These Terms of Service constitute an agreement (this “Agreement”) for the provision of Cloud Services by Tray.io Inc., a Delaware corporation (“Tray”) and any person or entity opening an online account with Tray (“Customer”) as specified in the information provided by Customer to Tray in the online registration form. This Agreement is effective as of the date Customer clicks “Accepted and Agreed To” or a similar button in the process of opening an online account with Tray (the “Effective Date”). Customer’s use of and Tray’s provision of the Tray.io System are governed by this Agreement.
The following capitalized terms shall have the following meanings whenever used in this Agreement.
“Aggregate Data” has the meaning ascribed to it in Section 4.7 hereof.
“AUP” means Tray.io’s acceptable use policy accessible at https://tray.io/aup.
“Cloud Services” means such software and software as a service (SAAS) integration services as Tray may provide from time to time via the System, including point-to-point data migration services and integration services for enterprise platforms, to customers on a subscription basis.
“Confidential Information” has the meaning ascribed to it in Section 7.
“Customer Data” means data in electronic form input or collected through the System by or from Customer, including without limitation by Customer’s Users.
“Customer Order” means an order for access to the System entered by Customer through Tray’s online registration process on the Website or executed by Customer by means of a form of Customer Order provided by Tray, and acknowledged by such Customer (including through a click-to-agree online process or electronically-signed document exchange).
“Customization Fees” has the meaning ascribed to it in Section 3.1 hereof.
“Customization Services” means services, other than Cloud Services, provided by Tray to Customer pursuant to the Customization Services Addendum.
“Customization Services Addendum” means the optional agreement governing the provision of Customization Services to Customer.
“Documentation” means Tray’s standard manual related to use of the System, as well as any additional documentation provided to Customer in connection with this Agreement.
“Excluded Data” has the meaning ascribed to it in Section 4.6 hereof.
“Feedback” has the meaning ascribed to it in Section 6.2 hereof.
“Statement of Work” means the statement of work executed by Customer and Tray pursuant to the Customization Services Addendum.
“System” means Tray’s proprietary online platform designed for building and sharing software, SaaS and mobile application integrations, using the visual workflow editor or any major programming language.
“System Fees” has the meaning ascribed to it in Section 3.1 hereof.
“Term” is defined in Section 11.1 below.
“User” means any individual who uses the System on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
“Website” means the website owned and operated by Tray at https://tray.io.
Use of the System. During the Term and provided that this Agreement has not been terminated by either party, and in consideration of the payment of the System Fees, Customer may access and use the System pursuant and subject to: (a) the terms of any outstanding Customer Order, including such features and functions as the Customer Order provides and any limitations on the number of Users, data volume and capacity as the Customer Order imposes; and (b) AUP and Tray’s other policies posted on its Website at www.tray.io, as such policies may be updated from time to time.
Documentation: Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the System.
System Revisions. Tray may revise System features and functions at any time, including without limitation by removing such features and functions. If any such revision to the System materially reduces features or functionality provided pursuant to a Customer Order, Customer may within 30 days of notice of the revision terminate such Customer Order, without cause, or terminate this Agreement without cause if such Customer Order is the only one outstanding.
Fees. Customer shall pay Tray the System fees for the access to and use of the System (“System Fees”) in accordance with the schedule of System Fees which are posted on the Website for the relevant System Service from time to time, unless otherwise agreed by means of an executed Customer Order, and the fees for optional Customization Services (“Customization Fees”), if applicable, as specified in the Statement of Work executed by Customer and Tray under the optional Customization Services Addendum (System Fees and Customization Fees together, the “Fees”) during each Term. System Fees are dependent on the number of workflow “operations” and the number of active workflows and are further based on the length of the Term, number of Users, data volume and such other capacity limitations as may be stated in the schedule of System Fees on the Website or in the Customer Form, if applicable.
Payment of Fees. Customer authorizes Tray to charge an amount equal to the amount of the System Fees as provided in Section 3.1 hereof on a monthly basis (unless the relevant Customer Order provides otherwise) and, if the Customization Services Addendum is elected, the amount of the Customization Fees (on such dates as the Statement of Work provides), and any additional amounts as permitted by this Agreement, to the credit card and/or bank account specified in the Customer Order in advance of provision of services to Customer by means of automatic debit or credit card charge for the duration of each Term. Customer hereby agrees to keep such valid credit card and/or bank account in effect with sufficient credit limit to enable Tray to charge the Fees every month, quarter or other period of each Term, as applicable, and not to challenge such charges or to request reversal of such charges. Tray will not be required to refund the Fees under any circumstances.
