Effective Date: August 18, 2022
ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 17 (ARBITRATION AND CLASS ACTION WAIVER) BELOW, USER AGREES THAT ALL DISPUTES BETWEEN USER AND TENNA WILL BE RESOLVED EXCLUSIVELY BY BINDING, INDIVIDUAL ARBITRATION AND, FURTHER, THAT USER WAIVES USER’S RIGHT TO BRING OR RESOLVE ANY DISPUTE AS, OR TO PARTICIPATE IN, A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR ARBITRATION.
User represents and warrants to Tenna that:
- If an individual, User is at least 18 years of age or older;
- All registration, payment, and account information User submits is complete, accurate and truthful;
- User will maintain the completeness, accuracy and truthfulness of such information by updating Tenna promptly if any such information changes; and
- User is legally permitted to use and access the Products and Services and takes full responsibility for User’s selection, use of, and access to the Products and Services.
1. REGISTRATION AND SECURITY:
- As a condition to using certain aspects or functionality of the Products and Services, User may be required to register with Tenna and select a password and user name (“Tenna User ID”). User shall provide Tenna with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in termination of User’s account following written notice of the need for updated information and a thirty (30) day cure period. User may not (i) select or use as a Tenna User ID a name of another person with the intent to impersonate that person; or (ii) use as a Tenna User ID a name subject to any rights of a person other than User without appropriate authorization. Tenna reserves the right to disable a User at TENNA’s commercially reasonable discretion if reasonably determined by TENNA that User ID is compromised. User shall be responsible for maintaining the confidentiality of User’s Tenna User ID and password. User agrees that User shall only use accounts owned by User, and not by any other person or entity. User must also update User’s information so that Tenna may send notices, statements and other information to User by email or through User’s account. User is responsible for all actions taken through User’s accounts.
- In the event User’s Tenna User ID is compromised, lost, or stolen, it is User’s responsibility to immediately Contact Us.
- Tenna reserves the right to validate User information at any time, including but not limited to validation against third-party databases or the verification of one or more government-issued identifiers or other documents that confirm the User’s identity. User hereby authorizes Tenna, directly or through third parties, to make any inquiries necessary to validate User’s identity and confirm User’s ownership of its email address or financial accounts, subject to applicable law. Failure to provide information about User and User’s business operations when requested by Tenna or any agent of Tenna is a violation of this Agreement.
- User is solely responsible for ensuring and maintaining the secrecy and security of User’s Tenna User ID and login credentials and passwords, and for maintaining the secrecy and security of any other account or site through which User accesses the Site.
2. GRANT OF LICENSES:
- User acknowledges that:
- All right, title and interest in and to the Services and the software related thereto, and all patents, copyrights, trade secret rights, trademarks, trade names and other intellectual property, proprietary, and moral rights embodied therein or associated therewith, are and shall remain with Tenna and/or its licensors;
- The Services and the software related thereto are protected by the copyright laws of the United States and treaties to which the United States is a party, as well as other intellectual property laws and treaties;
- The Services and the software related thereto separately and together embody valuable confidential and secret information of Tenna and/or its licensors, the development of which required the expenditure of considerable time and money; and
- Shall take all reasonable precautions to prevent unauthorized or improper use or disclosure of the Services and the Site;
- Acknowledges and agrees that:
- The Services require access to and use of the Internet and that the Internet is an unregulated public network over which Tenna exerts no control; and
- User is solely responsible for ordering and commissioning any required hardware, software, and other equipment necessary to meet the minimum specifications published by Tenna in order to use and/or access the Services; and
- Shall pay all fees and other amounts and charges shown on User’s Order(s) as and when due without holdback or setoff of any kind.
