Treno Terms of Service

EFFECTIVE DATE: JANUARY 1, 2022

1.  TRENO PRODUCTS

1.1.  Provision of Products.  Treno will provide Licensee with the online software-as-a-service products and services set forth on an applicable Order Form (“Treno Products”).  Except as set forth in an Order Form, each Treno Product is provided on a subscription basis for a set term designated on the Order Form (each, as “Subscription Term”).

1.2.  Access to Products.  Licensee may access and use Treno Products solely for its own benefit for the purpose of utilizing the Treno Products for project management and collaboration purposes and only in accordance with the terms and conditions of this Agreement, any end user technical documentation provided with the Treno Products (“Documentation”) and any scope of use restrictions designated in the applicable Order Form.  For clarity, the Treno Products are provided on a remote, software-as-a-service basis and no software code will be provided to Licensee. Use of and access to Treno Products is authorized only by the number of employees of Licensee specified in the applicable Order Form (“Authorized Users”).  If Licensee is given passwords to access Treno Products on Treno’s systems, Licensee shall require that all Authorized Users keep user ID and password information strictly confidential and not share such information with any unauthorized person.  Licensee shall be responsible for any and all actions taken using Licensee’s accounts and passwords (except to the extent they were in Treno’s possession). Licensee acknowledges Treno uses a third-party hosting provider. 

1.3.  Contractors. Licensee may permit its independent contractors and consultants who are not competitors of Treno (“Contractors”) to serve as Authorized Users, provided Licensee remains responsible for compliance by each such Contractor with all of the terms and conditions of this Agreement and any such use of Treno Products by such Contractor is for the sole benefit of Licensee. Use of the Treno Products by Contractors and Licensee in the aggregate must be within the restrictions in the applicable Order Form.

1.4.  General Restrictions.  Licensee shall not (and shall not allow any third party to): (a) rent, lease, copy, provide access to or sublicense any Treno Product to a third party; (b) use any Treno Product to provide, or incorporate any Treno Product into, any product or service provided to a third party, (c) use any Treno Product to help develop and other product or services, (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to Treno Products (provided that, the foregoing restriction on reverse engineering will not apply to the extent prohibited by applicable law - and then only upon advance notice to Treno), (e) modify or create derivatives of any Treno Product or any Documentation, (f) remove or obscure any proprietary or other notices contained in any Treno Product (including any reports or data printed from Treno Products) or (g) publicly disseminate information regarding the performance of any Treno Products. 

 

2.  LICENSEE DATA

2.1.  Generally.  “Licensee Data” means all data inputted by Licensee into the Treno Products or integrated with Treno Product. Licensee shall ensure that Licensee’s use of Treno Products and all Licensee Data is at all times compliant with Licensee’s privacy policies and all applicable local, state, federal and international laws and regulations, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data.  Licensee is solely responsible for the accuracy, content and legality of all Licensee Data.  Licensee represents and warrants to Treno that Licensee has sufficient rights in the Licensee Data to grant the rights granted to Treno in Section 2.2 below and that the Licensee Data does not infringe or otherwise violate the rights of any third party.  Treno reserves the right to block or remove any Licensee Data or content as it, in its reasonable opinion, deems infringes or violates applicable laws or regulations upon reasonable prior written notice to Licensee.

2.2.  Rights in Licensee Data. As between the parties, Licensee shall retain all right, title and interest (including any and all intellectual property rights) in and to the Licensee Data as provided to Treno. Licensee hereby grants to Treno a non-exclusive, worldwide, royalty-free right and license to use, access, copy store, transmit, modify, create derivative works of and display the Licensee Data to the extent reasonably necessary to provide Treno Products to Licensee.

2.3.  Integration/Data Connection of Licensee Data. Licensee shall be responsible for the integration/data connection of any and all Licensee Data  into the  Treno Products. Integration shall only be made using the tools provided in the Treno Products or via the authorized API for Treno Products. Errors in loading Licensee Data onto Treno systems due to use of unauthorized tools or APIs, erroneous data or failure to meet Technical Requirements may be rejected by the Treno Products or may be referred back to Licensee for resolution and Treno shall have no responsibility for any related impact on the applicable service.

2.4.  Indemnification by Licensee.  Licensee shall indemnify, defend and hold harmless Treno from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any Licensee Data, or (b) any unauthorized or illegal use by Licensee of a Treno Product.  This indemnification obligation is subject to Licensee receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Licensee to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of Treno at Licensee’s expense.

 

3.  OWNERSHIP.  Licensee acknowledges that no intellectual property rights are assigned or transferred to Licensee hereunder. Licensee is obtaining only a limited right to the Treno Products. Licensee agrees that Treno and/or its suppliers retain all right, title and interest (including, without limitation, all intellectual property rights) in and to the Treno Products and Documentation.

