Last Updated: May 15th, 2018
This Trillian Customer Agreement (the "Agreement") is a legal agreement between Customer (as defined below) and Cerulean Studios, LLC, a Delaware limited liability company ("Cerulean"). If (i) Customer is a "covered entity" or a "business associate" and includes "protected health information" as those terms are defined in 45 CFR § 160.103 in Customer Data (as defined below), and (ii) Customer has purchased a license for the Business Trillian Services (as defined below) and remains continuously on paid-up support for the same, then Customer's acceptance of this Agreement includes acceptance of the HIPAA Business Associate Agreement ("BAA"), the full text of which is available at https://trillian.im/legal/hipaa-business-associate-agreement/. Please read this Agreement carefully before accessing or using the Trillian Services (as defined below) or making the Trillian Services available to Authorized Users (as defined below).
|Unless Customer meets the eligibility requirements above, Customer acknowledges that Cerulean is not a "business associate" of Customer and that Customer must not disclose, transmit, or otherwise process any "protected health information" as those terms are defined in 45 CFR § 160.103 via or through the Trillian Services.|
|By accessing or using the Trillian Services or making the Trillian Services available to Authorized Users, you are entering into and agreeing to be bound by the terms of this Agreement. You are not authorized to access or use the Trillian Services or make the Trillian Services available to Authorized Users if you do not agree to the terms and conditions of this Agreement.|
1. Trillian Services
The capitalized term "Trillian Services" means the Trillian software, services, and websites made available to you in connection with this Agreement and all related documentation, enhancements, and updates that may be provided to you in the future by Cerulean.
The capitalized term "Business Trillian Services" means the version of the Trillian Services designed for use by organizations, not individuals, and that is sometimes referred to as Trillian for Business. For clarity, a customer of the Business Trillian Services is one that signs into the Trillian Services using a (company-owned) email address instead of a self-assigned username (e.g., firstname.lastname@example.org instead of tricia42).
2. Customer and Authorized Users
If you are signing up for the Business Trillian Services, "Customer" and "you" refer to the business entity or organization on whose behalf the Agreement is being entered into, and you represent that you have the necessary authority to enter into this Agreement on behalf of the same. Otherwise, you are entering into this Agreement on your own behalf, and "Customer" and "you" refer to you as an individual.
2.2. Authorized Users.
In some cases, Customer may authorize third parties to be its "Authorized Users" who can access and use the Trillian Services in accordance with the Authorized User Agreement. The Authorized User Agreement, the full text of which is available at https://trillian.im/legal/authorized-user-agreement/
, is incorporated into this Agreement for the purposes set forth below. In addition, if Customer signs up to use the Trillian Services, then Customer is also an Authorized User and agrees to be bound by the Authorized User Agreement in addition to the other terms of this Agreement.
3. Customer Obligations
In consideration of Authorized Users' access to and use of the Trillian Services, Customer represents that all Authorized Users are of legal age to form a binding contract and are not barred from receiving the Trillian Services under the laws of the United States or other applicable jurisdiction.
4. Grant of License
The Trillian Services are licensed, not sold, to you by Cerulean for use strictly in accordance with the terms and conditions of this Agreement. Ownership of the Trillian Services will at all times remain with Cerulean. Copies of the Trillian Services are provided to you only to allow you and your Authorized Users to exercise your rights under this Agreement. Subject to the terms and conditions set out in this Agreement and solely with respect to the Trillian Services, Cerulean grants you a personal, limited, nonexclusive, nontransferable, non-sublicensable, and revocable right to allow Authorized Users to use the Trillian Services on as many supported computers and devices owned, leased, or rented by you as you require.
