Customer Agreement
Customer Agreement
Last updated: November 05, 2024
This customer agreement (“Customer Agreement”) is between Zethos, Inc. dba Truework (“Truework”) and the legal entity signing an order form referencing this Customer Agreement (“Customer”). Truework and Customer will be referred to individually, as a “Party,” or collectively, as the “Parties.” The Parties hereby agree as follows:
1. Truework Services.
a. Provision of Truework Services. Subject to the terms of the Agreement, Truework will use commercially reasonable efforts to provide Customer the Truework Services as described in an order form (“Order Form”). Truework grants to Customer during the Term the worldwide, non-exclusive, limited, non-transferable, royalty-free right for its Users to access the Truework Services only as expressly allowed in the Agreement and to access and use the Truework Services to request Verifications up to the quantitative limits and other requirements as described in the applicable Order Form.
b. General Use. Customer’s use of the Truework Services is subject to the terms of use found at: www.truework.com/terms/termsofuse (“Terms of Use”), including, for the avoidance doubt, compliance with the federal Fair Credit Reporting Act, 15 U.S.C. §1681, et seq (the “FCRA”) and the FCRA Notice to Users found at: www.truework.com/notices/fcranoticetousers.
c. Requirements and Permitted Use. Customer represents, covenants, and warrants that: (i) Customer will use, and will require its Users to use, the Truework Services only in compliance with the Agreement and all Applicable Laws and Regulations, including the FCRA, and any third-party restrictions to the extent Customer accesses third-party services with the Truework Services; (ii) Customer will only use the Truework Services for the Verifier Type indicated in the applicable Order Form, and (iii) the information Customer provides in connection with use of the Truework Services, to the best of Customer’s knowledge, is true and accurate.
2. Truework API Access.
a. API License. If purchased as part of Truework Services specified in an Order Form, Truework will provide Customer with key based access to the Truework Services API (“Truework API”) and may limit Customer access in Truework’s sole and ultimate discretion, including if Customer is in breach of the Agreement until such breach is cured. Truework grants Customer a non-exclusive, worldwide, non-transferable license, during the term of the Agreement, to use the Truework APIs solely for Customer’s internal operational use for accessing the Truework Services. Customer agrees not to distribute, disclose or make available the Truework API or the related key to any third-party.
b. API Deprecation. Following written notice to Customer, (which may include email to the email contacts provided in the Agreement), Truework may deprecate API releases, Customer will have six (6) months to migrate to the new release (“Grace Period”). Truework may terminate access to the deprecated version of the Truework API immediately following the Grace Period.
c. Users. As part of the registration process, Customer will identify an administrative username and related password for Customer’s Truework account. Customer will maintain the confidentiality of Customer’s access information, including usernames and passwords. Customer is responsible for the acts and omissions of all Users in connection with the access of use of the Truework Services, as well as any and all access to and use by any other person logging in under a username registered under Customer’s account. Customer will: (i) notify Truework promptly of any unauthorized use of any Truework Services access credentials or any other known or suspected breach of security of the Truework Services; (ii) not impersonate another User or provide false identity information to gain access to or use the Truework Services. Truework reserves the right to cancel passwords it deems inappropriate.
3. Third-Party Services.
a. Preferred Access Provider. If Customer has indicated in an Order Form or has otherwise notified Truework in writing that it will access Truework through a Customer Preferred Access Provider (the “Access Provider”), Customer authorizes Truework to provide the Truework Services to Customer and to share any data necessary to provide the Truework Services through such Access Provider. Customer agrees that Truework will not be liable for any Security Breaches, delays in service obligations or claims arising from Truework’s use of the Access Provider. Nothing in the Agreement requires Truework to enter into any agreements or to use an Access Provider for provision of the Truework Services, and, if Truework terminates its agreement with an Access Provider or determines that it is not commercially reasonable to use such Access Provider, Truework may notify Customer in writing and Customer will access the Truework Services directly through Truework.
b. Third-Party Service Fees. Customer represents and warrants that to the extent it accesses third-party services through the Truework Services or any Access Provider, it will be solely responsible for any access or use charges or any other fees, costs or expenses incurred in connection with such third-party services. Customer agrees that it will pay any such charges directly to the applicable third party.