 

4.  SUBSCRIPTION TERM, FEES & PAYMENT      

4.1.  Subscription Term and Renewals.  Unless otherwise terminated as set forth below, each Order Form will have the initial subscription term set forth thereon. Thereafter, each Order Form will automatically renew for successive renewal terms of equal length to the initial subscription term, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current subscription term.

4.2.  Fees and Payment.  All fees are as set forth in the applicable Order Form and shall be paid by Licensee within thirty (30) days of the effective date of the applicable Order Form (or the anniversary thereof for each renewal term), unless otherwise specified in the applicable Order Form.  Treno may adjust the fees charged to Licensee hereunder on written notice delivered to Licensee at least thirty (30) days prior to the end of the then-current term, provided that, without notice, such fees will be increased by the greater of 3% and CPI each Subscription Term. All of the aforementioned fee increases will take effect beginning on the next Subscription Term. Except as expressly set forth in Section 6; with re, all fees are non-refundable.  Treno’s fees are exclusive of, and Licensee is required to pay, any sales, use GST, value-added withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Treno.  Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less (plus the reasonable costs of collection). 

4.3.  Bank Fees. In the event that Licensee makes any payment via wire transfer, all associated outgoing and incoming bank fees (including, without limitation, Licensee’s bank fees and Treno’s bank fees) (collectively, the “Bank Fees”) shall be Licensee’s responsibility and shall be recoverable by Treno from Licensee. Licensee may include such Bank Fees at the time of the payment to Treno. However, if such Bank Fees are not included then Treno shall be entitled to full reimbursement of such Bank Fees from Licensee within sixty (60) days of any applicable wire transfer initiated by Licensee.

4.4.  Travel Costs. Licensee-preapproved additional costs for travel expenses related to any professional services or onboarding services that in accordance with Treno’s travel and expense policy, if any, shall be reimbursed within thirty (30) days from Treno’s invoice (e-mail approval is sufficient).

4.5.  Additional Users. Additional fees for Authorized User or capacity increases shall apply on a pro-rata basis if ordered by Licensee during the Subscription Term.

4.6.  Suspension of Service.  If Licensee's account is ten (10) days or more overdue, in addition to any of its other rights or remedies, Treno reserves the right to suspend Licensee’s access to the applicable Treno Products (and any related services) without liability to Licensee until such amounts are paid in full. 

 

5.  TERM AND TERMINATION

5.1.  Term.  This Agreement is effective as of the Effective Date and will terminate as set forth below. 

5.2.  Termination. 

      Either party may terminate this Agreement on written notice if there are no Order Forms in effect. In addition, either party may terminate this Agreement if the other party (a) fails to cure any  material breach of this Agreement within thirty (30) days after written notice (ten (10) days in the case of non-payment); (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).

      In addition, Licensee may terminate this Agreement at any time on thirty (30) days prior written notice. In such event, all amounts paid in advance are non-refundable – and all amounts that, but for termination, would otherwise have becomes due, will accelerate and become payable.

      For clarity, termination of this Agreement will automatically terminate all Order Forms.

5.3.  Effect of Termination.  Upon any expiration or termination of this Agreement, (i) Licensee shall immediately cease any and all use of and access to Treno Products and (ii) each party will return to the other party (or destroy) such other party’s Confidential Information (subject to Section 10 below). Termination of this Agreement is not an exclusive remedy and the exercise of either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. 

5.4.  Licensee Data. During the thirty (30) days period immediately following expiration or termination of this Agreement, Treno will provide Licensee with access to the Licensee Data for download.

5.5.  Survival.  The following Sections shall survive any expiration or termination of this Agreement: 1.4, 2.4, 3, 4.2, 5, 6.3, 8, 9, 10, and 12. 

 

6.  LIMITED WARRANTY

6.1.  General Warranties. Each party represents and warrants that: (i) it has all right, power and authority to execute this Agreement and perform its obligations hereunder, (ii) its performance will not conflict with any obligations it has to any third party and (iii) its performance will comply with all privacy laws and regulations (including, without limitation, the U.S.-EU Privacy Shield, U.S.–Swiss Privacy Shield Principles, the General Data Protection Regulation in the European Union).

6.2.  Limited Warranty.  Treno warrants, for Licensee’s benefit only, that Treno Products will operate in substantial conformity with the applicable Documentation.  Treno’s sole liability (and Licensee’s sole and exclusive remedy) for any breach of this warranty shall be for Treno to, at no charge to Licensee, use commercially reasonable efforts to provide Licensee with an error correction or work-around that corrects the reported non-conformity, or if Treno determines such remedies to be impracticable, to allow Licensee to terminate the Subscription Term and receive as its sole remedy a refund of any fees Licensee has pre-paid for use of Treno Products for the then-unexpired portion of the Subscription Term.  The limited warranty set forth in this Section 2 shall not apply: (i) unless Licensee makes a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared or (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services. 