- Shall not:
- Copy, modify or create derivative works or improvements of the Services or any software related thereto;
- Reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or any software related thereto, in whole or in part;
- Bypass or breach any security device or protection used by the Services or any software related thereto;
- Input, upload, transmit or otherwise provide to or through the Services or any software related thereto any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful or malicious code, virus, worm, or similar device;
- Damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services or any software related thereto;
- Remove, delete, alter or obscure any trademarks, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Services or any software related thereto;
- Access or use the Services or any software related thereto other than as expressly permitted by this Agreement; or
- Otherwise access or use the Services or any software related thereto beyond the scope of this Agreement.
- If User is a branch, agency, or department of the United States Government, then the following provisions shall apply:
- User acknowledges that the Products and Services and all related documentation were developed at private expense and no part thereof is in the public domain;
- User further acknowledges that the Products and Services comprise, contain, and or embody Restricted Computer Software, as defined in Clause 52.227.19 of the Federal Acquisition Regulations (“FAR”), and Commercial Computer Software, as defined in Sub-part 227.401 of the Department of Defense Federal Acquisition Regulation Supplement (“DFARS”).
- User agrees that
- If supplied to the Department of Defense (“DoD”), the Products and Services and all related documentation are classified as Commercial Computer Software and User is acquiring only restricted rights thereto and related documentation, as defined in Clause 52.227.7013(c)(1) of the DFARS, and
- If supplied to any unit or agency of the United States Government other than the DoD, User’s rights in the Products and Services and related documentation will be as defined in Clause 52.227.19(c)(2) of the FAR.
- “User-Identifiable Data” means data and information pertaining to User and/or the equipment assets of User that are input into the Services or those services or applications of Tenna’s licensors, whether by User directly or indirectly or by means of one or more Products and the technology resident therein.
- “Third Party-Provided User Data” means data and information pertaining to User and/or the equipment assets of User that third party sites or services provide to Tenna, whether by agreement, license, permission, or otherwise, for use by User in connection with the Services.
- “Tenna Data” means data and information pertaining to User and the equipment assets of User that are generated, calculated, analyzed, stored, or otherwise manipulated or managed by Tenna and/or its licensors on behalf of User. Tenna Data may be derived from User-Identifiable Data and/or Third Party-Provided User Data.
- “Aggregate Data” means
- User-Identifiable Data,
- Third Party-Provided User Data,
- Tenna Data, and/or
- Other data and other information relating to the provision, use and performance of the Services or those services or applications of Tenna’s licensors or that is transmitted through the Services or those services or applications of Tenna’s licensors (collectively, “Other Data”),
- Tenna’s services including but not limited to integrations to other third-party systems, for example; ViewPoint Vista, AEMP, OEM, mapping and other data feeds as part of the services.
- that is de-identified and anonymized, aggregated, and recorded or stored by Tenna and/or its licensors.
- For clarity, User-Identifiable Data does not include Third Party-Provided User Data or Tenna Data. Tenna stores User-Identifiable Data, Third Party-Provided User Data, Tenna Data, and/or Other Data on a rolling six (6) months’ basis.
- In connection with its exercise of its license to use and access the Services, User may under the applicable subscription use the Services to access Third Party-Provided User Data that has been integrated into the Services. In some instances, to access Third Party-Provided User Data User must first enter into Tenna access credentials granted by those providers. By entering those access credentials, User represents and warrants that:
- User has the full right and authority to enter those access credentials and to access and use the services offered by the provider(s), and
- User’s access to and use of Third Party-Provided User Data for integration within the Services is authorized and is permitted by the provider(s).
- User hereby grants to Tenna a license to access, integrate within the Services, and use, sell, reproduce, publicly display, publicly perform, prepare derivative works upon, distribute, sublicense, and translate any and all Third Party-Provided User Data. This license is nonexclusive, world wide, fully paid, royalty-free, perpetual, irrevocable, sub-licensable, and transferable. Under this license, without limiting the generality of the foregoing, Tenna may fully use and exploit Third Party-Provided User Data in providing it to User within the features and functionality of the Products and Services, whether by using it to derive Tenna Data or otherwise, and may de-identify, anonymize, and aggregate Third Party-Provided User Data with Third Party-Provider User Data of other users and/or with Aggregate Data without accounting for any such use or exploitation. Tenna shall not disclose Third Party-Provided User Data that has not been de-identified, anonymized, or aggregated to third parties without the permission of User.
