Terms of Use

Updated: March 15, 2024

  1. INTRODUCTION

These Terms of Use are a binding Agreement.  These Terms of Use (“Terms”) apply to any public website of Trustwell, including trustwell.com and esha.com. In these Terms, when we refer to we, us or our, we mean Trustwell. When we refer to you or your, we mean you, the person accessing the website.

PLEASE READ THESE TERMS CAREFULLY: THEY ARE A BINDING AGREEMENT BETWEEN YOU AND US. IF YOU DO NOT AGREE WITH THE TERMS, YOU MUST NOT USE THE WEBSITE. BY USING THE WEBSITE YOU AGREE TO THE TERMS AND ACKNOWLEDGE OUR PRIVACY NOTICE.

Minimum Age. Our public websites are limited to individuals who are 18 years of age or older.

Arbitration Notice. Please note that, as described in Section 8 below, disputes between you and Trustwell concerning these terms that cannot be resolved informally shall be resolved by binding arbitration.

  1. CHANGES TO THE TERMS

We may modify the Terms.  We reserve the right to change these Terms and such changes will become effective immediately when posted. IF YOU DO NOT AGREE WITH THE CHANGE OF TERMS, YOU MUST STOP USING THE WEBSITE. If you continue to use the website after the change is posted, you are indicating your agreement to the change. We expect you to check this page frequently so you are aware of any changes. Notwithstanding the foregoing, any changes to legal dispute resolution provisions set out in Section 8 will not apply to any disputes for which actual notice has been given on or before the date the change is posted on the website.

This version of the Terms is effective as of March 15, 2024.

  1. PROHIBITED USES

Conditions to Access and Use.  Your use of the website is conditioned on your compliance with these Terms. You agree to use the website in accordance with the Terms and applicable law, which means all applicable local, state, national, and foreign laws. You shall not:

  • attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the website, the server on which the website is stored, or any server, computer, or database connected to the website;
  • use manual process, automatic device or application or extraction tool to access, monitor, use, download, retrieve, index, extract, scrape, or data mine;
  • use any device, software, or routine that interferes with the proper working of the website;
  • modify, distribute, transmit, display, perform or create derivative works from or based on the website or any component thereof;
  • copy, frame, mirror, or in any way reproduce or circumvent the navigational structure or presentation of the website or any component thereof or otherwise defeat, bypass, or circumvent any other protections of our intellectual property rights in the website;
  • bypass or breach any security device or protection used by the website;
  • input, upload, transmit, activate or otherwise provide to or through the website any malware or harmful code or virus;
  • damage, destroy, deface, disrupt, disable, impair, interfere with, or otherwise disrupt, impede, overburden or harm in any manner the website;
  • remove, delete, alter, or obscure any trademarks, copyright and attribution notices, warranties, or disclaimers, or any other intellectual property rights notices from the website or any component thereof;
  • access or use the website in any manner or for any purpose or that infringes, misappropriates, or otherwise violates intellectual property rights or other rights of any person or entity, or that otherwise violates any applicable law;
  • generate, upload, share user materials that are illegal, defamatory, obscene, promote bigotry, racism, misogyny, religious or ethnic hatred or are otherwise libelous, unlawful, or tortious;
  • create a false identity to mislead any person as to the identity or origin of any transmission or communication via the website;
  • publish any personal or confidential information belonging to any person or entity without obtaining consent from such person or entity;
  1. USER MATERIALS AND CONTRIBUTIONS

You are responsible for any materials you upload. Our website may contain features that allow you to submit or post materials or contributions on or through the website. Any such materials or contributions will be considered non-proprietary. By providing them, you grant us and our affiliates, subject to any limitations set out in our Privacy Notice, the right to use, copy, modify, display, distribute, and otherwise disclose to third parties any such materials.

You represent and warrant that:

  • You have all necessary legal rights to the materials and contributions and providing the materials to us does not violate any law or rights of any individual.
  • Your materials and contributions do and will comply with these Terms.

You understand and acknowledge that you are responsible for any materials and contributions you submit, and that you, not us, have full responsibility for their legality, reliability, accuracy, and appropriateness.

  1. PROPRIETARY RIGHTS

Our Intellectual Property. We own all right, title, and interest, including all intellectual property rights in the website including, but not limited to software, data, graphics, images, logos, audio, video, design, and any and all other features and elements, in any media or format, that are or may in the future become available through the site, all of which are protected by United States and international intellectual property laws and other applicable laws.

You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material posted on our website.

You may not use our, or our affiliates’, trade names, trademarks and service marks, alone or in connection with any other words or logos without our prior written consent.

All rights not expressly granted to you are reserved by us. There are no implied licenses to the website or its components.

  1. OUR LIABILITY

Liabilities that we cannot Limit. Nothing in these Terms excludes or limits our liability where it would be unlawful to do so, and nothing in these Terms affects any of your statutory rights.

