TruHu Terms of Service, 2/6/2023

Welcome to TruHu, the truly human company that is focused on improving Employee Communication and Engagement! 

These Terms of Service (the “Customer Terms”), together with the associated Order Form or Agreement, constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“you”, “Customer”, “Client”) and Truly Human, Inc. (“TruHu”, "Company", “we”, “us”, or “our”), concerning your access to, and use of, our cloud-based, software-as-a-service (the “Platform”) as well as any other media form, media channel, mobile website or mobile application related workplace productivity tools and platform as set forth in the Order Form. 

We are grateful you are here. 

1. Licensing & Fees

1.1. Licensing - Company grants Customer a personal, non-transferable, and non-exclusive license, without the right to sublicense, to use the Platform, including associated written and electronic documentation and data, solely in connection with the Services and in accordance with applicable documentation. The license granted to Customer is intended for use as described in the 'Services' section of the Order Form. Services furnished are subject to the Customer’s having the required service components and/or operating software and subject to operational and systems constraints. 

1.2. Compensation; Payment Terms - Customer agrees to pay the Company for the Services described in the Order Form, which do not include additional fees or taxes levied to accommodate any state or federal tax adjustments necessary for Company to remain in compliance with the law (collectively, “Taxes”) and any additional fees, taxes, and charges incurred during the Term of the Service are the responsibility of the Customer. Payment obligations are non-cancelable, and fees paid are non-refundable. In the event of cancellation, the Customer remains responsible for any unpaid fees under the term. Fees must be paid within (30) days of receipt of the invoice. In case of any government-imposed withholding tax on payment for the Services, the customer will reimburse Company for such withholding tax. Late fees of up to 10% of the unpaid invoice shall accrue if the invoice is not paid within 30 days of receipt of the invoice. 

1.3. Currency – All monetary amounts specified in the Agreement are in United States dollars (“USD”) unless otherwise expressly stated. 

2. Content & Permitted Use

The Customer agrees to comply with all relevant laws, regulations, and rules, including those related to the communication of information uploaded to the Platform (“User Content”). Customer is solely responsible for ensuring their compliance with such laws, including but not limited to the TCPA and CAN-SPAM Act. The platform is not intended for the distribution of text messages or emails to non-employees or for marketing purposes and should be used for internal communication only. The customer specifically agrees not to submit, collect, store, or communicate any protected health information (“PHI”) or individually identifiable health information (“IIHI”) in connection with the use of the platform or services, as defined at 45 C.F.R. 160.103 et.seq. The Company does not store, transmit, or process any PHI or IIHI. 

2.1. Customer Responsibility - The Customer represents and warrants that it holds the necessary rights and licenses to all materials posted and/or shared with the Company and will indemnify and hold the Company harmless from all claims or damages arising from or related to any breach of this warranty. 

2.2. Company Responsibility - The Company shall not be responsible for policing, monitoring, or editing content provided by the Customer. The Company shall have no responsibility or liability for the accuracy of data uploaded to the Services by the User, including without limitation, User Content and any other data uploaded by Users. The Company may, in its sole discretion, delete, edit, remove, or restrict User Content or User Access at any time and for any reason, including any breach hereunder. 

2.3. User Content and Licensing - The Services allow the User to create, post, store, & share User Content through the Services. By providing User Content, the Users affirm and guarantee that they or their licensors hold all necessary rights and that the User Content does not breach this or other Agreement(s) or any applicable laws. The Company considers User Content to be confidential and subject to the provisions outlined in the CONFIDENTIALITY section. The Company may utilize User Content for internal purposes and to fulfill its obligations under this Agreement. The Company shall not be held accountable for any unauthorized release of User Content within the confines of the Agreement. 

Customer shall not grant access to the Services or any part thereof, to any third party for the purpose of reverse engineering, copying, or any other means that may be used to steal trade secrets. Any unauthorized use of the Services or related information is strictly prohibited. 

Customer shall not resell, re-license, or provide access to the Services or any part thereof unless specifically outlined in the Order Form. Any unauthorized resale or re-licensing of the Services or related information is strictly prohibited. 

3. Term & Termination

3.1. Term - Unless otherwise stated on the Order Form, the Term is one year from Contract Effective Date based on the Term specified on the Order Form. 

