Last Updated: June 29, 2021
THESE TERMS OF SERVICE (“TERMS”) GOVERN YOUR ACCESS TO AND USE OF TENACITY CLOUD CTRL SERVICES (THE “SERVICES”). YOU SHOULD CAREFULLY READ THESE TERMS. YOUR USE OF THE SITE MEANS THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AND THAT ANY INDIVIDUAL AND ANY LEGAL ENTITY ON WHOSE BEHALF SUCH INDIVIDUAL IS ACTING (“YOU” or “YOUR”) HAVE ENTERED INTO A BINDING LEGAL AGREEMENT WITH TENACITY CLOUD. IF YOU DO NOT ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THESE TOU YOU SHOULD DISCONTINUE YOUR USE OF THE SITE. IN ADDITION, WHEN USING A PARTICULAR SERVICE AND/OR ACCESSING CERTAIN MATERIALS ON OR THROUGH THE SITE, YOU SHALL BE SUBJECT TO ANY POSTED TERMS OR RULES APPLICABLE TO SUCH SERVICES OR MATERIALS, WHICH ARE IN ADDITION TO THESE TERMS. ALL SUCH TERMS OR RULES ARE HEREBY INCORPORATED BY REFERENCE INTO THESE TERMS, AND IF YOU DO NOT AGREE WITH THEM YOU SHOULD NOT USE THE SERVICE AND/OR MATERIALS. YOUR CONTINUED USE OF SERVICE PROVIDED SHALL BE DEEMED TO BE YOUR CONTINUED AGREEMENT TO ABIDE BY EACH OF THE TERMS SET FORTH BELOW.
1. NATURE OF AGREEMENT
These Terms do not obligate the parties to purchase or provide the Services (defined below). Such obligations will be specified in Your order for Services including the payment of license fees (each, an “Order Form”). Upon submitting an Order Form to Tenacity Cloud, you agree to abide by the terms of the applicable Order Form (“Order Effective Date”). An explicit conflict between these agreements will be resolved according to the following order of precedence: (1) an Order Form; and (2) these Terms.
3. SERVICE AND MATERIALS
Through the Services, Tenacity Cloud may make available to you: (a) the CTRL software, policy-based platform (the “Platform”) that provides tools to empower customers to conquer the most persistent and costly problems with scaling and operating technology within any cloud-enabled organization (collectively, “Services”); and (b) materials (such as documentation, guides, training materials, and instructional material related to the Platform (collectively, “Materials”).
Tenacity Cloud and its licensors grant to you a personal, non-exclusive, non-transferable, non-sublicensable license to: (a) to access and use the Services in accordance with the relevant documentation provided by Tenacity Cloud. In these Terms, all references to the “Services” shall be deemed to include all “Platform,” “Materials” and “Services,” unless otherwise expressly indicated. All rights not expressly granted by Tenacity Cloud to you are retained by Tenacity Cloud, and you may not use the Services and/or any element of the Services in any manner or for any purpose not expressly authorized by these Terms. The rights granted to you do not include, and are not applicable to, the design or layout of the Services, which are protected by trade dress and other laws and may not be copied or imitated in whole or in part.
5. 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 Tenacity Cloud, at its sole discretion, and is designed to allow You to evaluate the Services during such period. Tenacity Cloud 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 shall terminate.
6. RESTRICTIONS; REMOVAL
You may not access the Services if you or your products or services are competitive with Tenacity Cloud or Tenacity Cloud products or Services, except with Tenacity Cloud’s prior written consent. In addition, you may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. You will not (a) make any Service available to, or use any Service for the benefit of, anyone other than you, (b) sell, resell, license, sublicense, distribute, transfer, assign, distribute, host, rent, lease, or otherwise commercially exploit any Service or the Platform, whether in whole or in part, or include any Service in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or its related systems or networks, (g) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) frame or mirror any part of any Service, other than framing on your own intranets or otherwise for your own internal business purposes or as permitted in this Agreement, (j) access any Service in order to build a competitive product or service, or (k) reverse engineer any Service (to the extent such restriction is permitted by law). Unless otherwise indicated, any future release, update, or other addition to functionality of the Platform shall be subject to these Terms. All copyright and other proprietary notices on the Platform (or on any content displayed on the Platform) must be retained on all copies thereof.
8. MANAGED SERVICE PROVIDER
Notwithstanding Section 5 of these Terms, if it is indicated in Order Form that You provide the Services to Your Customers as a managed service provider (“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.
