Terms of Service

THE FINE PRINT

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LAST MODIFIED: July 17, 2024

These Terms of Service (this “Agreement”) constitute a legal agreement between you and the entity on whose behalf you are accessing the Services, if any (“Customer”) and Tangible Digital Intelligence, Inc. (“TDI”) relating to TDI’s website with a homepage found at www.tangibleintelligence.ai (“Site”), TDI’s proprietary hosted technology solutions, and all related APIs, features and applications, as the same may be upgraded or modified from time to time (collectively with the Site, the “Services”). Customer’s use of the Services is subject to the Agreement set forth below, so Customer should take the time to fully understand how this Agreement governs Customer’s relationship with TDI and Customer’s use of the Services. Notwithstanding the foregoing, where Customer and TDI or its affiliate have entered into a separate written agreement governing provision and use of Services (an “Enterprise Agreement”), such Enterprise Agreement will exclusively govern the Services and transactions contemplated by such Enterprise Agreement.

CUSTOMER’S RIGHT TO USE THE SERVICES IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THIS AGREEMENT. BY CLICKING A BOX INDICATING ACCEPTANCE OR USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THE AGREEMENT ON BEHALF OF CUSTOMER. IF YOU ARE ACCESSING THE SERVICES ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO AGREE TO THIS AGREEMENT ON ITS BEHALF. IF CUSTOMER DOES NOT AGREE WITH ANY PROVISION OF THE AGREEMENT, OR YOU DO NOT HAVE AUTHORITY TO BIND CUSTOMER, YOU SHOULD NOT AGREE TO THIS AGREEMENT AND MAY NOT ACCESS OR USE THE SERVICES IN ANY MANNER FOR ANY PURPOSE.

Acceptance of Agreement

By either clicking a box on the Site indicating acceptance or using the Services, Customer agrees to this Agreement and all other operating rules, policies and procedures that may be published from time to time on or through the Services by TDI, each of which is incorporated by reference and each of which may be updated from time to time without notice to Customer.
Certain of the Services may be subject to additional terms and conditions specified by TDI from time to time; Customer’s use of such Services is subject to those additional terms and conditions, which are incorporated into this Agreement by this reference.

No Legal Advice

The Services provided pursuant to this Agreement are not intended to constitute legal advice or a legal opinion or in any way to substitute for specific advice from legal counsel. Customer should not act or refrain from acting based on any such content without first consulting a qualified professional in the applicable law or subject matter. Customer’s access and use of the Services, including the submission of information to TDI through the Services, does not create an attorney-client relationship between you and TDI or its affiliates.

Data Protection

We will maintain reasonable administrative, physical, and technical safeguards for protection of the security and integrity of Customer Data (defined below). Customer acknowledges and agrees that any personal information submitted by Customer or collected by TDI in connection with Customer’s access or use of the Services will be subject to TDI’s Privacy Policy, and Customer hereby consents to the collection, use, and disclosure practices described therein.

Application Services

Subject to this Agreement, TDI will provide Customer with a non-exclusive, nontransferable right and license (without right to sublicense) to access and use (i) the Services that Customer has subscribed for and agreed to pay fees (“Subscription Services”), if any, and (ii) such other Services that TDI makes available to Customer at no charge (“Free Services”), in each case solely in connection with Customer’s internal business purposes and only by Customer’s end users (“End Users”). Customer shall have the responsibility to meet and maintain any computer, software, mobile device, internet connection or other technical specifications required to access and use the Services. TDI is not obligated to provide any support, configuration or implementation or other services, except as specified in this Agreement.
Free Services are made available on a trial basis until the end of the applicable free trial period specified by TDI (if any). Subscription Services are made available during the applicable subscription term to End Users for whom Subscription Services have been purchased. Any data Customer enters into the Free Services, or that Customer receives in connection with the Free Services, and any customizations/configurations made to the Free Services by or for Customer, will be permanently lost unless Customer exports such data before the end of the trial period. Certain Free Services may be available to Customers without a user account, in which case Customer will not be able to store any data provided by or for Customer in connection with use of such Free Services.
The Services are made available to Customer solely as hosted by or on behalf of TDI, and nothing in this Agreement shall be construed to grant Customer any right to receive any copy of any software or systems used to provide the Services. Services may be accessed by no more than the specified number of End Users. Services are for designated End Users only and cannot be shared or used by anyone other than the designed End User, but, with TDI’s written consent, may be assigned to a new End User replacing the former End User who no longer has access to ongoing use of Services.
TDI is constantly updating and improving the Services, and therefore, as part of this continuing innovation, Customer acknowledges that the features, functionalities, and/or appearance of Services may change from time to time with or without notice.