- “Content” means any and all materials displayed or provided on the Site or with respect to the Services, including, but not limited to text, graphics, articles, photographs, video (with or without audio), images, recordings, illustrations, music, and spoken word. Content includes Content that is submitted by Tenna and its licensors and suppliers as well as User Submissions, User Generated Content, and End User Content.
- “User Submissions” is Content that is submitted by User.
- “User Generated Content” means Content produced through User’s use of the Products and Services, including without limitation photographs and images captured by the Products.
- “End User Content” is Content that is submitted by end users of the Site and the Services other than User.
- Tenna hereby grants to User a nonexclusive, nontransferable, limited license to access and review Content that is not a User Submission and to post, access, review, and edit User Submissions via the Site.
- By posting User Submissions, User hereby grants to Tenna a nonexclusive world wide, fully paid, royalty-free, perpetual, irrevocable, sub-licensable, and transferable license to use, reproduce, copy, display, publish, distribute and otherwise exploit User Submissions without accounting for any such use or exploitation.
- As between Tenna and User, all right, title and interest in and to User Generated Content is and remains with Tenna and, to the extent remaining with User, User hereby assigns all such right, title and interest to Tenna. User further hereby knowingly and voluntarily waives any and all rights of publicity and privacy with respect to Tenna’s use and distribution of User Generated Content and any and all rights to any royalties or other benefits derived from such use and distribution. User agrees to execute and deliver any further agreement or instrument Tenna may request to further document and perfect such assignment, right and waiver. This clause does not apply and is void as to a User that is a branch or agency of the United States government or of the government of any state or territory within the United States.
- Content may be protected by copyright. User shall abide by all copyright notices, trademark notices, information, and restrictions contained in any Content accessed through the Site or the Services, and User shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, retransmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content that is not a User Submission (i) without the express prior written consent of its owner and (ii) in any way that violates any third party right.
- Unauthorized use of any Content contained on this Site may violate copyright laws, trademark laws, the laws of privacy and publicity, and/or other regulations and statutes. If User believes or becomes aware that any of the Content infringes on any third party’s intellectual property rights, User shall notify Tenna promptly at the address provided below. Except as expressly provided herein, Tenna and its licensors reserve all rights with respect to the Content that do not constitute User Submissions or End User Content and may pursue all legally available options under both civil and criminal laws (and may cooperate with law enforcement agencies) in the event of any violations, including but not limited to the right to terminate accounts of User.
- User warrants, represents and agrees that no User Submission is, does or shall
- Infringe or violate the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of Tenna or any third party;
- Violate any law, statute, ordinance or regulation;
- Be harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, obscene, libelous, or otherwise objectionable;
- Impersonate any person or entity, including without limitation any employee or representative of Tenna;
- Contain a virus, Trojan horse, worm, time bomb, or other harmful or malicious computer code, file, or program; or
- Violate or by means of its posting constitute a breach of any agreement or obligation User may have with or to a third party.
- Tenna reserves the right to remove any Content from the Site or Services at any time, for any reason or for no reason at all. User, not Tenna, remains solely responsible for all User Submissions and User warrants that User possesses all rights necessary to provide such User Submissions to Tenna and to grant Tenna the rights to use such information as provided herein.
