TITAN ECHO® LICENSE AGREEMENT
BY EXECUTING this Titan Echo® License Agreement, you are warranting that you understand, agree to, and accept these Terms and Conditions contained herein (the “Terms”). You may not access Titan Echo® if you are, or are attempting to become, a direct competitor of TITAN, or for purposes of monitoring Titan Echo®’s availability, performance or functionality, or for any other benchmarking or competitive purposes.
Access to ECHO is on a month-to-month basis, automatically charged to your credit card on file. Throughout the duration of the Agreement, you agree to be bound by the terms of this License Agreement.
The term “TITAN” means TITAN Manufacturing Solutions, Inc, its affiliated companies, employees, agents, licensors and contractors. Titan Echo®, or "ECHO", means the online, web-based application and platform provided by TITAN via https://go.titanecho.com and/or other associated web pages (the “Site”). The term “User” means the individual who has executed this ECHO License Agreement with TITAN, and by so doing, agrees to use ECHO per this Agreement.
ECHO may provide links to other World Wide Web sites or resources. TITAN is not responsible for the privacy practices, or content, of these sites. Therefore, User agrees that TITAN is not responsible for the availability of such external sites or resources, nor liable for any content, advertising, products, or other materials on or available from such sites or resources. TITAN will not accept any responsibility for any loss or damage in whatever manner, howsoever caused, resulting from User’s disclosure to third parties of personal information.
For purposes of this Agreement, confidential information shall include details of ECHO’s functionality, User’s data, and any other information that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) was independently developed by the recipient.
Each party agrees: (a) to keep confidential all Confidential Information disclosed to it by the other party or by a third-party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights under this Agreement; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own, but in no event shall such manner of protection be performed with less than reasonable care; and (d) to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Agreement will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation.
Without limiting the above, TITAN and User shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Confidential Information. User is responsible for the confidentiality and use of its username, password and data. User agrees to immediately notify TITAN if User becomes aware of any loss or theft or unauthorized use of this information. User is also responsible for all electronic communications, including those containing business information, User data, and all other data of any kind contained within emails or otherwise entered electronically through ECHO.
User shall not (and shall not allow any third party to) copy, modify, reproduce, distribute, republish, display, post or transmit in any form or by any means, create a derivative work of, reverse engineer, or decompile any aspect of ECHO, or otherwise attempt to create unauthorized access to ECHO and/or modified versions of ECHO, including (without limitation) for the purpose of building a similar or competitive product or service. Redistribution or republication of any part of ECHO or its content is prohibited.
Notwithstanding anything contained herein to the contrary, User acknowledges and agrees that in the event of any breach of any of terms of this License Agreement, TITAN may suffer irreparable injuries for which there would be no adequate remedy at law. Accordingly, in such event, TITAN shall be entitled to seek a preliminary and final injunction without the necessity of posting any bond or undertaking in connection therewith to prevent any further breach of such provisions. Such a remedy is separate and apart from any other remedy TITAN may have under this Agreement.
Use of ECHO is further restricted as follows:
- User’s login may only be used by one person – a single login shared by multiple people is not permitted.
- ECHO may only be used for lawful purposes. Sending or solicitation of any material that violates any law is prohibited. This includes, but is not limited to, any material that is obscene, threatening, harassing, libelous, defamatory, unlawful, pornographic, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law or is otherwise inappropriate, or in any way violates intellectual property laws or a third party's intellectual property rights. User agrees to comply with all applicable local, state and federal regulations in connection with its use of ECHO, including without limitation those related to privacy and electronic communications.
- User shall not send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs which would interfere with or disrupt the integrity or performance of ECHO or the data contained therein.
- User shall not attempt to gain unauthorized access to ECHO or its related systems or networks. User must not modify, adapt or hack ECHO or modify another website so as to falsely imply that it is associated with ECHO.
- User shall not license, rent, sell, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make any aspect of ECHO available to any unauthorized user of ECHO, including but not limited to, "mirroring" or "framing" any part of ECHO, or creating Internet links to ECHO, which include log-in information, user names, passwords, and/or secure cookies.
- User shall not (and shall not allow any third party to) copy, modify, reproduce, distribute, republish, display, post or transmit in any form or by any means, create a derivative work of, reverse engineer, or decompile any aspect of ECHO, or otherwise attempt to create unauthorized access to ECHO and/or modified versions of ECHO, including (without limitation) for the purpose of building a similar or competitive product or service.
- User will not in any way express or imply that any opinions contained in User’s data are endorsed by TITAN.
- User agrees that unless explicitly stated otherwise, any new features that augment or enhance ECHO, and/or any new service(s) subsequently integrated into ECHO will be subject to these Terms. Continued use of ECHO after any such changes shall constitute User’s consent to such changes.