4. Payment & Fees.
a. Fees. Customer will pay Truework the then applicable fees described in the Order Form in accordance with the terms therein (the “Fees”). For any third-party services access enabled by the Truework Services, Customer will maintain a direct billing relationship with such service provider and pay Truework the fees described in the Order Form for such access. Except as described in Section 5(b) (Termination), Truework will not issue a refund to Customer for any unused usage-based prepaid fees. If Customer believes that Truework has billed Customer incorrectly, Customer must contact Truework no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Truework’s customer support department at support@truework.com. Customer acknowledges that if Customer orders products or services from Truework that are not included in an Order Form, Customer will pay the Truework standard pricing for such product or service.
b. Taxes & Unpaid Amounts. Customer will be responsible for all taxes associated with its purchase and use of the Truework Services other than U.S. taxes based on Truework’s net income. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate suspension or termination of Truework Services.
5. Term & Termination.
a. Term. The term of the Agreement commences on and continues from the Agreement Effective Date until all Order Forms have expired or otherwise been terminated, unless extended pursuant to written agreement of the parties (“Term”). If not terminated, the Term and any Order Term, is and will be automatically renewed for additional periods of 12 months or the same duration of the then-current Order Term, whichever is greater, unless either Party requests termination at least thirty (30) days prior to the end of the then-current Order Term (each a “Renewal Term”).
b. Termination. In addition to any other remedies it may have, either Party may also terminate the Agreement upon thirty (30) days’ written notice if the other Party materially breaches any of the terms or conditions of the Agreement; provided that, Truework may terminate immediately upon notice to Customer in the event of any of the following: (i) failure of Customer to make any payments to Truework, (ii) Customer’s breach of its FCRA obligations, or (iii) the occurrence of a Security Breach by Customer. Customer will pay in full for the Truework Services up to and including the last day on which the Truework Services are provided, except if the Fees are usage based, then Customer will pay the prorated amount based upon the Term.
c. Effect of Termination. If the Agreement is terminated early by Customer or Truework pursuant to its terms and there are any payments or fees due from Customer pursuant the terms of such Agreement (including any minimum purchase commitment or minimum verification commitments), such fees will be immediately due and payable by Customer to Truework; provided that, if such termination is due to a material breach by Truework, such additional fees or payments will not be due. Upon any termination, Truework will delete Customer Proprietary Information (as defined below); provided, however, Truework may retain Customer Proprietary Information to the extent (i) required by Applicable Laws and Regulations and/or (ii) disclosed to any third-party in connection with any services requested by Customer, provided that Truework will maintain its confidentiality in accordance with the Agreement. All sections of the Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability, until fully performed.
6. Confidentiality. Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Truework includes non-public information regarding features, functionality and performance of the Truework Services. Proprietary Information of Customer includes non-public data provided by Customer to Truework to enable the provision of the Truework Services. Proprietary Information also includes any other information that is designated or marked as confidential at the time of disclosure, or that should reasonably be deemed confidential or proprietary by the Receiving Party, given the nature of the information and/or the circumstances surrounding such disclosure. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Truework Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
7. Representations & Warranties. As of the Agreement Effective Date and continuing all times during the existence of the Agreement, each Party represents and warrants that:
a. It is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation as indicated in the Order Form;
b. The execution and delivery of each applicable Agreement by such Party and the transactions contemplated therein have been duly and validly authorized by all necessary action on the part of such Party; and
c. Each Agreement constitutes a valid and binding obligation of such Party that is enforceable in accordance with its terms.
8. Indemnity.
a. IP Indemnification by Truework. Truework will defend Customer against any claim, demand, suit or proceeding (“Claim”) made or brought against Customer by a third party alleging that Customer’s use of the Truework API in accordance with the Agreement infringes or misappropriates such third party’s intellectual property rights, and will indemnify and hold harmless Customer from any damages, attorney fees and costs finally awarded to such third parties as a result of, or for any amounts paid by Truework under a settlement of, such Claim made in accordance with the terms of Section 8(e) (Indemnification Procedure). The foregoing indemnification obligations of Truework do not apply with respect to any Claim based on or arising from: (i) Customer Data; or (ii) the Truework Services or portions or components thereof that are: (A) to the extent the Claim arises from Customer’s use of the Truework Services not used strictly in accordance with the Agreement; (B) made in whole or in part in accordance with Customer specifications; (C) combined with other products, services, processes, content or materials not supplied by Truework where the alleged infringement would not have occurred without such combination. The foregoing obligations of Truework do not apply to: (iii) any continuing allegedly infringing activity after Customer is notified thereof or provided modifications that would have avoided the alleged infringement, and (iv) any Claims based on or arising out of Customer’s or Customer’s Users breach of the Agreement or an applicable Order Form ((i) through (iv) collectively, the “Excluded Claims”).
