Introduction

The following terms of service ("Terms") govern all use of the Trunkery website and all content, services, and products available at or through the website (taken together, our "Services"). Our Services are offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, Trunkery’s Privacy Policy) and procedures that may be published from time to time by Trunkery (collectively, the "Agreement"). You agree that we may automatically upgrade our Services, and these Terms will apply to any upgrades.

Please read this Agreement carefully before accessing or using our Services. By accessing or using any part of our Services, you agree to become bound by the Terms of this Agreement. If you do not agree to all the Terms of this Agreement, then you may not access or use any of our Services. If these Terms are considered an offer by Trunkery, acceptance is expressly limited to these Terms.

Our Services are not directed to children. Access to and use of our Services is only for those over the age of 18. If you are younger than this, you may not register for or use our Services. Any person who registers as a user or provides their personal information to our Services represents that they are 18 years of age or older.

Use of our Services requires an account. You agree to provide us with complete and accurate information when you register for an account. You will be solely responsible and liable for any activity that occurs under your username. You are responsible for keeping your password secure.

Definitions

“Trunkery“ or “Us” means the Contracting Entity with which you are entering into this Agreement.

If you are a resident of the United States, your contracting entity is with Trunkery, Inc.

If you are a resident of the European Union, your contracting entity is with Trunkery, Inc.

If you are not a resident of the United States or the European Union, your contracting entity is with Trunkery, Inc.

“Merchant” or “You”, means the entity or person entering into this Agreement with Trunkery.

“Services”, means a software as a service consisting of system administration, system management, and system monitoring activities that Trunkery performs for Trunkery programs, and includes the right to use the Trunkery programs, support services for such Trunkery programs, as well as any other services provided by Trunkery, as defined in the ordering document

“Fees”, means the charges associated with the subscription portion of the service.

“Additional Fees”, means the charges for additional merchant services such as extra orders that exceed a plans monthly allowance.

“Service Capacity” means a plans usage quota such as included orders per month. Usage exceeding a plans Service Capacity results in Additional Fees.

“Website” means the Trunkery website used for sales, marketing and support.

“User-Generated Content” means content that either you or your users upload to Trunkery.

“SMS” means the sending of a message to a mobile device by Short Message System.

“Sensitive Data” means (i) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof), (ii) credit or debit card number (other than the truncated (last four digits) of a credit or debit card), (iii) employment, financial, genetic, biometric or health information, (iv) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation, (v) account passwords, (vi) date of birth, (vii) criminal history, (viii) mother’s maiden name, or (ix) any other information that falls within the definition of “special categories of data” under GDPR, or any other applicable law relating to privacy and data protection.

Service

Subject to the terms of this Agreement, Trunkery will use commercially reasonable efforts to provide Merchant the Services.

As part of the registration process, Merchant will need to provide a full legal name, address, a valid email address and any other requested information. Merchant will provide truthful and accurate information. Trunkery reserves the right to refuse registration of, or cancel an existing account at its sole discretion.

Subject to the terms hereof, Trunkery will provide Merchant with support services in accordance with the Trunkery Support Policy. Trunkery may refuse to provide the Service to anyone at its sole discretion, without notice.

Trunkery does not promise industry exclusivity and may provide our Service to your competitors. You acknowledge and agree that Trunkery employees, affiliates and contractors may also be Merchants and compete with you, although they may not use any of your confidential information to do so.

Trunkery will provide you with the service subject to these terms and conditions.

Restrictions and Responsibilities

Merchant will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Trunkery or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.

Further, Merchant may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

Merchant represents, covenants, and warrants that Merchant will use the Services only in compliance with Trunkery’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations.

Indemnification

Merchant hereby agrees to indemnify and hold harmless Trunkery against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Merchant’s use of Services.

Although Trunkery has no obligation to monitor Merchant’s use of the Services, Trunkery may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

Merchant shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Merchant shall also be responsible for maintaining the security of the Equipment, Merchant account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Merchant account or the Equipment with or without Merchant’s knowledge or consent.

You are responsible for keeping your Account secure while you use our Service. We offer tools such as two-factor authentication to help you maintain your Account's security, but the content of your Account and its security are up to you.

Acceptable Use

Your use of the Website and Service must not violate any applicable laws, including copyright or trademark laws, export control laws, or other laws in your jurisdiction. You are responsible for making sure that your use of the Service is in compliance with laws and any applicable regulations.