Proprietary Rights

Except for the limited rights and licenses expressly granted under this Agreement, no other license is granted, no other use is permitted, and TDI (and its licensors) shall retain all right, title and interest (including intellectual property and proprietary rights embodied therein) in and to the Services and Documentation (as defined below). Customer’s access and use of the Services shall comply with all other conditions set out in all documentation, such as this Agreement, all customer guides, help information, FAQs and other documents regarding the Services, in each case that is provided or made available by TDI to Customer in electronic or other form (“Documentation”). For avoidance of confusion, this includes, for example, any requirements regarding data formats, or prohibited uses. TDI may update or modify or discontinue some or all of the Services at any time, with or without notice to Customer.

Registration

Following acceptance of this Agreement, Customer shall set up an account or accounts for the Services, including setting up applicable user accounts for End Users. Customer shall ensure its End Users comply with this Agreement and shall be responsible for the acts or omissions of all of its End Users and any person who accesses the Services using passwords or access procedures provided to or created by Customer. TDI reserves the right to refuse registration of, or to cancel, login IDs that violate this Agreement.

Derivatives

All enhancements, modifications, and derivative works made to the Services (collectively, the “Derivatives”), and all intellectual property rights therein, shall be owned by TDI, whether or not such Derivatives are made at Customer’s request or instruction. Customer hereby irrevocably assigns to TDI all right, title and interest in and to the Derivatives, including all intellectual property rights therein that may inure to Customer or that Customer is deemed to obtain pursuant to this Agreement.

Feedback

Customer may, from time to time and in its sole discretion, make suggestions for changes, modifications or improvements to the Services (“Feedback”). All Feedback shall be solely owned by TDI (including all intellectual property rights therein and thereto) and shall also be TDI’s confidential information. Customer shall and hereby does make all assignments necessary to achieve such ownership.

Usage Data

All right, title, and interest in and to (i) any information related to Customer’s or its End User’s use of the Services (“Usage Data”), (ii) any other information regarding the operation of the Services, (iii) all works derived therefrom, and (iv) all intellectual property rights in the foregoing, shall be the exclusive property of TDI. Customer shall and hereby does make all assignments necessary to achieve such ownership.

Customer Data

Solely as may be necessary or useful to TDI, its affiliates, and the persons and entities TDI and/or its affiliates’ work with to (i) enforce the Agreement, (ii) exercise their rights under the Agreement, (iii) perform their obligations under the Agreement, and (iv) otherwise provide, operate, and improve the Services (and develop new products and services), Customer hereby grants to TDI a nonexclusive and royalty-free right and license to access, host, store, copy, modify, create derivative works, display, distribute, process and otherwise use all information, data and other content provided by or for Customer in connection with its use of the Services, including, without limitation, all data provided by End Users that is used or processed by the Services (collectively, “Customer Data”). As between Customer and TDI, any information or content that is derived by Customer from its processing of Customer Data through the Services shall also be deemed to be Customer Data. Notwithstanding the previous sentence, “Customer Data” does not include any third-party data made available on Service (or works derived therefrom), Feedback, Usage Data, or any other information reflecting the access or use of the Services by or on behalf of Customer or End Users. Customer must obtain at its sole expense all necessary consents, rights, permissions and clearances required for TDI and its affiliates and their service providers to use Customer Data for the purposes set forth herein, and provide TDI with reasonable proof thereof upon request. Customer agrees that (a) the Services depend on the availability of the Customer Data and (b) TDI will not assume any responsibility for, or undertake to verify, the accuracy or completeness of the Customer Data. Customer acknowledges and agrees that TDI has no control over Customer Data that is input into the Services. Customer also acknowledges that TDI may provide e-mail or other notifications and communications to End Users. Customer represents and warrants that such End Users have not “opted-out” of receiving e-mail communication from Customer and that Customer has a relationship with End Users. Except as otherwise expressed in this Agreement, TDI’s Privacy Policy or as expressly agreed in a writing that is signed by an authorized representative of TDI, TDI shall have no obligation to store any Customer Data. Customer agrees that the Services are not a formal system of record for any Customer Data. Customer shall be responsible for ensuring that the provision of Customer Data conforms to Customer’s privacy policies and all applicable laws, rules and regulations. The Services may include functionality that allows Customer to share Customer Data or other information with third parties. In such case, Customer acknowledges that TDI has no control over such third party, and will have no liability for damages arising from such third party’s use of such information.