9. REGISTRATION AND PASSWORDS
9.1. Some areas of the Site may be accessed and used only by those authorized individuals who are registered and have an account with Tenacity Cloud. To open an account, you must complete the registration process by providing Tenacity Cloud with current, complete and accurate information as prompted by the registration form. Should Tenacity Cloud suspect that such information is untrue, inaccurate, not current or incomplete, Tenacity Cloud has the right to suspend or terminate your usage of the Site. Tenacity Cloud is entitled to rely on the information you provide and you will be responsible for updating this information to maintain it as current. Accounts are non-transferable and cannot be shared or used by more than one individual or entity.
9.2. Once you have become an authenticated user, you are responsible for maintaining the confidentiality of the Platform and Tenacity Cloud account login information and you are fully responsible for all activities that occur under the Platform and Tenacity Cloud account. You are and will be responsible for maintaining the confidentiality of that password, for all activities conducted on and with the Site that make use of that password, and for any charges or fees incurred by the use of that password, including any use you may subsequently contend was not unauthorized by you. You agree to immediately notify Tenacity Cloud of any unauthorized use, or suspected unauthorized use of your Platform or Tenacity Cloud account or any other breach of security. Tenacity Cloud cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
10. ACCOUNT INFORMATION AND DATA
10.1. You may have the right to upload information and individually-identifiable data to the Platform (“Services Data”). You represent and warrant that all Services Data you disclose or deliver to Tenacity Cloud for use in connection with the License and use of the Platform are your property, or that you have the right to disclose or deliver the Services Data and other materials to Tenacity Cloud, and that the Services Data and other materials do not infringe any copyright, trademark, trade secret, patent or other right of any third party.
10.2. Tenacity Cloud does not own any Services Data, unless Tenacity Cloud specifically tells you otherwise before you submit it. You grant Tenacity Cloud the right to use your Services Data in compliance with applicable law, in order to: (a) provide the Services in accordance with these Terms, (b) prevent or address service or technical problems, or (c) as may be required by law. We may also use your Services Data in an aggregated, de-identified and generic manner, in compliance with applicable law, for marketing, survey purposes, setting benchmarks, feature suggestions, product analytics and new product features or services, Services utilization analyses and related purposes, provided that (i) it is used only for internal administrative purposes and general usage statistics; (ii) does not identify you or your agents, representatives, customers or employees and is not attributable to such persons or entities in any way; and (iii) where your Services Data is used in this manner to create publicly disclosed general usage statistics, such statistics are used to report only the total aggregate use among Tenacity Cloud’s customers. Subject to the rights and licenses granted in these Terms, Tenacity Cloud acquires no right, title, or interest from you under these Terms in or to your Services Data.
10.3. You, not Tenacity Cloud, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Services Data and Tenacity Cloud shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Services Data, or for any actions or omissions which Tenacity Cloud takes in reliance upon your Services Data.
Tenacity Cloud and/or its licensors own and shall retain all rights, title and interests, including all intellectual property rights including but not limited to copyrights, trade secrets, trademarks, patents and “know-how”, in and to the Site, and all elements thereof. Except for the express licenses granted to you herein, you neither have nor acquire any rights, title or interests in or to the Site, or any element thereof. You reserve all of your rights, title and interest in your Services Data, provided that Tenacity Cloud may use your Services Data for business purposes.
12. MARKS AND LOGOS
All names, marks, symbols and logos used in connection with the Site are trademarks of Tenacity Cloud or other third parties (the “Marks”). Tenacity Cloud grants you no license, permission or authorization to reproduce or use any Marks, whether owned by Tenacity Cloud or a third party. You agree not to display, copy, redistribute or use any Marks in any manner for any reason without Tenacity Cloud’s prior express written consent.
13. THIRD PARTY APPLICATIONS
13.1. The Platform may contain links to third-party websites and services. If you install or enable a Third Party Application for use with a Service, you grant Tenacity Cloud permission to allow the provider of that Non-Tenacity Cloud Application to access your Services Data as required for the interoperation of that Non-Tenacity Cloud Application with the Service. We are not responsible or liable for any disclosure, modification or deletion of your Services Data resulting from access by a Non-Tenacity Cloud Application. We are not responsible or liable to you if you install, connect, enable, use or share any integration, feature, workflows, actions, or suggestions (a) authored or made available by an entity other than Tenacity Cloud, including you, or (b) designated as “Community Built” or any similar designation in the Services.
13.2 The Services may contain features designed to interoperate with Non-Tenacity Cloud Applications. To use such features, you may be required to obtain access to Non-Tenacity Cloud Applications from their providers, and may be required to grant Tenacity Cloud access to your account(s) on the Non-Tenacity Cloud Applications.