You agree that you will not under any circumstances upload, post, host, or transmit any content that is not in compliance with the Trunkery Acceptable Use Policy.

You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without Trunkery’s express written permission.

Google Cloud Platform Acceptable Usage Policy

You will only use the Services in compliance with this agreement and the Google Cloud Platform Acceptable Use Policy, located at https://cloud.google.com/terms/aup.

Messagebird Terms and Conditions

Trunkery gives you the ability to send communication to your customers by short message service (SMS). You will only use the SMS Service in compliance with this agreement, Messagebirds Terms and Conditions (https://www.messagebird.com/en/legal/terms/), and the laws of the jurisdiction from which you send messages, and in which your messages are received.

Sendgrid Terms of Service

Trunkery gives you the ability to send communication to your customers by electronic message (Email). You will only use the Service in compliance with this agreement, Sendgrid’s Terms of Service (https://sendgrid.com/policies/tos/), and the laws of the jurisdiction from which you send messages, and in which your messages are received.

Excessive Bandwidth or Storage Usage

If we determine your bandwidth or storage usage to be significantly excessive in relation to other Trunkery customers, we reserve the right to suspend your Account or throttle your Service until you can reduce your bandwidth or storage consumption.

Responsibility for Content

You may create or upload Content while using the Service. You are solely responsible for the content of, and for any harm resulting from, any Content that you post, upload, link to or otherwise make available via the Service, regardless of the form of that Content. We are not responsible for any public display or misuse of your Content.

We do not pre-screen Content, but we have the right (though not the obligation) to refuse or remove any Content that, in our sole discretion, violates any Trunkery terms or policies.

Ownership of Content, Right to Post, and License Grants

You retain ownership of and responsibility for Your Content. If you're posting anything you did not create yourself or do not own the rights to, you agree that you are responsible for any Content you post; that you will only submit Content that you have the right to post; and that you will fully comply with any third party licenses relating to Content you post.

Because you retain ownership of and responsibility for Your Content, we need you to grant us — and other Trunkery Users — certain legal permissions. These license grants apply to Your Content. You understand that you will not receive any payment for any of the rights granted in. The licenses you grant to us will end when you remove Your Content from our servers.

License Grant to Us

We need the legal right to do things like host Your Content, publish it, and share it. You grant us and our legal successors the right to store, parse, and display Your Content, and make incidental copies as necessary to render the Website and provide the Service. This includes the right to do things like copy it to our database and make backups; show it to you and other users; parse it into a search index or otherwise analyze it on our servers; share it with other users; and perform it, in case Your Content is something like music or video. This license does not grant Trunkery the right to sell Your Content or otherwise distribute or use it outside of our provision of the Service.

You retain all moral rights to Your Content that you upload, publish, or submit to any part of the Service, including the rights of integrity and attribution. However, you waive these rights and agree not to assert them against us, to enable us to reasonably exercise the rights granted to us under this agreement, but not otherwise.

To the extent this agreement is not enforceable by applicable law, you grant Trunkery the rights we need to use Your Content without attribution and to make reasonable adaptations of Your Content as necessary to render the Website and provide the Service.

API Terms

Abuse or excessively frequent requests to Trunkery via the API may result in the temporary or permanent suspension of your Account's access to the API. Trunkery, in our sole discretion, will determine abuse or excessive usage of the API. We will make a reasonable attempt to warn you via email prior to suspension.

You may not share API tokens to exceed Trunkery’s rate limitations. You may not use the API to download data or Content from Trunkery for spamming purposes.

All use of the Trunkery API is subject to these Terms of Service and the Trunkery Privacy Statement.

Trunkery may offer subscription-based access to our API for those Users who require high-throughput access or access that would result in resale of Trunkery’s Service.

Confidentiality & Proprietary Rights

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 Trunkery includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Merchant includes non-public data provided by Merchant to Trunkery to enable the provision of the Services (“Merchant Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall 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.

Merchant shall own all right, title and interest in and to the Merchant Data. Trunkery shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with support, and (c) all intellectual property rights related to any of the foregoing.

Notwithstanding anything to the contrary, Trunkery shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Merchant Data and data derived therefrom), and Trunkery will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Trunkery offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

Payment of Fees

Our pricing and payment terms are available at trunkery.com/pricing. If you agree to a subscription price, that will remain your price for the duration of the payment term; however, prices are subject to change at the end of a payment term.