b. Infringement. If Truework receives information about an infringement or misappropriation Claim arising directly out of the Truework Services (and not arising out of an Excluded Claim), Truework may in its discretion and at no cost to Customer (i) modify the Truework Services so that they no longer infringe or misappropriate; (ii) obtain a license for Customer’s continued use of the Truework Services or Truework API in accordance with the Agreement or (iii) if (i) and (ii) are not practicable despite Truework’s reasonable efforts, then Truework may terminate Customer’s subscription to the Truework Services and refund Customer a pro-rated amount of any prepaid fees covering the remainder of the term of the terminated subscriptions. Sections 8(a) and 8(b) state Truework’s sole liability, and the Customer’s exclusive remedy, for any infringement or misappropriation of third-party intellectual property rights with respect to the Truework Services.
c. IP Indemnification by Customer. Customer will defend Truework against any Claim made or brought against Truework by a third party alleging that: (i) Customer Data, or Customer’s use of the Truework Services in breach of the Agreement, violates, infringes or misappropriates such third party’s intellectual property or other proprietary or privacy rights, breaches a contractual obligation to a third-party service provider or violates applicable law, order, rule or regulation or (ii) any Excluded Claims, and will indemnify and hold harmless Truework from any damages, attorney fees and costs finally awarded to such third parties as a result of, or for any amounts paid by Customer under a settlement of, such Claim made in accordance with the terms of Section 8(e) (Indemnification Procedure).
d. General Indemnification. Each Party will defend the other against any Claim made or brought by a third-party alleging or otherwise arising out of: (i) a violation of Applicable Laws and Regulations or (ii) a Party’s breach of Section 6 of this Customer Agreement or the Terms of Use, or (iii) a Party’s gross negligence, fraud or willful misconduct or intentional acts causing real property damage, bodily injury or death, and will indemnify and hold harmless the indemnified Party from any damages, attorney fees and costs finally awarded to such third-parties as a result of, or for any amounts paid under a settlement of such Claim made in accordance with the terms of Section 8(e) (Indemnification Procedure). Customer acknowledges and agrees that Truework will not be liable for claims arising from Customer’s use of the Access Provider.
e. Indemnification Procedure. Any claim for indemnification hereunder requires that the indemnified Party (i) promptly give the indemnifying Party written notice of the Claim; (ii) give the indemnifying Party sole control of the defense and settlement of the Claim, provided that the indemnifying Party may participate in the defense of the Claim with counsel of its choosing at its own expense and further provided that the indemnified Party will not be responsible for any settlement that it does not approve in writing, such approval not to be unreasonably withheld and (iii) give the indemnifying Party all reasonable assistance, at indemnifying Party’s expense.
9. Limitation of Liability.
a. NO CONSEQUENTIAL DAMAGES. NEITHER PARTY WILL BE RESPONSIBLE TO THE OTHER FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, OR USE) ARISING OUT OF OR RELATING TO THE AGREEMENT, INCLUDING THE USE OR INABILITY TO USE THE SERVICE, ANY INTERRUPTION, INACCURACY OR ERROR IN THE CONTENT, EVEN IF A PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. LIMITATION OF AMOUNT. EXCEPT FOR (I) EACH PARTY’S INDEMNIFICATION OBLIGATIONS; (II) DAMAGES DUE TO A PARTY’S BREACH OF CONFIDENTIALITY; OR (III) DAMAGE TO TANGIBLE PERSONAL PROPERTY ARISING OUT OF A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, NEITHER PARTY WILL BE LIABLE FOR AGGREGATE LIABILITY THAT EXCEEDS THE SUMS ACTUALLY PAID BY CUSTOMER FOR A PERIOD OF TWELVE (12) MONTHS PRIOR TO THE EVENT FROM WHICH THE CLAIM AROSE UNDER THE APPLICABLE ORDER FORM(S).