14. YOUR ADDITIONAL RESPONSIBILITIES
You are solely responsible for any and all activities that occur under your account including inputting, maintaining, and managing accurate information and ensuring that you exit or log-off from your account at the end of each session of use. You shall notify Tenacity Cloud immediately of any unauthorized use of your password or account or any other breach of security that is known or suspected by you. You shall also use your best efforts to immediately stop any copying or distribution of the Site that is known or suspected by you. Tenacity Cloud shall not be responsible for any unauthorized access to, or alteration of, your transmissions or Services Data, any material, information or data sent or received, regardless of whether the data is actually received by Tenacity Cloud, or any transactions entered into through the Service or failure to abide by these Terms.
15. COMPLIANCE WITH LAWS; PROHIBITED ACTIVITIES
You agree to abide by all applicable local, state, and federal laws, regulations, statutes, rules and ordinances, in connection with your use of the Site. Without limiting the foregoing, you shall not use the Site to: (a) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (b) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses; (c) transmit or post unlawful, harassing, bigoted, racist, hateful, libelous, abusive, tortious, defamatory, threatening, harmful, invasive of another’s privacy, vulgar, obscene or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; (d) transmit or post any material that may infringe the intellectual property rights or other rights of third parties, including trademark, trade secret, copyright or right of publicity; (e) transmit or post any material that contains software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs and cancelbots; (f) interfere with or disrupt servers or networks connected to the Site or violate the regulations, policies or procedures of such networks; (g) attempt to gain unauthorized access to the Site or computer systems or networks connected to the Site through password mining or any other means; (h) harass or interfere with another user’s use and enjoyment of the Site; or (i) transmit or post, or promote the transmission or posting of, an illegal or unauthorized copy of another person’s work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devises, or providing pirated content or links to pirated content files. In addition, you agree not to use any device, software, or routine, including but not limited to any viruses, worms, time bombs, to interfere or attempt to interfere with the proper working of the Site or any Service, or to intercept any system, data or personal information from the Site, nor will you take any action that imposes an unreasonable or disproportionately large load on the Site’s infrastructure.
16.1. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Our Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
16.2. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, disclose Confidential Information of the Disclosing Party only to those of its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement to any third party other than its, legal counsel and accountants without the other party’s prior written consent.
16.3. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law or by the order of a court or similar judicial or administrative body to do so.
You shall indemnify, defend and hold Tenacity Cloud, its licensors and information providers, and each such party’s parents, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents, harmless from and against any and all claims, actions, proceedings, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with your: (a) access to and/or use of the Site; (b) Services Data and other information provided to Tenacity Cloud; (c) breach of these TOU; and/or (d) violation of any applicable law or right of a third party.
18. DISCLAIMER OF WARRANTIES
18.1. YOU ACKNOWLEDGE THAT: THE SITE COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS; THE SITE MAY BECOME INOPERABLE OR OTHERWISE UNAVAILABLE FOR PERIODS OF TIME; MATERIALS AND/OR SERVICES AT THE SITE MAY BE OR BECOME OUT OF DATE AND TENACITY CLOUD MAKES NO COMMITMENT TO UPDATE SUCH MATERIALS OR SERVICES. TENACITY CLOUD ASSUMES NO RESPONSIBILITY FOR ERRORS OR OMISSIONS IN THE INFORMATION, DOCUMENTS, SOFTWARE, MATERIALS AND/OR SERVICES WHICH ARE REFERENCED BY OR LINKED TO THIS SITE. REFERENCES TO THIRD PARTIES, THEIR SERVICES AND PRODUCTS, ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED.
18.2. YOUR USE OF THE SITE IS AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM TENACITY CLOUD, OR THROUGH OR FROM THE SITE, SHALL CREATE ANY REPRESENTATION OR WARRANTY BY TENACITY CLOUD.
18.3. THE SITE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE. WITHOUT LIMITING THE FOREGOING, NEITHER TENACITY CLOUD, ITS LICENSORS NOR ANY CONTENT PROVIDERS MAKE ANY REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SITE, OR THAT THE USE OF THE SITE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA. THE PLATFORM OR PARTS OF THE PLATFORM MAY BE PROVIDED AND MARKED AS BETA AND UNDERGOING FINAL TESTING BEFORE ITS OFFICIAL RELEASE.
18.4. ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY TENACITY CLOUD, ITS LICENSORS AND CONTENT PROVIDERS. Some jurisdictions do not allow the exclusion of implied warranties such that the above exclusion may not apply to you. This warranty gives you specific legal rights, and you may also have other rights that vary from jurisdiction to jurisdiction.