If Merchant’s use of the Services exceeds the Service Capacity or otherwise requires the payment of Additional Fees (per the terms of this Agreement), Merchant shall be billed for such usage and Merchant agrees to pay the Additional Fees in the manner provided herein.

All Fees and Additional Fees are in United States Dollars and all payments shall be made in United States Currency.

Merchant must keep on file a valid credit card. Trunkery will continue to charge the Merchant’s credit card payment instrument for all Fees and Additional Fees until Services are terminated and all outstanding amounts have been paid in full.

• If you change from a monthly billing plan to a yearly billing plan, Trunkery will bill you for a full year immediately and credit the prorated amount remaining on your then current monthly billing plan.
• If you upgrade to a higher level of service, we will bill you for the upgraded plan immediately.
• You may change your level of service at any time by choosing ‘Change Plan’ located in your Billing settings. If you choose to downgrade your Account, you may lose access to Content, features, or capacity of your Account. You may be prevented from downgrading until you reduce your usage to meet the next plans restrictions.
• For monthly or yearly payment plans, the Service is billed in advance on a monthly or yearly basis respectively and is non-refundable. There will be no refunds or credits for partial months of service, downgrade refunds, or refunds for months unused with an open Account. In order to treat everyone equally, no exceptions will be made.
• Additional Fees are charged from time to time at Trunkery’s discretion.

By agreeing to these Terms, you are giving us permission to charge your on-file credit card or other approved methods of payment for fees that you authorize for Trunkery.

If Trunkery is not able to successfully charge Merchants credit card for Fees or Additional Fees, Trunkery will continue to try the payment instrument for up to 4 times. If Trunkery’s final attempt to charge the payment instrument is unsuccessful, Trunkery may suspend or revoke access to the Service. The Merchants service will be reactivated and unsuspended once all outstanding Fees and Additional Fees have been paid in full. Merchant will not have access to the Service or their account during the suspension. If Fees remain unpaid for 60 days following the date of suspension, Trunkery may terminate the Merchants service. Trunkery may delete your data after 60 days of non-payment, however is under no obligation to do so.

If Merchant believes that Trunkery has billed Merchant incorrectly, Merchant must contact Trunkery no later than 14 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 Trunkery’s support team.

Trunkery may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Trunkery thirty (30) days after the mailing date of the invoice. 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 termination of Service.

Taxes

To the extent permitted by law, or unless explicitly stated otherwise, all Fees are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future (“Taxes”). You are responsible for payment of all applicable Taxes relating to your use of our Services, your payments, or your purchases. If we are obligated to pay or collect Taxes on the Fees you've paid or will pay, you are responsible for such Taxes, and we may collect payment for such Taxes.

You are responsible for all taxes and fees associated with your ecommerce activities. You must collect, report, and/or pay the correct amounts to the appropriate authorities, if applicable, and if needed, inform your customers about any taxes they may be required to pay and issue appropriate invoices. While some features allow you to include sales taxes or Value Added Taxes in transactions, you should not rely solely on these features. We make our best efforts to keep our content and documents up-to-date, but because tax law changes rapidly, we cannot guarantee that all the services are completely current. Tax laws differ from jurisdiction to jurisdiction and may be subject to different interpretations by different authorities. We recommend you consult an appropriate tax professional for your specific tax situation.

Payment

If your payment fails or otherwise are not paid for on time, we may immediately cancel or revoke your access to the Service. If you contact your bank or credit card to decline or reverse the charge for Services, we may revoke your access to our Services in general and terminate this agreement at our discretion.

Automatic Renewal

To ensure uninterrupted service, recurring Services are automatically renewed. This means that unless you cancel a Service before the end of the applicable subscription period, it will automatically renew, and you authorize us to invoice you or use any payment instrument we have on record for you to collect the then-applicable subscription fee (as well as any Taxes). Your Services are renewed for the same interval of time. For example, if you purchase an annual plan, you will be charged each year.

While you may cancel a Service at any time, Trunkery does not issue refunds.

Fee Changes

We may change our Fees or Additional Fees at any time. When applicable, we may give you advance notice of the fee changes. If you don't agree with the fee changes, you can cancel your Service.

Cancelation

It is your responsibility to properly cancel your Service with Trunkery. You can cancel your Service at any time by going to the Billing page in the Billing section of Trunkery. The screen provides a simple cancellation link. We are not able to cancel Accounts in response to an email or phone request.

In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Merchant will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this 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.