Taxes. All Fees are exclusive of, and Customer is responsible for, applicable federal or national, state or provincial, or local sales, use, excise, export or other applicable taxes, except for taxes on the net income of Tray. Tray may add any such taxes to the applicable Fees.
CUSTOMER DATA & PRIVACY
Use of Customer Data. Unless it receives Customer’s prior written consent, Tray: (a) shall not access, process, or otherwise use Customer Data other than as necessary to operate and facilitate the System, to provide Cloud Services to Customer and to improve customer experience on the System; and (b) shall not intentionally grant any third party access to Customer Data, including without limitation Tray’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement or confidentiality duties. Notwithstanding the foregoing, Tray may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Tray shall give Customer prompt notice, if permitted by applicable law, 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.
Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Customer assumes such risks. Tray offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
Data Accuracy. Tray shall have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by Users.
Data Deletion. Tray may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.
Excluded Data. Customer represents and warrants that Customer Data does not and will not include, and Customer has not and shall not upload or transmit to Tray's computers, servers, network or other media, any data that is subject to heightened security requirements as a result of Customer’s internal policies or practices or by law or regulation (examples include but are not limited to the Health Insurance Portability and Accountability Act (HIPAA), the Gramm–Leach–Bliley Act (GLBA), Family Educational Rights and Privacy Act (FERPA), etc. (the "Excluded Data Laws"))(such Customer Data collectively, “Excluded Data”). CUSTOMER RECOGNIZES AND AGREES THAT: (a) TRAY HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) TRAY’S SYSTEMS, INCLUDING THE SYSTEM, ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.
CUSTOMER’S RESPONSIBILITIES AND RESTRICTIONS
Acceptable Use. Customer shall comply with the AUP. Customer shall not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties, including Customer’s affiliates, to exploit the System; (b) provide System passwords or other log-in information to any third party; (c) share non-public System features or content with any third party; or (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, Tray may suspend Customer’s access to the System without advanced notice, in addition to such other remedies as Tray may have. Neither this Agreement nor the AUP requires that Tray take any action against Customer or any User or other third party for violating the AUP, this Section 5.1, or this Agreement, but Tray is free to take any such action it sees fit.
Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer shall notify Tray immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach.
Compliance with Laws. In its use of the System, Customer shall comply with all applicable laws and regulations, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
Users & System Access. Customer is responsible and liable for: (a) Users’ use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer’s account, whether authorized or unauthorized.
IP AND FEEDBACK
IP Rights to the System. Tray retains all right, title, and interest in and to the System, including without limitation all software, system software and applications used to provide the System, including any source code, updates, improvements, enhancements, modifications or derivative works thereof, whether or not patentable, and all inventions, content, graphics, media, user interfaces, logos, and trademarks contained in, displayed, performed or reproduced through the System.. This Agreement is an agreement for services and does not grant Customer any intellectual property license or rights in or to the System or any of its components. Customer understands and agrees that the System and its components are protected by copyright and other laws.
Feedback. Tray has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Tray, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Tray’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Tray’s products or services.)
“Confidential Information” refers to the following items Tray discloses to Customer: (a) any document Tray marks “Confidential”; (b) any information Tray orally designates as “Confidential” at the time of disclosure, provided Tray confirms such designation in writing within seven (7) business days; (c) the Documentation, this Agreement, Customer Order, the Customization Services Addendum, Statements of Work and any communications between Tray and Customer in relation to this Agreement or the Customization Services Addendum, whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information disclosed by Tray, whether or not marked or designated “Confidential.” Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Customer.
Nondisclosure. Customer shall not use Confidential Information for any purpose other than the use of the System for its ordinary internal business purposes (the “Purpose”). Customer: (a) shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Article 7; and (b) shall not disclose Confidential Information to any other third party without Tray’s prior written consent. Without limiting the generality of the foregoing, Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify Tray of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give Tray prompt notice of any such legal or governmental demand and reasonably cooperate with Tray in any effort to seek a protective order or otherwise to contest such required disclosure, at Tray’s expense.