- User is responsible for all of User’s account activity in connection with the Site, all Content, and the Products and Services, except to the extent such activity arises from Tenna’s acts or omissions. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of User’s account and right to access or use the Products and Services. User may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or personal or private information from any other user of the Services. Use of the Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal or unlawful material (including material that may be considered threatening or obscene), or engage in any kind of illegal activity is expressly prohibited. User shall not run Maillist, Listserv, any form of auto-responder, or “spam” on the Site or the Services, or any processes that run or are activated while User is not logged on to the Site or the Services, or that otherwise interfere with the proper working of or place an unreasonable load on the infrastructure(s) of the Site or the Services. User shall not conduct any systematic or automated data collection activities including, without limitation, scraping, data mining, data extraction and data harvesting. Further, the use of manual or automated software, devices, bots or other processes to “crawl,” “scrape,” or “spider” any portion of the Site or the Services is strictly prohibited. User will not decompile, reverse engineer, or otherwise attempt to obtain the source code of the Services. User will be responsible for withholding, filing, and reporting all taxes, duties and other governmental assessments associated with User activity in connection with the Products and Services.
- User understands and agrees that should Tenna reasonably request the deletion of a link to the Site that is within User’s control, User will delete the link promptly.
- User will not access (or attempt to access) the Site or the Services by any means other than the interface and account provided by Tenna. User will not use information or Content from the Site or the Services for any purpose other than the purpose for which it was made available. User will not engage in any activity that interferes with or disrupts the functioning of the Site or the Services. User will not insert, attach or upload an invalid or malicious or unknown file or link to the Site or the Services or that may be used to offer products and services of any kind.
- Subject to the terms and conditions of this Agreement, the Services are solely for User’s own business use, and not for the use or benefit of any third party. For clarity, User will not re-rent or otherwise sell the Services or make their use available to any third party.
6. FEES: Amounts and payment terms are as set forth in User’s Order(s). All sales of Services are FINAL; Tenna’s return policy for Products is found at https://www.tenna.com/return-policy/. Tenna will not issue refunds to the User if the User decides to cancel a subscription to the Services. If Tenna ceases offering the Service to which User has subscribed, Tenna may terminate this Agreement and User’s license with respect to the affected Service and as User’s sole remedy therefor Tenna will provide User with a pro-rata refund of the fees allocable for the Service for the period from the termination date to the end of the pre-paid period (if any) that Tenna received payment for, within 45 days after the termination date.
7. CHANGES TO THE PRODUCTS AND THE SERVICES: With at least sixty (60) days prior written notice to User, of specific material changes that affect performance of applicable services, Tenna or its service providers may change, suspend or discontinue any of the Products and/or any of the Services, including the availability of any feature, database or content, or impose limits or restrictions on certain features and functions, at any time and for any reason. Not all Products and Services are appropriate or available for use outside of the United States.
8. LIMITATIONS ON USE OF PRODUCTS; NOT FOR EXPORT: User represents and warrants that User is buying the Products for User’s lawful business purposes only, and not for resale or export, and User will not use the Products for any purpose other than the User’s lawful business purposes. Products may be controlled for export purposes by export regulations, including but not limited to, the Export Administration Act of 1979 (50 U.S.C. 2401-2410), the Export Administration Regulations promulgated thereunder (15 C.F.R. 768-799), the International Traffic in Arms Regulations (22 C.F.R. 120-128 and 130) and their successor and supplemental regulations (collectively, “Export Regulations”). Each Party shall comply with all applicable laws and regulations, including without limitation all Export Regulations.
9. LIMITED WARRANTY:
- The link contained in the caption to this section sets forth Tenna’s limited warranty with respect to the Products and the Services, which serves as User’s sole and exclusive remedy for any claims pertaining to the Products and the Services. EXCEPT AS EXPRESSLY SET FORTH IN THAT LIMITED WARRANTY, THE PRODUCTS AND THE SITE, THE SERVICES, AND ALL CONTENT ARE PROVIDED “AS IS” AND, TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, TENNA AND ITS LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY, IN CONNECTION WITH THEM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT USE OF THE CONTENT, THE SITE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE RESULTS OBTAINED FROM THE USE OF THE PRODUCTS AND SERVICES OR ANY CONTENT WILL MEET OR SATISFY USER’S REQUIREMENTS.