Warranty and Disclaimer

Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Trunkery or by third-party providers, or because of other causes beyond Trunkery’s reasonable control, but Trunkery shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, TRUNKERY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES SERVICES ARE PROVIDED “AS IS” AND TRUNKERY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

Feedback and Pre-Release Services

If Merchant provides Trunkery with ideas, opinions, advice, comments, recommendations or suggestions relating to the Services (together “Feedback”) all Intellectual Property Rights in that feedback, and anything created as a result of that feedback including new material, enhancements, modifications or derivative works, are owned solely by the Trunkery.

Merchant grants to Trunkery a worldwide, non-exclusive, royalty-free, fully-paid, perpetual, irrevocable, sub-licensable (through multiple tiers of sublicensees), assignable, and transferable license to use, reproduce, copy, modify, adapt, arrange, translate, create derivative works of, and publicly display, perform and communicate such Feedback.

We may also provide you access to services identified as “beta” or pre-release services. You understand that these services are still in development, may contain bugs or errors, may be feature incomplete, may materially change prior to a full commercial launch, or may never be released commercially. We provide beta services AS IS, and without warranty of any kind, and your use of, or reliance on beta services is at your own risk.

Changes

Trunkery is constantly updating their Services, and that means sometimes we have to change the legal terms under which our Services are offered. If we make changes that are material, we will let you know by posting on one of our blogs, or by sending you an email or other communication before the changes take effect. The notice will designate a reasonable period of time after which the new terms will take effect. If you disagree with our changes, then you should stop using our Services within the designated notice period. Your continued use of our Services will be subject to the new terms. However, any dispute that arose before the changes shall be governed by the Terms that were in place when the dispute arose.

Limitation of Liability

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, TRUNKERY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OF PROFITS, AND LOST REVENUE; (C) FOR ANY MATTER BEYOND TRUNKERY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY MERCHANT TO TRUNKERY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 6 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT TRUNKERY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Payments

Payment processing services for Merchants on Trunkery are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these Terms or continuing to operate as a Merchant on Trunkery, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Trunkery enabling payment processing services through Stripe, you agree to provide Trunkery accurate and complete information about you and your business, and you authorize Trunkery to share it and transaction information related to your use of the payment processing services provided by Stripe.

Anti-Money Laundering, Prevention of Global Terrorism and Financial Crimes

If Trunkery knows, suspects, or has reason to suspect financial crimes, fraud, terrorism or money laundering activity or behavior, actual or alleged, Trunkery may immediately terminate your Service at its sole discretion, without providing notice. Merchant will ensure compliance with the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), the Currency and Foreign Transactions Reporting Act of 1970, as amended, and the applicable anti-money laundering statutes, laws and regulations of all jurisdictions where the Merchant and its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any applicable governmental agency (collectively, the Anti-Money Laundering Laws), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Merchant or any of its subsidiaries and to the Merchant’s knowledge, its affiliates, with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Merchant, threatened.

Know Your Customer (KYC)

Merchant shall provide all such documentation and other evidence as is requested in order for Trunkery to carry out and be satisfied with the results of all necessary know your customer or other checks required to be carried out under any applicable law or legislation, in relation to the identity of Merchant and their members of the board of directors, officers, shareholders and ultimate beneficial owners. Trunkery may cross reference or verify any provided information and documentation using electronic databases, publicly available or otherwise. All such checks and requirements shall be satisfactory to Trunkery in its sole and absolute discretion.

Restricted Businesses

You may not use the Services to enable any person (including you) to benefit from any activities identified as a restricted business or activity (collectively, “Restricted Businesses”). Restricted Businesses include use of the Services in or for the benefit of a country, organization, entity, or person embargoed or blocked by any government, including those on sanctions lists identified by the United States Office of Foreign Asset Control (OFAC).

Severability

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

No assignment by you

This Agreement is not assignable, transferable or sub-licensable by Merchant except with Trunkery’s prior written consent.

Sensitive Data

You will not at any time upload Sensitive Data to Trunkery and Trunkery will have no liability whatsoever for Sensitive Data, whether in connection with a security incident or otherwise.

Trunkery assignment

Trunkery may transfer and assign any of its rights and obligations under this Agreement without consent.

Publicity Rights

Trunkery may identify you as a customer in marketing material and as such shall have the non-exclusive right and license to use your logo, trademark or service mark to promote our Service. You may revoke this permission by notifying us in writing to stop using your organization's name in our promotional materials. However, Trunkery will have no obligation to remove or recall any prior use or distribution of the promotional materials.