TITAN commits to provide 99.5% uptime with respect to ECHO, excluding regularly scheduled maintenance times. TITAN, in its sole discretion, may take ECHO down for unscheduled maintenance and, in that event, will attempt to notify User in advance in accordance with the Notice section set forth below. Such unscheduled maintenance will be counted against the uptime commitment.
TITAN does not warrant that ECHO will be uninterrupted, timely or error free, although it is provided to the best ability. TITAN shall not be liable for any failure to provide ECHO which is due to an event beyond TITAN’s reasonable control including but not limited to any Act of God, terrorism, war, Political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood or any other natural or manmade eventuality outside of TITAN’’s control, which causes downtime of ECHO, nor which could have been reasonably foreseen.
User agrees that TITAN’s system logs and other records shall be used for calculating any service level events. TITAN currently limits the amount of database storage to 10GB. Any User using database storage in excess of this limit will be charged additional fees. If User’s bandwidth usage exceeds 300 MB/month, or significantly exceeds the average bandwidth usage (as determined solely by TITAN) of other ECHO Users, TITAN reserves the right to immediately disable User’s account or throttle User’s file hosting until User can reduce its bandwidth consumption.
Third-Party Hardware and Software
User agrees to use third party software necessary for accessing ECHO, including, but not limited to, “browser” software that supports a data security protocol compatible with the protocol used by ECHO. User understands that TITAN also uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run ECHO. User understands that the technical processing and transmission of ECHO, including the data, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
TITAN does not guarantee compatibility with any third party hardware or software, and TITAN shall not be responsible for any changes or new development in third-party tools which might interrupt User’s current use or interaction with ECHO. In addition, TITAN is not responsible for any compromise of data transmitted across the Internet, computer networks or other telecommunications facilities which are not owned or operated by TITAN. TITAN is not responsible for any electronic communications and/or User data which are delayed, lost, altered, intercepted or stored without authorization during the transmission of any data whatsoever.
Rights in Developed Materials
User acknowledges and agrees that TITAN shall own all rights, title and interest in and to all intellectual property rights in ECHO. User understands and agrees that any suggestions, enhancement requests, feedback or recommendations provided to TITAN regarding ECHO, will be treated by TITAN as non-confidential, and may be used by TITAN for any purpose without acknowledgement or compensation to User. No rights are granted to User hereunder other than as expressly set forth herein. TITAN shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual right to use or incorporate into ECHO any suggestions, enhancement requests, recommendations or other feedback provided by User relating to the operation of ECHO.
The TITAN Echo® logo is a registered trademark of TITAN in the United States. TITAN Echo®, the Echo® logo, and other TITAN service marks, logos and product and service names are marks of TITAN (the “TITAN Marks”). User agrees not to display or use the TITAN Marks in any manner without TITAN’s express prior written permission.
Ownership of Data
Subject to the terms of this Agreement, TITAN agrees that, as between User and TITAN, User’s data shall at all times be considered the property of User. User exclusively owns all rights, title and interest in and to all of its data. TITAN may, but has no obligation to, remove data containing content that TITAN determines in its sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable.
User understands and agrees that it is TITAN’s practice to make tape backup copies of User’s data. User acknowledges and agrees that TITAN may store and maintain such data. Subject to these Terms, User grants TITAN a limited non-exclusive non-transferable license to copy, store, record, transmit, maintain, display, view, print, or otherwise use User’s data to the extent necessary to provide ECHO to User. User agrees that this license to store and maintain User’s data shall survive the termination of User’s access to ECHO for approximately one year for the sole purpose of storing backup User data at TITAN’s offsite storage facility.
User’s ECHO access is month-to-month, charged automatically against User's credit card on file, at the beginning of each monthly period. If processing the credit card is unsuccessful, User’s access shall be suspended until successful payment is rendered.
In the event that TITAN has reasonable grounds to believe that User has violated this Agreement, has otherwise acted unlawfully, or User has caused immediate, material and ongoing harm to TITAN or others through its use of ECHO, TITAN may immediately terminate this Agreement and access to ECHO. User acknowledges that termination may be effected without notice to User. User agrees that TITAN shall not be liable to User, or to any third party, for terminating User’s access to ECHO in conformance with this Section. Upon termination of ECHO, User shall have no rights to continue use of ECHO, but all of these Terms shall survive any termination of the ECHO.
Failure of TITAN to enforce any of the provisions set out in these Terms, or failure to exercise any option to terminate, shall not be construed as waiver of such provisions and shall not affect the validity of these Terms or any part thereof, or the right thereafter to enforce each and every provision.
Warranties and Disclaimers
TITAN warrants during the term of this Agreement that TITAN will use commercially reasonable efforts to safeguard and accurately maintain User data, utilizing at a minimum industry standard security and backup procedures. In the event of a breach of this provision, TITAN will use commercially reasonable efforts to correct or restore User’s data as quickly as possible.