Injunction. Customer agrees that breach of this Article 7 would cause Tray irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Tray will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
Termination & Return. With respect to each item of Confidential Information, the obligations of Section 7.1 above (Nondisclosure) will terminate five (5) years after the date of disclosure. Upon termination of this Agreement, Customer shall return all copies of Confidential Information to Tray or certify, in writing, the destruction thereof.
Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Tray will retain all right, title, and interest in and to all Confidential Information.
REPRESENTATIONS & WARRANTIES
From Tray. Tray represents and warrants that it is the owner of the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Tray’s representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by Tray. In the event of a breach of the warranty in this Section 8.1, Tray, at its own option and expense, will promptly take the following actions: (a) secure for Customer the right to continue using the System; (b) replace or modify the System to make it non-infringing; or (c) terminate the infringing features of the Cloud Services and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Tray’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 8.1 and for potential or actual intellectual property infringement by the System.
From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
Warranty Disclaimers. Except as provided in Section 8.1 above, CUSTOMER ACCEPTS THE SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) TRAY HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) TRAY DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) TRAY DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
Customer shall defend, indemnify, and hold harmless Tray and each of the Tray Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Users or by Customer's employees, as well as by Customer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Customer’s account, including without limitation by Customer Data; and (d) claims that use of the System through Customer’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Tray’s negligence. Customer’s obligations set forth in this Article 9 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Tray will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Tray Associates” are Tray’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
LIMITATION OF LIABILITY
Dollar Cap. VENDOR’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF THE FEES ACTUALLY PAID BY CUSTOMER TO TRAY IN A PERIOD OF TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH CUSTOMER PRESENTS A CLAIM TO TRAY WITH RESPECT TO TRAY’S BREACH OF TRAY’S OBLIGATIONS UNDER THIS AGREEMENT.
Exclusion of Consequential Damages. IN NO EVENT WILL TRAY BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF TRAY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 10, Tray’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Tray’s liability limits and other rights set forth in this Article 10 apply likewise to Tray’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
TERM AND TERMINATION
Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue for the initial term selected by the Customer in the online registration process or as specified in a Customer Order, if any. Following its expiration, the Term will renew for successive terms equal to the initial term specified in the Customer Order, unless either party refuses such renewal by written notice to the other party 30 or more days before the renewal date.
Termination for Cause. Either party may terminate this Agreement or any Customer Order if the other party: (i) fails to cure any material breach (including, without limitation, Customer's failure to pay the Fees) of this Agreement within thirty (30) days after written notice of such breach; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter).
Effects of Termination. Upon termination of this Agreement, Tray shall discontinue Customer’s access to the System and Customer shall cease all use of the System and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay the Fees (unless the termination is by Customer for cause); (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9 (Indemnification), 10 (Limitation of Liability) and 12 (Publicity); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
In further consideration of the rights granted hereunder to Customer, Customer agrees to permit Tray to use Customer's name and trademarks and service marks to identify Customer as a Tray customer on the Website, in Tray’s marketing materials and in other sales and marketing activities, provided that Customer does not notify Tray in writing of its revocation of such permission. Customer agrees to cooperate with Tray in reasonable publicity efforts involving the System, such as, for example, media releases and marketing materials in accordance with Tray's reasonable request.
Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Tray employee or contractor will be an employee of Customer.
Notices. Tray may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to Tray, and such notices will be deemed received 72 hours after they are sent in writing and if delivered personally, mailed via registered or certified mail (return receipt requested and postage prepaid), given by facsimile (confirmed by certification of receipt) or sent by courier (confirmed by receipt) addressed to 62 Shoreditch High Street, London, E16JJ United Kingdom.
Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Tray’s express written consent. Except to the extent forbidden in this Section 13.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of California, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of the County of San Francisco, California.
Headings. The section headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.
Technology Export. Customer shall not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by Tray or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
Acceptance. CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE PERSON ACCEPTING THIS AGREEMENT ON CUSTOMER’S BEHALF THROUGH TRAY’S ONLINE REGISTRATION PROCESS OR BY MEANS OF A CUSTOMER ORDER REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS. Customer further acknowledges that this Agreement does not have to be signed in order to be binding. Customer will have indicated its assent to the terms of the Agreement by clicking on the "Accepted and Agreed to" (or similar button) that is presented to Customer at the time of its opening of an online account with Tray and submitting an order for the Cloud Services through Tray’s online registration process on the Website or by executing and transmitting to Tray a Customer Order.