What we Cannot Guarantee. Some jurisdictions do not allow the exclusion of implied warranties, therefore some of the following exclusions may not apply to you. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THESE TERMS, (A) WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, SPECIFICALLY DISCLAIM ANY AND ALL WARRANTIES

AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE (WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED), WARRANTIES OF TITLE AND NON-INFRINGEMENT, ANY IMPLIED INDEMNIFICATION OBLIGATIONS, OR OTHER WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, WITH RESPECT TO ANY ASPECTS OF THE

WEBSITE AND ANY COMPONENTS THEREOF OR ITS USE IN CONJUNCTION WITH USER MATERIALS OR THE OUTPUT OR RESULTS OBTAINED FROM SUCH USE, ANY DECISIONS MADE OR ACTIONS TAKEN IN RELIANCE THEREUPON OR AS TO THE PERFORMANCE THEREOF (WHETHER PERFORMED IN WHOLE, PART OR NOT AT ALL); (B) WE DO NOT GUARANTEE THE AVAILABILITY, ADEQUACY, ACCURACY, TIMELINESS, COMPLETENESS, OR SECURITY OF THE WEBSITE OR ANY COMPONENTS OR OUTPUT THEREOF OR THAT THEY WILL BE ERROR FREE OR FREE FROM VIRUSES, MALWARE, HARMFUL COMPONENTS OR OTHER INFIRMITY, CORRUPTION OR VULNERABILITY OR THAT DEFECTS WILL BE CORRECTED AND THEREFORE, WE EXPRESSLY DISCLAIM AND SHALL NOT BE SUBJECT TO ANY DAMAGES OR LIABILITY ARISING FROM ERRORS, OMISSIONS OR DELAYS OR BY ANY HARMFUL TECHNOLOGY MATERIAL THAT MAY AFFECT YOUR SYSTEMS, DATA OR MATERIALS; AND (C) THE WEBSITE AND ALL COMPONENTS THEREOF ARE PROVIDED ON AN “AS IS” BASIS AND YOUR USE IS AT YOUR OWN RISK.

Further, you are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data.

Our website may include links to third-party websites.  Your access and use rights to such third-party sites may require you to agree to additional terms and conditions.  All such additional terms, conditions or agreements do not alter these Terms and you will be responsible for your use of such third-party websites, including any costs and fees, and any risks arising therefrom.

Limitations on our liability. IF YOU ARE DISSATISFIED WITH THE WEBSITE YOUR REMEDY IS TO STOP USING IT.  In no event shall we or our affiliates be liable to you or any third party for damages of any kind, including, but not limited to, any indirect, special, incidental, exemplary, punitive or consequential damages, including but not limited to loss of profits, lost time, loss of data or goodwill, even if advised of the possibility of such damages, whether in contract, tort, strict liability or otherwise. Our liability will not exceed, in the aggregate for all claims, $10. These limitations do not apply if we are grossly negligent, act willfully or where we cause bodily injury.  Some laws do not allow the limitation or exclusion of liability, so these limits may not apply to you.

  1. INDEMNIFICATION

Your indemnification obligation to us. You agree to indemnify and hold us harmless (including our officers, directors, equity holders, employees, and agents) from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees), or other expenses that arise directly or indirectly out of or from: (a) any activity by you on our website in violation of the Terms, including without limitation any communications or transmissions made through the website, (b) your violations of applicable law, (c) your violation of the rights, including, intellectual property and privacy rights of any third party, and (d) your user materials and contributions, including without limitation your failure to secure all necessary rights, licenses and approvals such that they can be legally submitted to the website. You agree to cooperate fully in any inquiry we may conduct concerning actual, alleged, or potential violations of the Terms.

  1. ARBITRATION, LEGAL DISPUTE

How we handle disputes. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms, or related to the processing of personal data, that cannot be resolved informally or on an individual basis in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Section 8 (this “Arbitration Agreement”). Unless otherwise agreed, all arbitration proceedings will be held in English. This Arbitration Agreement applies to you and Trustwell, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns.

Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice should be sent to Trustwell at: 4747 Skyline Rd S, Suite 100, Salem, Oregon 97306, United States; ATTN: Legal Department. After the Notice is received by Trustwell, you and Trustwell shall attempt to resolve the claim or dispute informally. If you and Trustwell do not resolve the claim or dispute within thirty (30) days after the Notice is received by Trustwell, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

Arbitration shall be initiated through the American Arbitration Association, the alternative dispute resolution provider (“ADR Provider”). The rules of the ADR Provider (the “Arbitrations Rules”) shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment or the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Trustwell shall pay all fees and costs of the ADR Provider except the initial filing fee which shall be paid by the claiming party. Each party shall otherwise bear its own costs (including attorneys’ fees) and disbursements arising out of the arbitration.

If non-appearance-based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.

If you or Trustwell pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the Arbitration Rules for the pertinent claim.

If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Trustwell, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim (including any claim regarding the enforceability of this Arbitration Agreement or any unconscionability in connection with these Terms). The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under Applicable Law, the Arbitration Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Trustwell.

THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Trustwell in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE Trustwell WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE WEBSITE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER WEBSITE USER.

All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable with regards to any particular subject matter by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect with regard to such specific subject matter and shall be severed and the remainder of the Agreement shall continue in full force and effect.

Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.

Notwithstanding the foregoing, (i) either you or Trustwell may bring an individual action in small claims court, and (ii) either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.

Notwithstanding the foregoing, disputes related to claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s intellectual property or proprietary rights shall not be subject to this arbitration agreement and each of Trustwell or you shall have the right to bring action in any court having competent jurisdiction.

  1. OTHER IMPORTANT TERMS

Sections that survive termination of these Terms. All sections of the Terms which by their nature survive termination shall continue in full force and effect beyond any termination of the Terms, including, without limitation, all provisions which relate to proprietary rights, disclaimers, limitation of liability, waiver and indemnification.

Severability of terms. If one or more of the provisions of these Terms shall be held unenforceable by a court in any applicable jurisdiction, then such provision shall be deleted from the Terms to the minimum extent, and the remaining provisions will continue in full force and effect. Any such judicial interpretation requiring limitation or deletion of a provision shall be valid only in the jurisdiction in which such interpretation is made.

Conduct does not waive rights. No waiver by us of any term or condition set out in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure by us to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.

  1. CONTACT INFORMATION

If you have any questions relating to the Terms, please contact us at: terms@trustwell.com.

You agree that the only way to provide us Notice of Dispute is at the address provided in Section 8 of these Terms.