- TENNA CANNOT AND DOES NOT GUARANTEE OR ENSURE (I) THE FORM, FIT, FUNCTION OR CONDITION OF ANY PRODUCTS OR SERVICES, (II) THE SAFETY, OR LEGAL OR REGULATORY COMPLIANCE OF, ANY PRODUCTS OR SERVICES, (III) THE ACCURACY OF ANY DATA PROVIDED BY THE PRODUCTS, THE SERVICES, OR IOT SENSORS, TRACKERS, TAGS, OR OTHER DEVICES, OR (IV) THE ACTS OR OMISSIONS OF ANY TENNA USER OR SERVICE PROVIDER. Any and all communications, correspondence, warranties, and/or representations, oral or written, made by User or received by User from any third party, whether via User Submissions or otherwise, are not made by (and do not legally bind) Tenna. User warrants that it has undertaken its own investigation of all matters relating to the Products and the Services and therefore has not received or relied upon, and will not receive or rely upon, any statements or representations by Tenna concerning such matters.
- USER UNDERSTANDS THAT ALL USER SUBMISSIONS AND END USER CONTENT ARE THE SOLE RESPONSIBILITY OF THE PERSON FROM WHICH SUCH CONTENT ORIGINATED AND MAY NOT BE ACCURATE OR UP-TO-DATE. TENNA IS NOT AND WILL NOT BE LIABLE FOR ANY ERRORS OR OMISSIONS IN ANY USER SUBMISSION OR END USER CONTENT. USER ACKNOWLEDGES THAT ACCESS TO AND USE OF ANY CONTENT BY USER ARE AT USER’S OWN RISK AND USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS INCURRED BY USER OR ANY OTHER PARTY RESULTING THEREFROM.
10. LIMITATION OF LIABILITY: WITH THE EXCEPTION OF ANY STATUTORY WARRANTY OR REMEDY THAT CANNOT BE EXCLUDED OR LIMITED UNDER LAW,
- IN NO EVENT WILL TENNA OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM THE USE OR INABILITY TO USE THE SITE, ANY CONTENT, OR THE PRODUCTS OR SERVICES, REGARDLESS OF WHETHER THEY HAVE BEEN INFORMED OF SUCH DAMAGES, AND
- TENNA AND ITS LICENSORS SHALL NOT BE LIABLE UNDER ANY THEORY FOR LOST, CORRUPTED OR INACCURATE DATA OR PROCUREMENT OF SUBSTITUTE PRODUCTS, TECHNOLOGIES, OR SERVICES, FOR ANY BUSINESS LOSSES, LOSS OF REVENUE, INCOME, PROFITS OR ANTICIPATED SAVINGS, LOSS OF CONTRACTS OR BUSINESS RELATIONSHIPS, LOSS OF REPUTATION OR GOODWILL, OR LOSS OR CORRUPTION OF INFORMATION OR DATA, OR FOR ANY MATTER BEYOND TENNA’S REASONABLE CONTROL.
IN NO EVENT SHALL TENNA’S LIABILITY TO USER IN RESPECT OF ANY CLAIM PERTAINING TO THE PRODUCTS EXCEED THE AMOUNT PAID IN RESPECT OF THE PRODUCTS IN QUESTION, DEPRECIATED OVER THE USEFUL LIFE OF THE PRODUCTS. IN NO EVENT SHALL TENNA’S LIABILITY TO USER IN RESPECT OF ANY CLAIM PERTAINING TO THE SERVICES EXCEED THE AMOUNT PAID IN RESPECT OF THOSE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE CLAIM. IN NO EVENT SHALL TENNA’S LIABILITY TO USER IN RESPECT OF ANY OTHER CLAIM, INCLUDING WITHOUT LIMITATION ANY CLAIM PERTAINING TO THE SITE OR ANY CONTENT, EXCEED US $500 IN THE AGGREGATE. THE FOREGOING LIMITATIONS SHALL NOT APPLY WITH RESPECT TO PERSONAL INJURY.