Restrictions

Customer agrees that Customer (including its End Users) will not and is prohibited from: (a) copying, modifying, reproducing, duplicating, publishing, licensing or creating derivative works or improvements of the Services; (b) renting, leasing, lending, selling, sublicensing, assigning, distributing, publishing, transferring, or otherwise making available the Services, to any third-party; (c) reverse engineering, disassembling, decompiling, decoding, adapting, or otherwise attempting to derive or gain access to any portion of the Services, in whole or in part, in a manner that TDI did not authorize; (d) bypassing or breaching any security device or protection used by the Services or accessing or using the Services other than by an authorized End User through the use of valid access credentials; (e) inputting, uploading, transmitting, or otherwise providing to or through the Services, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code; (f) damaging, destroying, disrupting, disabling, impairing, interfering with, or otherwise impeding or harming, in any manner, the Services or the provision of the Services, in whole or in part; (g) removing, deleting, altering, or obscuring from the Services any trademarks; (h) accessing or using the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right, data privacy right, or other right of any third party, or that violates any applicable law; (i) accessing or using the Services for purposes of developing a competitive offering; (j) using the Services in any manner that is or could be construed as obscene, threatening, abusive, defamatory, libelous, or which encourages criminal conduct; and (k) using the Services for any illegal activity or otherwise in violation of applicable law. Customer agrees that any of use of Services is also subject to any reasonable limitations established by TDI, such as limits on storage space or on the number of calls permitted to be made against TDI’s API. TDI will endeavor to specify such limits in its user guides or Site or otherwise.

Confidentiality

As used herein, “Confidential Information” means all confidential 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. Customer’s Confidential Information shall include the Customer Data. TDI’s Confidential Information shall include information associated with or related to the Services, including the software, methods, and routines underlying or processes embodied within the Services, and the terms of all subscriptions. Confidential Information of each party shall include the business and marketing plans, technology and technical information, and product plans and designs disclosed by such party. However, Confidential Information shall 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, (iv) was independently developed by the Receiving Party, or (v) Usage Data. Customer acknowledges that any business process information of a general nature or industry information that it shares with TDI in connection with the Services is not Confidential Information, and that TDI and its affiliates and their successors may use and share such knowledge in perpetuity without restriction in connection with its business.
The Receiving Party shall use the same degree of care to protect the Disclosing Party’s Confidential Information that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). The Receiving Party shall (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, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing confidentiality protections no less stringent than those herein.
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

Pricing and Payments

Customer shall pay a fee for the right to use the Subscription Services (“Subscription Fee”) at its then-current subscription rates that Customer selected as part of the registration or purchase process for the Services. Customer shall pay the Subscription Fee in advance on a calendar monthly basis for the duration of the applicable subscription period. Customer will pay the Subscription Fee without the requirement of issuance of an invoice or purchase order. Payments shall be made in US dollars via TDI’s provider’s online payment system, in full without set-off, counterclaim or deduction. By choosing a recurring payment plan, Customer acknowledges that Subscription Services have a recurring payment feature and accepts responsibility for all recurring charges prior to cancellation. TDI MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM CUSTOMER, UNTIL CUSTOMER TERMINATES THE SERVICES IN ACCORDANCE WITH THE PROCEDURE SET FORTH ON THE SITE OR WISHES TO CHANGE ITS PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE TDI REASONABLY COULD ACT OR CHARGES ACCRUED PRIOR TO TERMINATION. TO TERMINATE THE SERVICE OR CHANGE PAYMENT METHODS, FOLLOW THE INSTRUCTIONS ON THE SITE. Past due amounts shall bear a late payment charge, until paid, at the rate of one and one half percent (1.5%) per month or the maximum amount permitted by law, whichever is less. Customer agrees to reimburse TDI for all costs (including legal fees) incurred by TDI in collecting late payments. Customer acknowledges that TDI reserves the right to suspend or terminate Customer’s account and delete any Customer Data associated with any accounts reflecting past due amounts for over thirty (30) days. Customer further acknowledges that if Customer wishes to reinstate the Services after the Services have terminated due to non-payment of Subscription Fees, it shall be subject to a three hundred dollar ($300) reinstatement fee per account, plus all amounts incurred by TDI for time and materials expended in order to reinstate the Services. All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to pay all such charges, excluding taxes based upon TDI’s net income. All amounts payable by Customer hereunder, including all Subscription Fees, shall be grossed-up for any withholding taxes imposed by any foreign government on Customer’s payment of such amounts to TDI. Unless otherwise agreed to in writing by TDI, all Subscription Fees are subject to change (“Fee Change”) at TDI’s sole discretion. In the event of a Fee Change, TDI will post notice of such Fee Change on the Site or through the Service and provide Customer with a reasonable opportunity (but not greater than sixty (60) days) to terminate its subscription if it does not agree to the Fee Change. If Customer does not terminate its account before the Fee Change takes effect, Customer will be deemed to have accepted the Fee Change.

