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Terms Of Use

1. SCOPE

Timmins Software Corporation (d/b/a Mitrend®) created and maintains the Mitrend.com website and may add other websites from time to time to provide as a means of providing you (You or Your) and the company or organization for which you perform IT services (the Company) with assessment reports (the Mitrend Reports) regarding the functioning of the computer system, including the storage components thereof, of the Customer. You represent and warrant that You have the authority to act on behalf of and bind Your Company to the terms of this Terms of Use Agreement (TOU) and everywhere in this TOU that refers to You or Your, shall also include Your Company. The Mitrend Services (as defined below) are provided by Mitrend independently of any Mitrend partners, third parties, Dell EMC or any of their affiliates.

2. ACCEPTANCE OF TERMS

Your access and use of the Mitrend Reports and any other assessment services provided by means of Mitrend.com (collectively, the Mitrend Services ), are subject to this TOU. Additionally, Your use of the Mitrend Reports, and Services may also be subject to disclaimers, legal notices, click-through agreements, or other legal agreements (any, Additional Legal Terms) which may be posted on Mitrend.com where applicable. This TOU and the applicable Additional Legal Terms (together Controlling Terms) form a legally binding agreement between You and Mitrend regarding Your access and use of the Mitrend Reports and Services. Whenever there is a conflict between the terms in this TOU and the Additional Legal Terms, the Additional Legal Terms shall control. By accessing or using Mitrend.com, You accept and agree to abide by the terms of this TOU. If You do not agree to the terms of this TOU, You must not attempt to access or use Mitrend.com.

3. CHANGES AND NOTICES

Mitrend reserves the right to make changes to this TOU and to modify, change or discontinue any part or all of Mitrend.com and/or the Services at any time. Mitrend will notify You of any changes to this TOU when You visit the Mitrend.com, or via email, or by providing You with information on such update and updating the TOU which can be viewed via the Terms of Use link. Mitrend may make changes to its service offerings or Mitrend.com at any time without notice. Some service restrictions may apply to certain users. Mitrend will notify You shortly after your registration if your Company is affected by these restrictions.

THE MOST CURRENT VERSION OF THIS TOU CAN BE ACCESSED BY CLICKING TERMS OF USE LINK WHICH IS INCLUDED ON THE WELCOME SCREEN OF MITREND.COM AND ON THE MENU IN THE TOP RIGHT HAND CORNER OF EACH PAGE OF THE WEBSITE .

4. RIGHTS IN DATA AND CONFIDENTIAL INFORMATION

4.A DATA OWNERSHIP, USE AND RETENTION

The data concerning the Company’s IT infrastructure that we collect in order to generate the Mitrend Reports is the Company’s. You hereby grant Mitrend a license in and to that data for the purpose of creating and delivering the Mitrend Reports and providing the Mitrend Services. Mitrend will not share or sell this data, but reserves the right to retain it indefinitely in anonymized form for the purpose of producing trend analysis and other aggregated studies and reports. Mitrend may retain the Company’s data in its original form for up to 30 days and may retain metadata about these data uploads until the Company terminates its account. Upon termination, we will remove the applicable account metadata and information, except for required billing information. It may take up to 30 days to fully purge data from our systems, as we maintain backups and other copies of information.

4.B MITREND CONFIDENTIAL INFORMATION

You agree not to reproduce any Mitrend Confidential Information to which you are provided access through the use of Mitrend.com in any form except as authorized at the time of disclosure. Any reproduction of Mitrend Confidential Information shall remain the property of Mitrend and shall contain any and all confidential or proprietary notices or legends which appear on the original. You agree to (a) take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) to use Confidential Information solely as authorized at the time of disclosure and (d) not to disclose any Confidential Information to any party without the prior written consent of Mitrend. You do not acquire any rights in Confidential Information except the limited rights as described above. In no event shall You use Confidential Information to create, enhance, modify, rent, lease, loan, sell, distribute or create derivative works based on the Reports or Services, or compete with Mitrend in whole or in part. As used herein, Confidential Information shall mean all trade secrets and other information or Services which Mitrend or third parties protect against unrestricted disclosure to others which is either labeled Confidential, accessed through a restricted area of Mitrend.com, pursuant to downloads, or reasonably identifiable as confidential based on the type of information and the manner of its disclosure, and reasonable steps means those steps You and/or Your Company take to protect Your own similar Confidential Information, which shall not be less than a reasonable standard of care.

Your confidentiality obligations hereunder shall survive termination of Your access rights to Mitrend.com. Upon any termination of Your account, or Mitrend’s written request, You must cease use of Confidential Information and/or Mitrend’s Services and return or destroy all Confidential Information in Your possession or control.

4.C PRIVACY

YOU AGREE TO THE TERMS OF THE MITREND PRIVACY POLICY FOUND BY CLICKING ON PRIVACY IN THIS SENTENCE OR AT THE BOTTOM OF THE MITREND.COM HOME PAGE.