5. Prohibited Conduct
You agree to use the Trillian Services strictly in accordance with this Agreement and not to, and not to permit others to: (i) reverse engineer, decompile, disassemble, derive the source code of the Trillian Services; (ii) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Trillian Services; (iii) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Cerulean or its affiliates, partners, suppliers or the licensors of the Trillian Services; (iv) use, copy, modify, alter, or transfer, electronically or otherwise, the Trillian Services, or any of the accompanying documentation except as expressly permitted in this Agreement; (v) make the Trillian Services available over a network or other environment permitting access or use by multiple users at the same time; (vi) use the Trillian Services for any revenue generating endeavor or commercial enterprise, or for any other purpose for which it is not designed or intended; (vii) redistribute, sell, rent, lease, sublicense, or otherwise transfer rights to the Trillian Services, in whole or in part, whether in a stand-alone configuration or as incorporated with other software code written by any party, except as expressly permitted in this Agreement; (viii) permit Authorized Users to take any action in violation of the Authorized User Agreement; (ix) use the Trillian Services in any manner that could damage, disable, overburden, or impair Cerulean's servers or networks or those of any network provider to which the Trillian Services may connect; or (x) attempt to gain unauthorized access to any services, computer systems, or networks through hacking, password mining, or any other means. Cerulean may take legal and technical remedies to prevent violation of this provision and to enforce this Agreement.
6. Intellectual Property Rights
6.1. Rights to the Trillian Services.
The Trillian Services and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and will remain, the property of Cerulean. Furthermore, the source of the Trillian Services and the format, directories, queries, algorithms, structure and organization of the Trillian Services are the intellectual property and proprietary and confidential information of Cerulean and its affiliates, licensors and suppliers. Except as expressly stated in this Agreement, you are not granted any intellectual property rights in or to the Trillian Services by implication, estoppel or other legal theory, and all rights in and to the Trillian Services not expressly granted in this License are hereby reserved and retained by Cerulean.
6.2. Third-Party Software.
The Trillian Services may utilize or include third-party software that is subject to open source and third-party license terms ("Third-Party Software"), including, without limitation, the license provisions provided at https://trillian.im/legal/third-party-licenses/
(the "Third-Party Software Licenses"). Your right to use such Third-Party Software as part of the Trillian Services is subject to and governed by the terms and conditions of the open source or third-party license applicable to such Third-Party Software, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein. In the event of a conflict between the terms of this Agreement and the terms of such open source or third-party licenses, the terms of the open source or third-party licenses will control with regard to your use of the relevant Third-Party Software. In no event will the Trillian Services or components thereof be deemed to be "open source" or "publicly available" software, except as expressly set forth in the Third-Party Software Licenses.
6.3. Cerulean Marks.
The following company names and logos and all related product and service names, design marks and slogans are trademarks and service marks owned by and used under license from Cerulean: "Cerulean Studios" and "Trillian" (the "Cerulean Marks"). You are not authorized to use the Cerulean Marks in any advertising, publicity or in any other commercial manner without the prior written consent of Cerulean, which may be withheld for any or no reason. You agree that you will not remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Trillian Services or any accompanying documentation.
6.4. Infringement Acknowledgement.
In the event of a third-party claim that your or any Authorized User's possession or use of the Trillian Services infringes any third party's intellectual property rights, you (and not Cerulean or its affiliates) will be responsible for the investigation, defense, settlement and discharge of any such claim of intellectual property infringement.
7. Collection, Storage, and Use of Information
7.2. Ownership of Customer Data.
7.3. Ownership of Service Data.
8. Third-Party Content and Services
The Trillian Services may permit Authorized User access to products (including plugins), services, web-sites, advertisements, promotions, recommendations, advice, information, and materials created and provided by third parties (e.g., advertisers, publishers, content partners, marketing agents, vendors and other third parties) ("Third-Party Content and Services").
Cerulean does not investigate, monitor, represent or endorse the Third-Party Content and Services (including any third-party websites or communication services available through the Trillian Services). Furthermore, Authorized User access to and use of the Third-Party Content and Services is at your sole discretion and risk, and Cerulean and its affiliates, partners, suppliers and licensors will have no liability to you or any Authorized User arising out of or in connection with access to and use of the Third-Party Content and Services by you or Authorized Users. Cerulean hereby disclaims any representation, warranty or guaranty regarding the Third-Party Content and Services, whether express, implied or statutory, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose, and any representation, warranty or guaranty regarding the availability, quality, reliability, features, appropriates, accuracy, completeness, or legality of the Third-Party Content and Services.
The provision of access to and the listing of any Third-Party Content and Service (including any third-party websites available through the Trillian Services) will not constitute or imply any endorsement by Cerulean or its affiliates of such Third-Party Content and Services. Cerulean reserves the right to restrict or deny access to any Third-Party Content and Services otherwise accessible through the Trillian Services, although Cerulean has no obligation to restrict or deny access even if requested by you or any Authorized User.