11. TRADEMARKS: Trademarks and service marks that may be referred to or appear on the Site or that appear on any of the Products and Services are the property of Tenna or their respective owners. No license or right to use any trademark or service mark, including without limitation Tenna’s names, marks, and logos, or to frame or hyperlink the Site, is granted, expressly, by implication, by estoppel, or otherwise without the prior express written permission of its owner in each instance and in such owner’s sole discretion.
12. INTERACTION WITH THIRD PARTIES: The Site and the Services may contain links to third party websites or services (“Third Party Services”) that are not owned or controlled by Tenna. When User accesses Third Party Services, User does so at User’s own risk. User hereby represents and warrants that User has read and agrees to be bound by all applicable policies of any Third Party Services relating to User’s use of the Services and that User will act in accordance with those policies, in addition to User’s obligations under this Agreement. Tenna has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, practices of, or opinions expressed in, or results obtained from the use by User of any Third Party Services. By using the Site and the Services, User expressly releases and holds harmless Tenna from any and all claims, demands, liability, costs, and damages arising from User’s use of any Third Party Services.
13. TERM / TERMINATION:
- This Agreement shall remain in full force and effect while User uses the Products and/or Services, or any aspect of the Site. User may terminate User’s use of the Services or the Site at any time and shall be responsible for the balance of all fees due during the membership term. Tenna may terminate or suspend any and all Services and access to the Site immediately, with (30) day notice, if User breaches any of the terms or conditions of this Agreement or any other document or agreement with Tenna, including without limitation payment terms in respect of the Products and/or Services. Upon termination of User’s account by User or by Tenna, User’s right to use the Services and access the Site and any Content will immediately cease, but User remains obligated to make payments in respect of such Products, Services, and Content for the remaining Term of the applicable Order(s) and any Addenda thereto. All provisions of this Agreement that, by their nature, should survive termination, shall survive termination, including provisions pertaining to indemnity and limitations of liability.
- Upon the expiration of the initial subscription term set forth in the Order (“Initial Term”), User’s subscription to the Services will automatically renew for an additional term up to the equal length of the Initial Term (“Renewal Terms”) and continue to renew on subsequent renewal anniversaries. Together the Initial Term and Renewal Terms shall be the “Term” hereunder. User shall receive a notification thirty (30) days prior to such automatic renewal, and User will be provided with the opportunity to decline the automatic renewal and have the Services, and access to the Site and any and all Content, terminated. Tenna retains the right to increase the pricing for the software and the Services upon the annual renewals. In addition, Tenna reserves the right to pass along any cost increases from the network providers or data hosting facilities supporting the provision of the Services by Tenna during the term of this Agreement.
- Tenna does not provide or otherwise make available to User data or information of any kind, including without limitation User-Identifiable Data, Tenna Data, Third Party-Provided User Data, or User Submissions, on or after termination or expiration of the Term. User’s access to and use of User-Identifiable Data, Tenna Data, Third Party-Provided User Data, and User Submissions during the Term is available only by means of User’s subscription to the Services,
14. MISCELLANEOUS: This Agreement and its terms and conditions, together with the policies and other documents detailed herein, constitute the entire agreement between User and Tenna in relation to User’s use of Tenna’s Site and Services and the purchase of Products from Tenna, and supersede all previous agreements in respect of User’s use of the Site and access to the Products and Services. 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. Tenna shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Tenna’s reasonable control. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub-licensable by User except with Tenna’s prior written consent. Tenna may transfer, assign or delegate obligations in connection with this Agreement and its rights and liabilities without the consent of any party. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. No agency, partnership, joint venture, or employment is created as a result of this Agreement and User does not have any authority of any kind to bind Tenna in any respect whatsoever. No person or entity not a party to this Agreement will be deemed to be a third-party beneficiary hereof.