3.2. Auto-Renewal - The Agreement shall automatically renew and shall continue to renew on the anniversary of the Contract Effective Date based on the Term specified on the Order Form. The Company shall have the right to notify the Customer of any increases in fees or subscriptions for the subsequent Term at least (90) days prior to the end of the current Term. Either party may provide written notice of termination at least (60) days prior to the end of the current Term to cancel the auto-renewal. However, any termination given within (60) days of the end of the current Term shall not apply to the renewed Term and shall terminate the agreement after the renewed Term. The Agreement shall remain in full effect and shall continue to be binding on both parties until the end of the current Term, regardless of a notice of intent not to renew.  

3.3. Notice - All notices pursuant to this Agreement shall be sent, in writing, to the parties at their address as set forth in the Order Form, or their email address as subsequently modified by written notice given in accordance with the Order Form. Notices to Company shall be sent to 

3.4. Termination for Cause - Either party may terminate the Agreement with written notice to the other party if the other party materially breaches the Agreement and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. Customer is responsible for its Users, including any breaches of this Agreement caused by its Users. We may terminate the Agreement immediately on written notice to Customer if we reasonably believe that the Services are being used by Customer or its Users in violation of applicable law or terms of this Agreement. 

3.5. Termination Without Cause - Company may terminate Free subscriptions immediately without cause. 

3.6. Effect of Termination - Upon any termination for cause by Customer, we will refund Customer any prepaid fees covering the remainder of the Term of all subscriptions after the effective date of termination. Upon any termination for cause by us, Customer will pay any unpaid fees covering the remainder of the Term of those subscriptions after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination. 

4. Confidentiality

All confidential and proprietary information shared between the Customer, its clients, Company, and the terms and pricing of this Agreement and TruHu Licensed Materials (collectively referred to as "Confidential Information" or "CI") shall be treated as confidential by both parties. Neither party may use or disclose the other party's CI, except in furtherance of this Agreement or as required by law, where notice will be given if permitted. 

4.1. Company's Confidentiality Obligations - The Company shall limit its use of the Customer's Confidential Information to the performance of this Agreement, and access to the Customer's Confidential Information shall only be granted to employees, contractors, or agents who are bound by confidentiality obligations that are no less restrictive than those outlined in this section. The Company shall not transfer or disclose the Customer's Confidential Information to any third party except as expressly permitted under this agreement or with the Customer's prior written consent. Company shall maintain appropriate administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of Customer Data. 

4.2. Confidentiality of Data - The Company shall protect the Customer's Confidential data 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. In the event of any misuse or misappropriation of Confidential data that comes to the Company's attention, the Company shall promptly notify the Customer. 

4.3. Customer's Confidentiality Obligations - The Customer shall limit its use of and access to Confidential Information to the Customer and its employees, contractors, or agents whose use of or access to Confidential Information is permitted under the Order Form or this Agreement and who are bound by confidentiality obligations no less restrictive than those outlined in this section. The Customer shall not disclose Confidential Information to any third party or allow the unauthorized disclosure, publication, display, or use of Confidential Information without the Company's prior written consent. The 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. In the event of any misuse or misappropriation of Confidential Information that comes to the Customer's attention, the Customer shall promptly notify the Company. 

4.4. Exceptions to Confidentiality Obligations - The parties acknowledge that certain information, including that which is obtained through marketing materials or process, or other publicly obtained research, will not be considered CI under this Agreement. This includes, but is not limited to, the use of marks on any digital or print collateral or data obtained through reasonable efforts for purposes outside the scope of this Agreement. Additionally, a party may disclose CI of the other party as required by applicable law or by a proper legal or governmental authority, provided that such party gives prompt notice to the other party of any such legal or governmental demand and reasonably cooperates with the other party in any effort to seek a protective order or otherwise to contest such required disclosure at the other party's expense. However, under the Defend Trade Secrets Act of 2016, an individual shall not be held criminally or civilly liable for the disclosure of a trade secret made in confidence to a government official, attorney, or in a lawsuit filed under seal. The individual who files the lawsuit must file any documents containing the trade secret under seal and may not disclose the trade secret except under a court order. 

5. Warranties and Disclaimers

DISCLAIMER OF WARRANTIES.  TruHu does not make, and hereby expressly disclaims, any other warranties, express, implied or statutory, with respect to TruHu Pulse including, without limitation, the implied warranties of merchantability and fitness for a particular purpose. 

