIZED INTRUSION, SUCH AS DENIAL OF SERVICE ATTACKS), ERROR FREE, OR FREE OF HARMFUL CODE.

6.4 LIABILITY.

6.4.1 LIMITATION. IN NO EVENT WILL THE MAXIMUM CUMULATIVE LIABILITY OF TRAILB OR ITS AFFILIATES, FOR ANY AND ALL LIABILITIES AND CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT (REGARDLESS OF WHEN MADE) EXCEED THE TOTAL FEES PAID BY CUSTOMER TO TRAILB HEREUNDER IN THE 12 MONTH PERIOD PRECEDING THE DATE ON WHICH SUCH LIABILITY IS ALLEGED TO HAVE ARISEN, EXCLUDING SUCH AMOUNTS PAID TO TRAILB DURING THAT PERIOD FOR REIMBURSEMENT OF COSTS AND EXPENSES.

6.4.2 EXCLUSIONS. IN NO EVENT WILL TRAILB OR ITS AFFILIATES BE LIABLE FOR ANY OF THE FOLLOWING DAMAGES OR LOSSES WHATSOEVER ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT (A) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY OR PUNITIVE DAMAGES OR LOSSES; (B) LOSS OF BUSINESS OR GOODWILL, SALES, USE, PROFITS, OR REVENUE, OR LOSS OF OR CORRUPTION TO DATA OR CONTENT; OR (C) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OF SERVICES.

6.4.3 APPLICATION. THIS SECTION 6.4 APPLIES TO ALL CAUSES OF ACTION, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, FOR FUNDAMENTAL BREACH, HOWEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS ITS ESSENTIAL PURPOSE, AND EVEN IF A PARTY IS ADVISED IN ADVANCE OF THE DAMAGES OR LOSSES IN QUESTION OR EVEN IF SUCH DAMAGES OR LOSSES WERE FORESEEABLE. THE PARTIES HAVE FREELY AND OPENLY NEGOTIATED THIS AGREEMENT, INCLUDING THE PRICING, IN THE KNOWLEDGE THAT THE LIABILITY OF THE PARTIES IS TO BE LIMITED IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT.

6.5 INDEMNIFICATION. Customer shall indemnify, hold harmless and defend TrailB, its Affiliates, and each of their respective officers, directors, employees, agents, heirs, successors in interest from and against any and all Losses from any Third-Party claim to the extent arising from: (a) Customer Data; (b) Customer’s or any Authorized User’s breach of these Terms of Service; (c) Customer’s or any Authorized User’s, breach of any applicable laws, rules or regulations; (d) Customer’s or any Authorized User’s, fraud or willful misconduct; (d) any property damage or personal injury caused by Customer or any Authorized User; or (e) Customer’s or any Authorized User’s financial, business or commercial judgments. Customer shall not make any admission against the TrailB’s interests or enter into any settlement or compromise of any Claim in the event such settlement or compromise imposes any liability or obligation on TrailB without the TrailB’s prior written consent. Nothing in this section shall in any way diminish or abrogate an insurer’s duties, rights or obligations pertaining to defense or otherwise.

7. PUBLICITY. The parties will evaluate in good faith requests by the other to be included in additional promotional materials. Customer and TrailB have no further right to use the other party’s name in any public manner and will not issue or cause to be issued or published any press release, public announcement, public statement, website mention, blog post or similar, with respect to the relationship between the parties, the terms hereof, the transactions contemplated herein or the termination hereof, without the prior consent of the other party. Further, neither party, nor its respective officers or public relations departments shall commit any act or do anything which could reasonably be expected to bring the other party into public disrepute, contempt, scandal, or ridicule, or which could reasonably be expected to reflect unfavorably on the other party. Violation of this provision is hereby deemed an incurable, material breach allowing for immediate termination of the Services by either party in its sole discretion.

8. MISCELLANEOUS.

8.1 Independent Contractors. Customer and TrailB are independent contractors, and nothing in these Terms of Service will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Neither party is an agent or representative of the other or is authorized to make any warranties or assume or create any other obligations on behalf of the other.

8.2 Force Majeure and Uncontrollable Events. Except for the payment of money for goods delivered or services rendered, neither party will be liable for any interruption, delay or failure to perform any obligation under this agreement when such interruption, delay or failure results from causes beyond such party’s reasonable control, including any law or act of any governmental authority, war, riot, terrorism, insurrection or other hostilities, embargo, fuel or energy shortage, equipment breakdowns, power failure, pandemic, epidemic, fire, mass casualty event, flood, earthquake, act of God, strikes, lockouts, labor shortages, failure of a Third-Party to satisfy its contractual obligations, or any other similar cause.

8.3 Expenses. All expenses, including all legal, accounting, financial, advisory, consulting, and other fees incurred in connection with the negotiation or effectuation of these Terms of Service will be the obligation of the party incurring such expense, unless (and only to the extent) the parties may expressly agree otherwise in writing.

8.4 Export Controls. Customer acknowledges and agrees that the Services or TrailB Materials may be subject to export controls under United States and other export control Laws. Customer shall not directly or indirectly, whether to an Affiliate or a Third-Party: (a) export, re-export, transfer, or release (herein referred to as “export”) any component of the Services or TrailB Materials, to any prohibited or restricted destination, person, or entity; or (b) access or use or allow any Authorized User, Affiliate or Third-Party to use the Services or TrailB Materials in a manner prohibited or restricted by export control Laws. Customer shall comply with all applicable export controls Laws at all times.