15. FINANCED ACQUISITION OF PRODUCTS AND SERVICES: This section sets forth the terms and conditions applicable to Users which acquire Tenna products and services (“Financed Items”) through the assistance of a third party financing source (“Lender”) in which Lender makes payment to Tenna for Financed Items on behalf of User, collectively a “Finance Agreement”. A Finance Agreement is separate and distinct from User’s use of and access to the Tenna website and Tenna Products and Services. As between User and Lender, a Finance Agreement is NONCANCELABLE, ABSOLUTE AND UNCONDITIONAL, WITHOUT ANY ABATEMENT, SETOFF, CLAIM, COUNTERCLAIM, ADJUSTMENT, REDUCTION OR DEFENSE OF ANY KIND. For the avoidance of doubt, User shall continue to pay and perform its obligations under a Finance Agreement notwithstanding any breach by Tenna of the Financed Items or any other claim User may have against Tenna. A Finance Agreement is not subject to these Terms of Service or any other agreement between Tenna and User and shall be governed solely by the terms and conditions contained in the Finance Agreement, which represent the entire agreement with respect to the payment terms for the Financed Items and which supersedes any Order, quote, invoice, or other related document between Tenna and User. User cannot utilize credit memos as a form of payment for amounts payable under a Finance Agreement. User has selected the Financed Items and LENDER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND; LENDER IS NOT RESPONSIBLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES OR ANY INJURY TO USER OR ANY THIRD PARTY OR PROPERTY CAUSED BY THE FINANCED ITEMS. Lender may terminate access by User to the Financed Items should User breach the terms of the Financing Agreement.
16. DISPUTE RESOLUTION: This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to conflict of laws provisions thereof, and any disputes relating to this Agreement will be resolved by binding arbitration pursuant to Section 17 below. The provisions of the United Nations Convention for the International Sale of Goods are hereby waived and disclaimed. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THE PARTIES HERETO RELATING TO THE SUBJECT MATTER HEREOF.
17. ARBITRATION AND CLASS ACTION WAIVER; LIMITATIONS ON CLAIMS:
- Excluding claims for injunctive or other equitable relief, any dispute or controversy arising out of or relating to this Agreement, to the Site, to any Content, or to any Products and/or Services purchased through the Site or from Tenna, including without limitation, any and all disputes, claims (whether in tort, contract, statutory or otherwise) or disagreements concerning the existence, breach, interpretation, application or termination of this Agreement, shall be resolved by final and binding arbitration in accordance with the JAMS Inc. Comprehensive Arbitration Rules & Procedures then in effect. There shall be no right or authority for any claims to be arbitrated or litigated on a class action basis. The arbitration shall take place in Wilmington, Delaware or at the option of the party seeking relief, online, by telephone, or via written submissions alone, and be administered by JAMS. The arbitral tribunal (“Tribunal”) shall be composed of one arbitrator, who shall be independent and impartial. If the parties fail to agree on the appointment of the arbitrator within twenty (20) calendar days after the initiation of arbitration hereunder, JAMS shall appoint the arbitrator. The arbitration shall be conducted in the English language. The decision of the arbitrator will be final and binding on the parties. Judgment on any award(s) rendered by the arbitrator may be entered in any court having jurisdiction thereof. Nothing in this Section shall prevent either party from seeking immediate injunctive relief from any court of competent jurisdiction, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. The parties undertake to keep confidential all awards in their arbitration, together with all confidential information, all materials in the proceedings created for the purpose of the arbitration and all other documents produced by the other party in the proceedings and not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in legal proceedings before a court or other judicial authority. The arbitrator shall award all fees and expenses, including reasonable attorney’s fees, to the prevailing party.