No advice

No oral or written information or advice or communications provided by Trunkery or any of its employees will constitute personal, legal, tax or financial advice or create a warranty, condition or representation of any kind.

Entire agreement

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, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.

No Waiver

If Trunkery fails or delays in exercising any right, power or remedy or to take action against any breaches of this Agreement, it does not mean that it waives its right at a later time to enforce the same.

No Agency

No agency, partnership, joint venture, or employment is created as a result of this Agreement and Merchant does not have any authority of any kind to bind Trunkery in any respect whatsoever.

Intellectual Property

"Trunkery", “trunkery.com” and all logos related to Trunkery, are either trademarks or registered trademarks of Trunkery or its licensors. You may not copy, imitate or use them without Trunkery’s prior written consent. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Trunkery. You may not copy, imitate, or use them without our prior written consent. All right, title and interest in and to the Trunkery website, any content thereon, the Services, the technology related to the Services, and any and all technology and any content created or derived from any of the foregoing, is the exclusive property of Trunkery and its licensors.

Misleading Brand Conduct

You agree to not purchase search engine advertising, register domain names or register social media usernames that use Trunkery or Trunkery trademarks, variations, transliterations or misspellings.

Class action waiver

The parties waive any right to assert any claims against the other party as a representative or member in any class or representative action, except where such waiver is prohibited by law or deemed by a court of law to be against public policy. To the extent either party is permitted by law or court of law to proceed with a class or representative action against the other, the parties agree that: (i) the prevailing party shall not be entitled to recover attorneys' fees or costs associated with pursuing the class or representative action (not withstanding any other provision in this agreement); and (ii) the party who initiates or participates as a member of the class will not submit a claim or otherwise participate in any recovery secured through the class or representative action.

Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis and not in a class or representative action. Neither party to this Agreement will seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.

Improperly Filed Litigation

All Claims you bring against Trunkery or in respect of the Services must be resolved in accordance with this Agreement. All Claims filed or brought contrary to this Agreement shall be considered improperly filed a breach of this Agreement. Should you file a Claim contrary to this Agreement, Trunkery may recover attorney fees and costs (including in-house attorneys and paralegals), provided that Trunkery has notified you in writing of the improperly filed Claim, and you have failed to promptly withdraw the Claim.

Section Headings

Throughout this Agreement, each section includes titles and brief summaries of the following terms and conditions. These section titles and brief summaries are not legally binding.

Force Majeure

Trunkery shall not be responsible or liable to you, your customers or any third-party, in any way for failure or delay in performing its obligations under these Terms, when such failure or delay is directly or indirectly due to an act of God, war, threat of war, war-like conditions, hostilities, sanctions, mobilization, blockade, embargo, detention, revolution, riot, looting, striking, lockout, accident, fire, explosion, flood, inability to obtain fuel, power, labor, failure of carrier or utilities, failure of internet connectivity, breakage of machinery or apparatus, failure of service provider, government order or regulations, or any other cause beyond its reasonable control.

Notices

All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

Governing Law

This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Delaware, exclusive of conflict or choice of law rules. Each party hereby waives any right to jury trial in connection with any Dispute in any way arising out of or related to this Agreement.

Language

If you decide to use our Services, you expressly agree that the agreement between you and us and any associated documents will be in the English language.

Dispute Resolution

The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this Agreement. Any party may give the other party written notice of any dispute not resolved in the normal course of business. Within 15 days after delivery of the notice, the receiving party shall submit to the other a written response. The notice and response shall include with reasonable particularity (a) a statement of each party’s position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within 30 days after delivery of the notice, the executives of both parties shall meet at a mutually acceptable time and place.

Unless otherwise agreed in writing by the negotiating parties, the above-described negotiation shall end at the close of the first meeting of executives described above (“First Meeting”). Such closure shall not preclude continuing or later negotiations, if desired.

All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.

For any Claim (excluding Claims for injunctive or other equitable relief), the party requesting relief may elect to resolve the Dispute in a cost-effective manner through binding non-appearance-based arbitration. If a party elects arbitration, that party will initiate such arbitration through an established alternative dispute resolution (ADR) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

Support

Trunkery support is provided within the scope of our Support Policy. Trunkery only offers support via email. Trunkery does not offer telephone support. Trunkery is under no obligation but may provide support through other communication channels including telephone or live chat.

Exclusion of Convention and UCITA

The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. The Uniform Computer Information Transactions Act (UCITA) will not apply to these Terms regardless of when or where adopted.