ECHO is provided "as is" and "as available" without warranties of any kind either express or implied. User understands and agrees that it uses ECHO at its own discretion and risk and that it will be solely responsible for any damages to its computer system or loss of data that results from use of ECHO.
EXCEPT AS STATED ABOVE, TITAN DOES NOT REPRESENT THAT CUSTOMER’S USE OF ECHO WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT ECHO WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN ECHO AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE SYSTEM THAT MAKES ECHO AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY TITAN. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
Limitation of Liability
TITAN shall not be liable for any direct, special, incidental, consequential, punitive, reliance, or exemplary damages, or indirect damages of any type or kind that result from User's use of (or its inability to use) ECHO, unauthorized access to or alteration of User’s transmissions or data, any other matter relating to ECHO, TITAN’s breach of warranty, negligence, tort, or any other legal cause of action arising from or in connection with these Terms, even if TITAN has been advised of the possibility of such damages. In no event will TITAN’s total liability for all damages, losses, and causes of action arising out of or relating to the use of ECHO exceed the amount paid by User, if any, for ECHO during the ninety (90) days immediately preceding the day the act or omission occurred that gave rise to User’s claim.
User agrees that the consideration which TITAN is charging hereunder for ECHO does not include consideration for assumption by TITAN of the risk of User’s incidental or consequential damages. The essential purpose of this provision is to limit TITAN’s potential liability arising from use of ECHO. The parties acknowledge that the limitations set forth in this Section are integral to the amount of fees charged in connection with the license of ECHO and that, were TITAN to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher. User agrees that TITAN shall not be liable for any modification of ECHO, including price change, suspension or discontinuance of ECHO.
Indemnification; Hold Harmless
By using ECHO, User hereby indemnifies TITAN against any loss or damage, in whatever manner, howsoever caused. Without limiting the generality of the foregoing, User will indemnify, defend (at TITAN's option and election) and hold TITAN harmless from and against any claims, actions, proceedings, losses, damages and liabilities, including attorneys' fees (of attorneys selected by TITAN), arising out of or related to User's violation of any of these Terms. No settlement shall be entered into without TITAN's consent. TITAN reserves the right, at User’s cost and expense, to assume control of the defense and/or settlement of any matter for which User is required to indemnify TITAN and User agrees to provide TITAN with full cooperation in connection therewith.
TITAN will indemnify, defend and hold User harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against User which arise out of or result from TITAN’s violations of any of these Terms; provided that User (a) promptly gives TITAN notice of the claim, suit, action, or proceeding; (b) gives TITAN sole control of the defense and related settlement negotiations; and (c) provides TITAN with all reasonably available information and assistance necessary to perform TITAN’s obligations under this paragraph.
EXCEPT AS STATED ABOVE, TITAN DOES NOT PROVIDE ANY INDEMNIFICATION OR DEFENSE OF ANY KIND TO CUSTOMER FOR ITS OR ANY THIRD PARTY CLAIMS, ACTIONS, PROCEEDINGS, LOSSES, DAMAGES OR LIABILITIES ARISING OUT OF OR RELATED TO THE SERVICE.
Notification of Changes
TITAN reserves the right to change these Terms, including pricing for ECHO, from time to time as it sees fit. If there are any changes to these Terms, TITAN will post notice of such changes to the Site. User is therefore advised to re-read this statement on a regular basis. If User does not agree to any of such changes, User shall have the right to terminate ECHO by delivering email notice thereof to TITAN within thirty (30) days after the subject change(s) takes effect. If User does not timely deliver such written notice, then User shall have waived its right of termination with regard to the subject changes, and User’s continued use of the site shall conclusively confirm its acceptance of any such changes.
Relationship of the Parties; Jurisdiction; Attorney Fees
The parties are independent entities. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary, employment or any other legal relationship between the parties other than licensor and licensee. TITAN is not undertaking to provide legal advice to User, and no attorney-client relationship is being formed by these Terms. If User so chooses, User should hire counsel of its choice to review these Terms.
These Terms shall be governed by the laws of the State of Colorado, without giving effect to its conflicts of law principles. In the event of any dispute, the prevailing party shall be entitled to recover reasonable costs and attorney’s fees. User and TITAN agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Arapahoe, Colorado. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of ECHO must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign these Terms in their entirety, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of ECHO upon email notice to the assigning party. Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
If any of these terms are deemed invalid or unenforceable for any reason, then the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the invalid or unenforceable provision will be severed from these terms and the remaining terms will continue to apply.
By clicking on the Accept button below, User agrees to abide by all terms and conditions of the License Agreement with TITAN.