- In connection with any claims User may have pertaining to the Site, the Content, the Products, or the Services, User agrees to assert such claims solely against Tenna and its successors and assigns and hereby waives and agrees to not assert such claims against Tenna’s parent, subsidiaries, or affiliates, or their respective officers, directors, employees, members, managers, agents, attorneys, investors, and successors and assigns.
18. CHANGES TO THIS AGREEMENT: Tenna reserves the right, at its sole discretion, to modify or replace any of the terms or conditions of this Agreement, including any referenced policies and other documents, at any time and without notice. It is User’s responsibility to check this Agreement periodically online for changes. Any changes will be effective only after the effective date of the change and will not affect any dispute arising prior to the effective date of the change. User’s continued use of the Products and Services following the posting of any changes to this Agreement online constitutes acceptance by User of those changes.
19. INTERPRETATION: The Section headings of this Agreement are for convenience of reference only, and shall not be considered or referred to in resolving questions of interpretation or construction. Whenever the Agreement so requires, the masculine gender includes the feminine and neuter, and the singular number includes the plural. The terms “hereof,” “herein,” “hereby,” “hereto,” and similar words refer to this entire Agreement and not to any particular Section, Exhibit or any other subdivision of this Agreement. The words “include” or “including” shall be deemed to be followed by “without limitation” or “but not limited to” whether or not they are followed by such phrases or words of like import. Whenever this Agreement refers to a number of “days,” such number shall refer to calendar days unless business days are specified. Any reference to a “month” or a “year” shall be construed as a reference to a calendar month or year. In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
20. NOT AUTHORIZED TO DO BUSINESS IN EVERY JURISDICTION: Tenna is not authorized to do business in every jurisdiction where the Site and Services may be accessed. Information published on this Site may contain references or cross-references to Products and Services that are not available in the User’s state or country.
21. COMPLIANCE WITH LAW; INDEMNITY:
- User shall fully comply with the provisions of all applicable laws, codes, ordinances, rules, regulations, standards, orders and decrees of any governmental or quasi-governmental entity having jurisdiction (collectively, “Legal Requirements”). User agrees to indemnify and hold harmless Tenna, its parent, subsidiaries, and affiliates, and their respective officers, directors, employees, members, managers, agents, attorneys, investors, and successors and assigns against any and all claims, demands, losses, costs, damages, liabilities, settlements, judgments, awards, causes of action, fines, expenses (including without limitation expert witness and attorneys’ fees), penalties, or liability directly or indirectly arising out of third party claims alleging
- User’s access to and/or use of the Site, the Content, the Products, or the Services,
- User’s violation of this Agreement,
- The infringement by User or any third party using User’s account of any intellectual property or other right of Tenna or any person or entity, and
- User’s failure to comply with all applicable Legal Requirements.
- This provision shall survive completion, termination or non-renewal of this Agreement and the purchase of any Products or Services and shall apply notwithstanding the existence of any insurance or rights, benefits or defenses under worker’s compensation or other laws or notwithstanding active or passive negligence on the part of the party being indemnified by User and regardless of whether User is at fault or has breached its obligations hereunder.
22. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT:
THE FOLLOWING INFORMATION IS PROVIDED EXCLUSIVELY FOR NOTIFYING TENNA THAT USER SUBMISSIONS MAY HAVE BEEN INFRINGED BY THIS SITE OR ANY CONTENT. ALL OTHER INQUIRIES WILL NOT RECEIVE A RESPONSE THROUGH THIS PROCESS.
Pursuant to Title 17, U.S. Code, Section 512(c)(2), written notification must be submitted to the following Designated Agent:
Name of Agent Designated to Receive Notification of Claimed Infringement: Kristen Olson, COO
Full Address of Designated Agent to Which Notification Should be Sent: 2045 Lincoln Highway, Edison, NJ 08817
Telephone Number of Designated Agent: (833) 50TENNA
Facsimile Number of Designated Agent:
To be effective, the Notification must include the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
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Tenna LLC, 2045 Lincoln Hwy., Edison, NJ 08817