5.1. LIMITATIONS ON LIABILITY. Excluding gross negligence, willful misconduct, or breach of data privacy and security laws, the maximum liability of each party and its representatives to the other party for damages for any and all causes whatsoever, and each party’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the total dollar amount of Customer’s fees during the most recent 12 months. Excluding each party’s gross negligence, willful misconduct, or breach of data privacy and security laws, in no event shall either party be liable to the other party for any lost, delayed, or diminished profits, revenues, or opportunities; or any other incidental, special, indirect, or consequential damages of any kind or nature whatsoever.

For purposes of all remedies and limitations of liability set forth in this Agreement or any Attachment, (i) “TruHu” shall mean Truly Human, Corp, its Affiliates, and its and their employees, directors, officers, agents, representatives, subcontractors, and suppliers and (ii) “Customer” shall mean Customer, its Affiliates, and their employees, directors, officers, agents, and representatives.

6. Indemnification

6.1. Customer agrees to indemnify, defend and hold Company and its respective officers, directors, owners, agents, information providers, and licensors harmless from and against any and all demands, claims, liability, losses, costs, and expenses (including attorneys’ fees) incurred by Company in connection with any use or alleged use of the Website and any activity, actions, or omissions on the Website conducted under your password by any person, whether or not authorized by you, including the posting of User Content to the Platform or Company’s website. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Company’s defense of such claim. 

6.2. Company shall indemnify, defend, and hold harmless Customer and its Affiliates, directors, officers, employees, agents, successors and assigns from all claims of patent infringement arising solely from the use of the Services. Whenever Company is responsible under the preceding sentence, Company may at its option either procure the right for Customer to continue using or may replace or modify the alleged infringing Service so that the Service becomes non-infringing. If those alternatives are not reasonably achievable, Company may terminate the affected Attachment without termination liability to either party. 


6.3.The indemnified party under this Section: (i) must notify the other party in writing promptly upon learning of any claim or suit for which indemnification may be sought, provided that failure to do so shall have no effect except to the extent the other party is prejudiced thereby; (ii) shall have the right to participate in such defense or settlement with its own counsel and at its sole expense, but the other party shall have control of the defense or settlement; and (iii) shall reasonably cooperate with the defense. 

7. Breach Terms & Disputes

7.1. Non-Payment - If Customer fails to make any payment due under this Agreement, we reserve the right to immediately terminate the Agreement and pursue any other legal remedies that may be available to us. In addition, you will be liable for any costs incurred by us in collecting the unpaid amounts, including, without limitation, our reasonable attorneys' fees, and costs of court. 

7.2. Disputes - If the parties are not able to resolve any dispute between them related to this Agreement, then such dispute may be resolved only by binding arbitration, conducted by a single arbitrator, and administered by the American Arbitration Association (“AAA”) at its San Francisco, California office. No depositions shall be permitted in the proceeding. Arbitration shall be by document submission and telephonic or video testimony only. The arbitrator’s award shall be final. Judgment may be entered upon it in any court having jurisdiction. If any legal or equitable action, proceeding or arbitration arises out of or concerns this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorney’s fees. 

8. Miscellaneous

8.1. Force Majeure - Neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, pandemics, and governmental action. 

8.2. Assignment & Acquisition Obligations - If the Customer acquires another Customer or location, Customer is still required to pay the entire Agreement amount. A new Agreement must be signed before access, or use can be granted for locations that report through a licensed Customer on the Order Form. In the event of a merger or acquisition by the Customer, the Customer must provide Company with thirty (30) days' written notice. This Agreement may not be assigned without the express written consent of the Company except in the case of merger or acquisition. Either party hereto may assign this Agreement to a successor-in-interest through an acquisition or merger. If the Company is acquired by another entity, Company is not obligated to provide prior notice. 

8.3. Governing Law - This Agreement shall be governed by and construed in accordance with Delaware law, without reference to the choice of law principles thereof. Each party irrevocably consents to non-exclusive jurisdiction in the applicable state or federal court in Delaware, subject to the binding arbitration provisions contained in this Agreement. If any provision of this Agreement or portion thereof is held invalid or unenforceable, all other provisions of this Agreement shall nevertheless remain in effect.