Mitrend® is a registered trademark of Timmins Software Corporation.
You agree that You will not use Mitrend.com to infringe the Intellectual Property Rights of Mitrend or others in any way. You must not remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notice of ownership from any originals or copies of any Reports accessed using Mitrend.com. As used herein, Intellectual Property Rights means patents of any type, design rights, utility models or other similar invention rights, copyrights, trademarks, service marks, trade secret or confidentiality rights, and any other intangible property rights including applications for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired.

Mitrend.com may contain links to external Web sites and information provided on such external websites by Mitrend partners and third-party service providers. Mitrend shall not be responsible for the contents of any linked Web site, or any changes or updates to such sites. Mitrend shall not be directly or indirectly responsible or liable for any damage or loss caused or alleged to be caused by or in connection with Your use of or reliance on any content, goods or services available on or through any such linked Web site.

7. INTELLECTUAL PROPERTY RIGHTS; LICENSE GRANTS

You are permitted to access Mitrend.com and use the Mitrend Reports and Services solely for your Company’s internal business purposes unless such rights are terminated or revoked as provided below.

All Intellectual Proprietary Rights to the software used to collect data about the Company’s IT infrastructure (the Mitrend Software) and to the Mitrend Services belongs to Mitrend and its licensors. Nothing in this TOU shall be deemed to give You or the Company the right to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any Mitrend works, including the Mitrend Software and look and feel of Mitrend.com for any reason unless otherwise expressly permitted by law. You hereby agree to assign and do assign to Mitrend any modifications or derivative works of any Mitrend Software made by You in contravention of this limitation.

8. TERMINATION

In the event You are in material breach of the Controlling Terms, Mitrend may, at its sole discretion refuse You any current or future use of Mitrend.com. Mitrend shall not be liable to You or any third party for any termination or change to Mitrend.com and/or the Services. If You send or upload data that is confidential or proprietary of a third party without that third party's permission, or, if You transmit or upload data that is intended to infect, corrupt or otherwise disrupt the operation of Mitrend.com, Mitrend may terminate your access to Mitrend.com.

You agree not to use Mitrend.com to:

9. INDEMNITY

You agree to indemnify and hold Mitrend, its affiliates, subsidiaries, officers, agents, partners, employees, and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Your Reports or Your usage of the Mitrend.com or Services.

10. EXCLUSION OF WARRANTIES

Mitrend.com Reports, and Services are being provided to at no cost to You and on an AS IS basis. Mitrend does not guarantee or warrant any features or qualities of the Mitrend.com, Reports or Services or give any undertaking with regard to any other quality. Statements and explanations to Mitrend.com Reports, Software or Services in promotional material or on Mitrend.com and in the documentation are made for explanatory purposes only; they are not meant to constitute any guarantee or warranty of certain features.

Mitrend does not represent or endorse the accuracy or reliability of any information provided by its business partners as a result of its review of the Reports.

11. LIMITATION OF LIABILITY

TO THE EXTENT ALLOWABLE BY APPLICABLE LAW, MITREND, AND IT / THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, AND LICENSORS ARE NOT LIABLE TO ANY USER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR RESULTING FROM: (i) THE USE OR THE INABILITY TO USE MITREND.COM OR THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES ARISING OUT OF YOUR USE OR INABILITY TO USE ANY MITREND REPORTS OR SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (Iv) ANY OTHER MATTER RELATING TO THE REPORTS OR SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THESE LIMITATIONS SHALL NOT APPLY IN CASE OF INTENTIONAL MISCONDUCT AND IN CASE OF ANY STATUTORY LIABILITY FOR PERSONAL INJURY AND DEFECTIVE PRODUCTS.

12. APPLICABLE LAW; WAIVER AND SEVERABILITY

This site is created and controlled by Mitrend in Massachusetts, USA. Except as set forth in Section 15 B., the laws of Massachusetts and the United States will govern this TOU without giving effect to any principles of conflicts of laws. You also agree to comply with all laws from the country in which You reside that are applicable to the transmission of data on the Internet, including, but, not limited to laws governing the use of encryption and laws governing the transmission of data across international boundaries, into prohibited countries, and containing personally identifiable information. Any legal action or proceeding relating to your access to, or use of, Mitrend.com or Reports or Services shall be instituted in a state or federal court in Boston, Massachusetts.. You and Your Company agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding.

The failure of Mitrend to exercise or enforce any right or provision of this TOU shall not constitute a waiver of such right or provision. To the extent that any provision in this TOU shall be found to be unenforceable, such provision shall be modified in such a manner so as to make this TOU as modified, legal and enforceable under applicable laws and the balance of the provisions of this TOU shall not be affected thereby.