8.4. Inappropriate Materials.
By accessing and using the Third-Party Content and Services, Authorized Users may encounter information, materials and subject matter: (i)
that you or others may deem offensive, indecent, or objectionable; (ii)
which may or may not be identified as having explicit language, and (iii)
that automatically and unintentionally appears in information displayed by the Trillian Services, as a link or reference to objectionable material. Cerulean and its affiliates, partners, suppliers and licensors will have no liability to you or any Authorized User for information, material or subject matter that is found to be offensive, indecent, or objectionable.
9. Term and Termination
9.1. Termination for Cause.
This Agreement will terminate automatically if you or any of your Authorized Users breach any of your obligations under this Agreement or any other agreement between you and Cerulean, or if any Authorized Users breach the Authorized User Agreement (collectively, a "Breach"). Without limiting other remedies, Cerulean may limit, suspend, or terminate this Agreement and all use of the Trillian Services by you and your Authorized Users and prohibit access to the Trillian Services, with immediate effect, automatically and without recourse to the courts, if Cerulean believes that a Breach has occurred or that you or your Authorized Users are creating problems, legal liabilities (actual or potential), infringing someone else's intellectual property rights, engaging in fraudulent, immoral or illegal activities, or for other similar reasons. Cerulean will effect such termination by providing notice to you at the email address you have provided, and/or by deactivating Authorized Users' accounts.
9.2. Termination Without Cause.
You may terminate this Agreement at any time by notifying Cerulean and immediately discontinuing all use of the Trillian Services and causing your Authorized Users to immediately discontinue all use of the Trillian Services. Cerulean may terminate this Agreement at any time by giving you 30 days prior written notice and will effect such termination by providing notice to you at the email address you have provided, and/or by deactivating Authorized Users' accounts. Cerulean also reserves the right without any notice to you or any Authorized User to deactivate accounts that have been inactive (including, without limitation, not signing into the Trillian Services) for more than 180 days.
9.3. Data Deletion.
The Trillian Services provide you with the capability to obtain a copy of or delete your Customer Data. Accordingly, following the termination of this Agreement, Cerulean will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.
All provisions of this Agreement which by their express language or by their context are intended to survive the termination of this Agreement will survive such termination.
10. Disclaimer of Warranty
THE TRILLIAN SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND YOUR USE OF OR RELIANCE UPON THE TRILLIAN SERVICES AND ANY THIRD-PARTY CONTENT AND SERVICES ACCESSED THEREBY IS AT YOUR SOLE RISK AND DISCRETION. CERULEAN AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE TRILLIAN SERVICES AND THIRD-PARTY CONTENT AND SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHERMORE, CERULEAN AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT: (I) THE TRILLIAN SERVICES OR THIRD-PARTY CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE TRILLIAN SERVICES OR THIRD-PARTY CONTENT AND SERVICES WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE OR ERROR-FREE; (III) THE TRILLIAN SERVICES WILL BE COMPATIBLE OR INTEROPERABLE WITH ANY COMPUTER, MOBILE DEVICE, OPERATING SYSTEM, INTERNET BROWSER SOFTWARE, OR ANY OTHER PIECE OF HARDWARE, SOFTWARE, EQUIPMENT OR DEVICE; (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE TRILLIAN SERVICES WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (V) ANY ERRORS IN THE TRILLIAN SERVICES OR THIRD-PARTY CONTENT AND SERVICES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU OR ANY AUTHORIZED USER FROM CERULEAN OR FROM THE TRILLIAN SERVICES WILL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY. EXCEPT FOR THE SUPPORT SERVICES UNDER THE ORDER, CERULEAN HAS NO OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE SUPPORT OR MAINTAIN THE TRILLIAN SERVICES.
IN THE EVENT OF ANY FAILURE OF THE TRILLIAN SERVICES TO CONFORM TO ANY APPLICABLE WARRANTY, YOU MAY NOTIFY CERULEAN, AND CERULEAN WILL, AS YOUR SOLE AND EXCLUSIVE REMEDY, REFUND TO YOU AN EQUITABLE PORTION OF THE PURCHASE PRICE PAID, IF ANY, FOR THE NONCONFORMING TRILLIAN SERVICES. CERULEAN WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE TRILLIAN SERVICES, AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY WILL BE YOUR SOLE RESPONSIBILITY.
11. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CERULEAN OR ITS AFFILIATES, PARTNERS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE TRILLIAN SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, CERULEAN'S COLLECTIVE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT WILL NOT EXCEED IN THE AGGREGATE THE SUM OF THE PURCHASE PRICE PAID, IF ANY, FOR THE TRILLIAN SERVICES. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12. Indemnification and Third-Party Claims
You will indemnify, defend and hold harmless Cerulean and its affiliates, partners, suppliers and licensors, and each of their respective officers, directors, agents and employees (the "Indemnified Parties") from and against any claim, proceeding, loss, damage, fine, penalty, interest and expense (including, without limitation, reasonable fees for attorneys and other professional advisors) arising out of or in connection with the following: (i) your breach of this Agreement; (ii) your violation of law; (iii) your negligence or willful misconduct; or (iv) your violation of the rights of a third party, including the infringement by you of any intellectual property or misappropriation of any proprietary right or trade secret of any person or entity. These obligations will survive any termination of this Agreement.
You, and not Cerulean, are responsible for addressing any third-party claims relating to or resulting from your use or possession of the Trillian Services, and agree to notify Cerulean of any third-party claims relating to the Trillian Services of which you become aware. Furthermore, you hereby release Cerulean from any liability related to or resulting from your use or possession of the Trillian Services.
13. Export Control
The Trillian Services may contain encryption and are subject to United States export control laws and regulations and may be subject to export or import regulations in other countries, including controls on encryption products. You agree that you will not export, re-export or transfer the Trillian Services in violation of any applicable laws or regulations of the United States or the country where you legally obtained it. You are responsible for obtaining any licenses to export, re-export, transfer or import the Trillian Services.
In addition to the above, the Trillian Services may not be used by, or exported or re-exported to: (i) any U.S. or EU sanctioned or embargoed country, or to nationals or residents of such countries; or (ii) any person located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; or (iii) any person listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List, as published and revised from time to time; or (iv) any party engaged in nuclear, chemical/biological weapons or missile proliferation activities, unless authorized by U.S. and local (as required) law or regulations. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
14. Software Suggestions
Cerulean welcomes suggestions for enhancing the Trillian Services and any accompanying documentation that may result in computer programs, reports, presentations, documents, ideas or inventions relating or useful to Cerulean's business. All title, ownership rights, and intellectual property rights concerning such suggestions will become the exclusive property of Cerulean and may be used for its business purposes in its sole discretion without any payment or accounting to you.
You may not assign, sublicense or transfer the Trillian Services, this Agreement or any of the rights granted hereunder, except as expressly set forth in this Agreement. Any attempted assignment, sublicense, or transfer in contravention of this Section 15 will be null and void and of no force or effect. Cerulean may provide the Trillian Services through one or more subsidiaries, affiliates, or third parties.
16.1. Entire Agreement.
This Agreement constitutes the entire agreement between the parties concerning the Trillian Services, and may be amended only by a writing signed by both parties.
16.2. Governing Law.
This Agreement will be governed by the laws of the State of New York, excluding its conflict of law provisions. All disputes relating to this Agreement are subject to the exclusive jurisdiction of the courts of New York and you expressly consent to the exercise of personal jurisdiction in the courts of New York in connection with any such dispute. Each party waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Agreement. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
If any provision in this Agreement should be held illegal or unenforceable by a court of competent jurisdiction, such provision will be modified to the extent necessary to render it enforceable without losing its intent or severed from this Agreement if no such modification is possible. Other provisions of this Agreement will remain in full force and effect.
A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
16.5. Third-Party Beneficiaries.
Nothing contained in this Agreement is intended or will be construed to confer upon any person (other than the parties hereto) any rights, benefits or remedies of any kind or character, or to create any obligations or liabilities of a party to any such person.
16.6. Use by or for the U.S. Government.
The Trillian Services are a commercial item as defined in FAR 2.101(a) and developed solely at private expense. As such, the Trillian Services are provided with only such rights as are provided in this Agreement.