Third Party Services and Applications

In providing the Services, TDI may engage, interact with or otherwise use the services or content or information of various third-parties (“Service Parties”). Customer acknowledges that, in conjunction with the Services, TDI may also provide certain Customer Data to Service Parties or applications operated by third parties, provided that TDI requires that all such Service Parties maintain reasonable standards of security and confidentiality concerning Customer Data. Customer acknowledges that third-party resources are not under TDI’s control and that TDI is not responsible or liable for the information, content, functions, accuracy, legality, appropriateness, availability, timeliness, reliability, security, or any other aspect of third-party software, hardware, equipment, materials, or information (“Service Party Materials”). Customer further acknowledges and agrees that TDI shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any Service Party or Service Party Materials.

Term and Termination

Term. This Agreement shall commence on the date Customer (or an authorized representative on its behalf) begins to use the Services and continues until terminated by either party.
Termination. TDI may terminate this Agreement, Customer’s account or access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with Customer’s account. If Customer wishes to terminate its account, Customer may do so by following the instructions on the Site or otherwise specified through the Services. Any Subscription Fees paid hereunder are non-refundable.
Effects of Termination. Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that (i) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and all remedies for breach of this Agreement shall survive, and (ii) the provisions titled Derivatives, Feedback, Usage Data, Confidentiality, Proprietary Rights, Warranties and Disclaimers, Indemnification, Limitation of Liability, Effects of Termination, Publicity and General Provisions shall survive. Unless otherwise agreed in writing and signed by an authorized representative of TDI, TDI has no obligation to retain any Customer Data after the term and may destroy all Customer Data in its possession after termination or expiration of this Agreement. Customer acknowledges that if, after termination or expiration of the Agreement, it creates a new TDI account it may not be able to register with the same e-mail address it submitted in conjunction with its previous account.

Warranties and Disclaimers

Customer Data. Customer represents and warrants that it owns all right, title and interest, or possesses sufficient license rights, in and to the Customer Data as may be necessary to permit the use contemplated under this Agreement. Customer bears all responsibility and liability for the accuracy and completeness of the Customer Data and TDI’s access, possession and use as permitted herein.
Disclaimers. THE SERVICES INCLUDING ALL ASSOCIATED DATA AND SERVICES OUTPUTS ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, TDI MAKES NO WARRANTY (I) THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE, BUG-FREE OR VIRUS-FREE, (II) REGARDING THE SECURITY, RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE SERVICES, OR (III) THAT ANY ERRORS IN THE SERVICES CAN OR WILL BE CORRECTED. TDI HEREBY DISCLAIMS (FOR ITSELF AND ITS SERVICE PARTIES AND ALL OF THEIR SUPPLIERS) ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

Indemnification

Customer agrees to indemnify and hold harmless TDI and its affiliates against any claims, losses, liabilities, costs and expenses incurred in connection with (a) any actual or alleged breach of Customer’s representations and warranties, (b) Customer’s unauthorized use of the Services, (c) Customer’s use of the Services, including (i) any modifications thereto, (ii) any combination of the Services with any other data or information, or (iii) any outputs of the Services (d) any actual or alleged violation by Customer of the rights of any third party, and (e) Customer Data or use thereof.

Limitation of Liability

IN NO EVENT SHALL TDI BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO IT HEREUNDER DURING THE PRECEDING SIX (6) MONTH PERIOD. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

Governing Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon, including its conflicts of law rules, and the United States of America. Customer agrees that any dispute arising from or relating to the subject matter of this Agreement shall be governed by the exclusive jurisdiction and venue of the state and Federal courts located in the State of Oregon.

Entire Agreement and Severability

This Agreement is the entire agreement between Customer and TDI with respect to the Services and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between TDI and Customer with respect to the Services. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.

Modification

No waiver, consent or modification of this Agreement shall bind TDI unless in writing and signed by the party against which enforcement is sought. TDI may modify this Agreement at any time (including posting a notice through the Services); provided, however, if Customer does not agree to the modified Agreement, Customer shall notify TDI in writing within thirty (30) days, in which case the previous Agreement will apply to use of the Services for any period for which Customer has previously paid the Subscription Fee, after which Customer’s right to use the Services shall immediately terminate and TDI shall have no further responsibility or liability to Customer. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights.

Miscellaneous

Force Majeure. TDI shall not be liable for any failure to perform obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by Customer without TDI’s prior written consent. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
Publicity. Customer gives TDI permission to reproduce, publish and use Customer’s name, trademarks, service marks, and logos, in connection with providing Services and TDI’s marketing and publicity efforts.
Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
Notices. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices to TDI shall be sent to Tangible Digital Intelligence, Inc., 1104 NW 15^th Avenue, Portland, Oregon, 97209. Notices to Customer shall be sent to the Customer electronically through the email address specified in connection with Customer’s account.
Headings. The section and paragraph headings in this Agreement are for convenience only and shall not affect their interpretation.