8.5 Audit; Inspection. Until the termination the Services, and upon at least 14 days’ prior written notice to Customer, no more often than once per year TrailB shall have the right, during normal business hours, to audit the manner of use of the Services solely in accordance with the scope of audit agreed to by the parties in advance of such audit, each party’s consent to such scope of audit not to be unreasonably withheld, and under Customer’s reasonable supervision. TrailB will ensure that the audit is conducted in a manner that will result in minimal disruption to Customer’s business.

8.6 Governing Law; Dispute Resolution. All Agreements and the rights and obligations of the parties shall be governed by and construed and enforced under the laws of the State of California, without regard to its choice of law principles, except that the arbitration clause and any arbitration hereunder shall be governed by the Federal Arbitration Act, Chapters 1 and 2. The Convention on Contracts for the International Sale of Goods shall not apply to any Agreement. If any dispute, controversy or claim arises out of or in connection with these Terms of Service (a “Dispute”), it shall be referred, upon written notice (a “Dispute Notice”) given by one party to the other, to a senior executive from each party. Such senior executives shall seek to resolve the Dispute on an amicable basis within 14 days of the Dispute Notice being received. Any Dispute not resolved within 14 days of the Dispute Notice being received may be referred by either party to mediation before a mediator to be agreed between the parties or, failing such agreement, to be appointed by the International Institute for Conflict Prevention & Resolution (“CPR”). The parties shall equally share the costs of the mediator, the mediation venue and CPR. If either party fails or refuses to agree to or participate further in the mediation procedure or if, in any event, the Dispute is not resolved within 45 days from receipt of the Dispute Notice, the Dispute shall be referred to and finally resolved by arbitration pursuant to the Rules of Arbitration of the International Chamber of Commerce (the “ICC Rules”) by a single arbitrator appointed by mutual consent of both parties or by three arbitrators appointed in accordance with such rules in the event the parties cannot agree on a single arbitrator within 60 days from receipt of the Dispute Notice. The arbitration shall take place in Los Angeles, California and shall be conducted in English according to the International Bar Association (“IBA”) Rules on the Taking of Evidence in International Arbitration. The parties shall keep confidential: (i) the fact that any arbitration occurred; (ii) any awards awarded in the arbitration; (iii) all materials used, or created for use in, in the arbitration; and (iv) all other documents produced by another party in the arbitration and not otherwise in the public domain, except, with respect to each of the foregoing, to the extent that disclosure may be legally required (including to protect or pursue a legal right) or necessary to enforce or challenge an arbitration award before a court or other judicial authority. The arbitrators shall award to the prevailing party, if any, its costs and expenses, including its attorneys’ fees. The prevailing party shall also be entitled to its attorneys’ fees and costs in any action to confirm and/or enforce any arbitration award in any judicial proceedings.Nothing in an Agreement shall prevent either party from seeking provisional measures from any court of competent jurisdiction, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate.

8.7 Assignment. Customer shall not assign or transfer (including by operation of law) its use of the Services under these Terms of Service, without the prior written consent of TrailB and any attempted assignment or transfer shall be null and void and shall constitute a material breach of these Terms of Service. In addition to and notwithstanding the foregoing, if the ownership of Customer at any time shall pass out of the majority control of its then-current owners by sale of stock or assets, merger or otherwise, Customer shall give TrailB not fewer than 30 days’ prior written notice to the effective date of any change of control. TrailB shall have the right to terminate the Services by providing written notice to Customer within the later of 60 days following (i) receipt of such notice of change of control; or (ii) the date such change of control occurs. If TrailB elects not to exercise the foregoing termination right, any successor-in-interest to these Terms of Service as a result of the change of control shall assume all rights and obligations of Customer and shall be responsible for adhering to the terms thereof. Any attempted assignment in violation of this section will be null and void. TrailB can freely assign without consent to an Affiliate, or in the event of a merger, reorganization, or sale of substantially all of its assets. These Terms of Service shall be binding upon, shall enure to the benefit of, and shall be enforceable by the parties and their permitted successors and assigns.

8.8 Notices. All notices and other communications under these Terms of Service shall be in writing and shall be deemed to have been duly delivered if delivered by hand or sent by nationally recognized overnight carrier, or prepaid registered or certified mail, return receipt requested, with acknowledgment by the receiving party as of the date received, to the address listed in the first paragraph above, or to such other address as either party shall specify in a written notice to the other. An electronic communication shall be deemed written notice for purposes of these Terms of Service if sent to the electronic mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed received at the time the party sending Electronic Notice receives verification of receipt by the receiving party.

8.9 Headings; Interpretation. The section and subsection headings used in these Terms of Service are for reference and convenience only, and shall not affect in any way the meaning or interpretation of an Agreement. Where the word “including” or “includes” is used herein, it means “including without limitation” or “includes without limitation”, respectively.

8.10 Waiver; Severability. The failure TrailB to insist upon strict compliance with any term or condition of these Terms of Service on any occasion shall not be construed as a waiver with regard to any subsequent failure to comply with such term or condition. No waiver of any term or condition of these Terms of Service shall be effective unless agreed to in writing by the party making the waiver. If any term or condition hereof is found by a court, administrative agency or jurisdiction to be unenforceable, the remaining terms and conditions hereof shall remain in full force and effect and shall be enforceable to the maximum extent permitted by law, and the parties shall substitute a valid, legal and enforceable provision as close in legal and economic consequence as possible to the provision being struck or considered unenforceable. If the limitation of liability set forth in these Terms of Service is limited by law, then TrailB’s liability will be limited to the greatest extent permitted by law.

8.11 Entire Agreement. These Terms of Service, together with any other applicable click-through agreements Customer or any Authorized User may have entered into regarding our Services, represent the entire agreement between the parties with respect to its subject matter and supersedes all previous agreements, representations, discussions, understandings or writings between the parties with respect to its subject matter. There are no oral or written collateral representations, agreements or understandings.