19. LIMITATION OF LIABILITY AND ACTIONS
REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY, IN NO EVENT SHALL TENACITY CLOUD, ITS LICENSORS OR CONTENT PROVIDERS BE LIABLE OR RESPONSIBLE TO YOU IN CONNECTION WITH THE SITE, OR YOUR USE THEREOF, FOR ANY: (A) INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF THEY ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; (B) LOST PROFITS, LOST REVENUE, LOSS OF DATA, LOST EXPECTANCY, BUSINESS INTERRUPTIONS AND/OR BENEFIT OF THE BARGAIN DAMAGES; AND/OR (C) DIRECT DAMAGES IN AN AMOUNT IN EXCESS OF THE FEES PAID BY YOU TO TENACITY CLOUD UNDER THESE TOU THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO CLAIM. ANY CLAIM RELATED TO THE SITE MUST BE INITIATED WITHIN ONE (1) YEAR OF THE DATE YOU KNEW, OR REASONABLY SHOULD HAVE KNOWN, OF THE EXISTENCE OF SUCH CLAIM AGAINST TENACITY CLOUD.
20.1. Tenacity Cloud controls and operates the Site from its location(s) in the United States of America. Tenacity Cloud makes no representation that the Site is appropriate or available for use in other locations. Those who choose to access the Site do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. You are expressly prohibited from using or accessing the Site from any location in which the Site and/or any Platform, Materials and/or Services would violate any law within of that jurisdiction. Any diversion of the Platform, Materials and/or Services contrary to United States law is prohibited.
20.2. The Services and other technology Tenacity Cloud makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
21. TERM AND TERMINATION
21.1. These Terms, and your right to access and use the Site, are effective until terminated by either you or Tenacity Cloud. You may terminate these Terms at any time by discontinuing use of the Site. In addition, either party may terminate the Agreement for any or no reason after providing written notice of the termination of the Terms. Notwithstanding the foregoing, if you purchase a Service, Tenacity Cloud may terminate these Terms and your access to and use of the Site if you fail to timely pay Tenacity Cloud for the Service and/or you breach these Terms or the terms applicable to the Service.
21.2. These Terms, and your access to and/or use of the Site, may be terminated by Tenacity Cloud immediately without notice to you if in Tenacity Cloud’s sole discretion you fail to comply with any term or provision of these Terms. Upon termination, you must destroy all Materials obtained from or through the Site, and all related documentation and all copies and installations thereof, whether made under these Terms or otherwise.
21.3. After the effective date of termination or expiration of this Agreement, Tenacity Cloud will have no obligation to maintain or provide your Services Data, and may, in Tenacity Cloud’s sole discretion, delete or destroy all copies of your Services Data in Tenacity Cloud’s systems or otherwise in Tenacity Cloud’s possession or control, unless legally prohibited.
21.4. Subject to the terms of these Terms, all provisions of these Terms relating to ownership, limitations of liability, confidentiality, indemnification and other provisions which by their nature survive termination of these Terms shall survive termination of these Terms.
22. MICHIGAN LAW AND JURISDICTION
In order to ensure consistency in the interpretation and enforcement of these Terms and Tenacity Cloud’s rights in the Site, these Terms will be governed exclusively by Michigan law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. You expressly agree that any litigation arising between you and Tenacity Cloud related, in any way, to the Site and/or these Terms, and/or any and all disputes, actions, claims, or causes of action related thereto, shall be initiated and maintained only in the U.S. District Court for the Eastern District of Michigan, Southern Division, and/or the Circuit Court of the County of Washtenaw, Michigan. You expressly consent and irrevocably submit to the exclusive personal jurisdiction and venue of such courts.
Tenacity Cloud may give notice to you by means of a general notice by electronic mail to a user's e-mail address on Tenacity Cloud’s records, or by written communication sent by first-class mail to a user's address on Tenacity Cloud’s records. Notices are legally effective when actually received. In addition to delivery by hand or by overnight courier, a notice is deemed actually received three (3) days after sent certified mail return receipt requested, postage prepaid; and/or by e-mail with proof of transmission.
These Terms are the entire agreement between you and Tenacity Cloud regarding your use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No waiver of any provision of these Terms will be effective unless in writing and signed by the party against whom the waiver is to be asserted. No modification or amendment of any provision will be effective unless in writing and signed by the party against whom the waiver is to be asserted. You may not assign any rights or delegate duties under these Terms without the prior, express, written consent of Tenacity Cloud, which may be granted or withheld at Tenacity Cloud’s sole discretion. Any attempted assignment without such consent shall be void. These Terms constitute the entire understanding of the parties with respect to the Site. The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. No failure or delay by either party in exercising any right under these Terms will constitute a waiver of that right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of these Terms will remain in effect. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, an act of war or terrorism, riot, labor condition, governmental action, epidemic or pandemic, and Internet disturbance) that was beyond the party’s reasonable control. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THESE TOU OR THE SUBJECT MATTER HEREOF.