6.3.  Warranty Disclaimer.  EXCEPT FOR THE WARRANTIES IN SECTION 6.2, ALL TRENO PRODUCTS AND ALL SERVICES ARE PROVIDED “AS IS” AND NEITHER TRENO NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. TRENO MAKES NO WARRANTIES WITH RESPECT TO ITS HOSTING PROVIDER OR AN OF THEIR PRODUCTS, SERVICES, ACT OR OMISSIONS.

 

7.  PROFESSIONAL SERVICES.  To the extent Treno provides any implementation or other ancillary professional services, they will be provided in a professional manner.

 

8.  LIMITATION ON LIABILITY

8.1.  NEITHER PARTY SHALL BE LIABLE, UNDER ANY LEGAL OR EQUITABLE THEORY OF LAW, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, (II) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY LICENSEE TO TRENO DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD , OR (III) IN THE CASE OF TRENO’S LIABILITY, THE COST OR PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR SERVICES. TRENO SHALL HAVE NO LIABILITY WITH RESPECT TO ITS HOSTING PROVIDER OR ANY OF THEIR PRODUCTS, SERVICES, ACT OR OMISSIONS.

8.2.  The parties agree that the limitations specified in this Section 8 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

 

9.  INDEMNIFICATION BY TRENO.  Treno shall indemnify and hold harmless Licensee from and against any claim of infringement of a U.S. patent, copyright, or trademark asserted against Licensee by a third party (and all resulting, to the extent payable out-of-pocket to unaffiliated third parties, losses, damages, judgements, costs and expenses, including reasonable attorneys’ fees) based on the Treno Products, provided that Treno shall have received from Licensee: (i) prompt written notice of such claim (but in any event notice in sufficient time for Treno to respond without prejudice); (ii) the exclusive right to control all defense and settlement activities; and (iii) all reasonably requested assistance.  If Licensee’s use of any Treno Product is, or in Treno’s opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Treno may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Licensee the right to continue using Treno Products; or if (a) and (b) are commercially impracticable, (c) terminate the Agreement and refund to Licensee the fees paid by Licensee for the portion of the Subscription Term which was paid by Licensee but not rendered by Treno. The foregoing indemnification obligation of Treno shall not apply: (1) if a Treno Product is modified by any party other than Treno; (2) a Treno Product is combined with other non-Treno products or services or processes not authorized by Treno; (3) if Treno Products are being mis-used; or (4) any action arising as a result of Licensee Data.  THIS SECTION 9 SETS FORTH TRENO’S SOLE LIABILITY AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

 

10.   CONFIDENTIAL INFORMATION. Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure.  All performance information relating to the Treno Products, and all pricing related information, shall be deemed Confidential Information. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information.  The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).  The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. 

 

11.   PUBLICITY. Licensee agrees that Treno may use Licensee’s name and logo on Treno’s web site and in Treno promotional materials (e.g., presentations, ads, data sheets, and press releases), including as part of a general list of Licensees. Treno will comply with Licensee’s generally applicable trademark usage guidelines provided to Treno in writing reasonably in advance.

 

12.   GENERAL TERMS

12.1. Assignment. This Agreement will bind and inure to the benefit of each party’s Authorized successors and assigns.  Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities.  Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 12.1 will be null and void.

12.2. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. 

12.3. Governing Law; Arbitration; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of New York and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods.  All disputes shall be subject to final and binding arbitration before one arbitrator. The arbitration shall be administered by, and conducted in accordance with the rules and procedures of, the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) (pursuant to the JAMS’ Streamlined Arbitration Rules and Procedures if available). Notwithstanding the foregoing, claims for injunctive or other equitable or other equitable relief may be brought immediately, at any time, before any court of competent jurisdiction. Subject to the foregoing arbitration provision, the jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in New York, New York and both parties hereby submit to the personal jurisdiction of such courts.

12.4. Notice. Any notice or communication required or Authorized under this Agreement shall be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.  Notwithstanding the foregoing, noticies of breach from Treno may be by email and are deemed received twenty-four hours from sending.

12.5. Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement.  No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.  No provision of any purchase order or other business form employed by Licensee will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect. 

12.6. Entire Agreement.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.

12.7. Force Majeure.  Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

12.8. Subcontractors. Treno may use the services of subcontractors for performance of services under this Agreement, provided that Treno remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of Treno Products as required under this Agreement. 

12.9.     Independent Contractors.  The parties to this Agreement are independent contractors.  There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties.  Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent

13. QUESTIONS.  If you have any questions about these Terms, please contact us at terms@treno.io.