10. Miscellaneous.
a. Publicity. Customer agrees that Truework may refer to Customer in Truework’s marketing materials and website. The parties also agree that they will work together in good faith to issue at least one mutually agreed upon customer story within 90 days of the Agreement Effective Date.
b. Notices. All notices, requests, demands, waivers, consents and other communications hereunder will be in writing and will be served by personal service, certified or registered mail or confirmed electronic transmission at the address of the receiving Party set forth in the Agreement and will be deemed complete upon receipt.
c. Assignment. Neither Party may assign the Agreement, by operation of law or otherwise, without the other Party’s prior written approval; provided, however, that a Party may assign its rights and obligations under the Agreement, without the approval of the other Party, to an entity that acquires all or substantially all of the assets of the assigning Party; provided, further that for any permitted assignment by a Party, the assigning Party will provide the non-assigning Party with written notice of such assignment and that the Party receiving the assignment assumes all of the performance obligations and liabilities of the assigning Party. Any attempted assignment in violation of the foregoing will be null and void.
d. Governing Law & Arbitration. The Agreement will be governed by California law, without regard to conflicts of law provisions. Except as expressly stated herein, Section 10 of the Terms of Use (Governing Law & Arbitration) shall apply to this Customer Agreement, pursuant to Section 1(b) above. Either Party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such Party’s intellectual property or proprietary rights. Truework and Customer agree not to demand a trial by jury in any action, proceeding or counterclaim.
e. Remedies. Except as limited by Section 8 (Indemnity), the parties’ rights and remedies hereunder are cumulative. Customer acknowledges that the Truework Services and Verifications may contain sensitive information and the disclosure and collection of data related to those Verifications is regulated, including by the Federal government. Any breach of the Agreement relating to such information and data, including access and use of the Truework API, may constitute harm to Truework for which monetary damages would be inadequate, and that seeking injunctive relief may be an appropriate remedy.
f. Independent Contractors. The Parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of the Agreement or use of the Service. Neither Party will have any authority to contract for or bind the other Party in any manner whatsoever.
g. Waiver; Amendment; Severability. A Party’s failure to enforce any provision in the Agreement will not constitute a waiver unless in writing. No amendment hereof will be effective unless in writing and signed by both parties. If any provision of the Agreement is unenforceable, it will be changed and interpreted to accomplish the objectives of such provision to the extent legally permissible; remaining provisions will continue in full force and effect. Neither Party will be liable for failure to perform due to causes beyond its reasonable control.
h. Entire Agreement. The Agreement forms the entire agreement between Customer and Truework regarding the subject matter hereof. It supersedes all prior or contemporaneous negotiations or agreements between the parties regarding its subject matter. Any conflict between this Customer Agreement and the terms of any Order Form, or other exhibit hereto, will be resolved in the following order: (a) any Order Form in date order with the most recent Order Form being of highest precedence; (b) this Customer Agreement; and (c) any exhibits to this Customer Agreement. Any preprinted terms on any Customer order form will have no effect on the terms of the Agreement and are hereby rejected. Headings are for reference purposes. “Including” means “including but not limited to.”
11. Other Definitions. Unless otherwise defined herein, capitalized terms used throughout this Customer Agreement have the same meaning as set forth in the Order Form or Terms of Use.
a. “Agreement” means this Customer Agreement, any Order Forms, the Terms of Use, and any other exhibits, addenda or attachments hereto or thereto.
b. “Applicable Laws and Regulations” means all applicable federal, state, provincial, regional, territorial and local Laws, opinions, interpretive letters and official releases of or by the U.S. government, or any authority, department or agency thereof or self-regulatory organization that relate to the processing of Personal Data or the confidentiality, security or protection of Personal Data, including but not limited to, the California Consumer Privacy Act, the European Union General Data Protection Regulation, and any similar Laws.
c. “Customer Data” means any data, including User Data and Consumer Data, provided by Customer in connection with Customer’s use of the Truework Services.
d. “Laws” means laws, rules, regulations, directives, ordinances, orders, governmental requirements, or statutes.
e. “Personal Data” means all data and information that is provided, made accessible, retrieved, or collected during the course of performance of the Agreement, including without limitation all non-public personal information (NPI) as defined by the GLBA and Personally Identifiable Information.
f. “Personally Identifiable Information” means any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, either by direct or indirect means with a particular consumer or household, and as otherwise defined by any Applicable Laws and Regulations as “Personal Information”, “Personal Data”, or similar term.
g. “Truework Services” means the income and employment verification-related services provided by or through Truework, its subsidiaries or affiliates, to Customer, as set forth in a respective Order Form.
h. “User” means a person authorized by Customer to use the Truework Services.