Last Updated: July 14, 2023
BY CLICKING THE “ACCEPT” OR “I AGREE” BUTTON, CUSTOMER CONFIRMS THAT IT (A) HAS READ AND UNDERSTANDS THIS AGREEMENT; (B) REPRESENTS THAT IT IS 18 YEARS OF AGE OR OLDER OR OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPTS THIS AGREEMENT AND AGREES TO BE LEGALLY BOUND BY ITS TERMS.
- Grant of Rights.
- SaaS, Access Rights. Subject to the terms and conditions of this Agreement, trackd, Inc. (“trackd”) hereby grants Customer during the Term, a limited, nonexclusive, non-transferrable (except in compliance with Section 14.5), non-sublicensable right to access and use the trackd Service during the Term solely for Customer’s internal business purposes to permit Authorized Users to access and use the trackd Service in accordance with the Documentation (the “Access Right”). The trackd Service may be accessed and used only by Authorized Users through access credentials provided by trackd. Access credentials are unique to each Authorized User and shall not be shared or distributed in any way by Customer or any Authorized User without the prior written consent of trackd.
- Agent License. Subject to the terms and conditions of this Agreement, trackd hereby grants Customer during the Term, a limited, nonexclusive, non-transferrable (except in compliance with Section 14.5), non-sublicensable, Term-limited, revocable license: (i) to install, reproduce and use the Agent solely for the purpose of collecting Agent Data; and (ii) reproduce the Documentation provided to Authorized Users solely in connection with Authorized Users’ access and use of the trackd Service and the Agent.
- Customer Data. Customer grants to trackd a perpetual, royalty free, fully paid up, world-wide, revocable (solely for material breach of this Agreement) non-exclusive right and license to reproduce, distribute, transmit, display, reformat, modify, create derivative works of, and otherwise use any: (a) Customer Data in order to perform trackd’s obligations under this Agreement; and (b) metadata collected in connection with Customer’s use of the Service and the Agent in order to improve trackd’s products and services. Customer shall obtain, at its sole expense, all consents, rights, licenses, permissions and clearances (and provide all notices) required under applicable laws for trackd to use the Customer Data for the purposes contemplated by this Agreement. Customer represents and warrants to trackd that Customer has all rights in Customer Data necessary to grant the license to trackd set forth in this Section 1.3.
- Anonymized Data. In addition to Section 1.3, Customer hereby grants to trackd a worldwide, royalty-free, perpetual, irrevocable, non-exclusive license to anonymize, aggregate, and create the Anonymized Data. Customer hereby unconditionally and irrevocably assigns and agrees to assign to trackd all right, title, and interest in and to the Anonymized Data, including all intellectual property rights relating thereto.
- Third-Party Materials. trackd may from time to time make Third-Party Materials available to Customer or use services within Third-Party Materials to provide the trackd Service or the Agent. Customer acknowledges that such Third-Party Materials are subject to their own terms and conditions and that in the case of conflict between this Agreement and such terms and conditions, the third party terms and conditions shall control.
- Free Services. From time to time, trackd may (i) offer features related to the trackd Service that are not generally available to all of its customers or the public; and (ii) release products or features related to the trackd Service that are identified as beta, preview, pilot, limited release, or similar designation (collectively, “Free Services”). Free Services are provided for evaluation, informational or testing purposes only, may contain bugs or errors, and may not be as reliable as other features of the trackd Service. The Free Services are provided “as-is,” with no warranty whatsoever. Customer’s use of such features may include additional rules or restrictions and is at Customer’s sole risk. trackd may discontinue Free Services at any time in its sole discretion, and trackd may decide not to make Free Services generally available. For the avoidance of doubt, Free Services are a part of the trackd Materials, and, therefore, are subject to the terms of the Agreement. Notwithstanding anything to the contrary, Sections 11.1 (Limited Warranty) 12 (Indemnification), 13.2 (Cap on Liability) of this Agreement do not apply to Free Services. IN NO EVENT WILL TRACKD’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO FREE SERVICES UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED FIVE HUNDRED DOLLARS ($500.00).
- Availability, Control & Service Management.
- Availability. trackd will use commercially reasonable efforts to make the trackd Service accessible and capable of operation twenty-four (24) hours each day, seven (7) days a week during the Term excluding any Scheduled Downtime (as defined in Section 3.4), force majeure events, and bank holidays.
- Service and System Control. Except as otherwise expressly provided in this Agreement, as between the Parties: (a) trackd has and will retain sole control over the operation, provision, maintenance, and management of the trackd Materials; and (b) Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the trackd Materials by any person or entity by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the trackd Service, Agent or trackd; (ii) results obtained from any use of the trackd Materials; and (iii) conclusions, decisions, or actions based on such use. trackd reserves the right, from time to time, to modify, add to, or replace the trackd Systems and will provide Customer notice of any modifications during the Term that will have a material deprecating effect on its use of the trackd Service.
- Updates; Changes. trackd will provide general release bug fixes, maintenance releases and updates for the trackd Service (each an “Update”) during the Term at no additional charge. Updates do not include products or options that are designated by trackd as new products, or options or enhancements for which trackd charges a separate fee. Updates will be deemed to be part of the trackd Service and shall be subject to the terms and conditions of this Agreement. trackd reserves the right, in its sole discretion, to make any changes to the trackd Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of trackd’s services (including the trackd Service) to its customers; (ii) the competitive strength of or market for the trackd Materials; or (iii) the trackd Service’s cost efficiency or performance; or (b) comply with applicable law.
- Scheduled Downtime and Maintenance. trackd will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the trackd Service after business hours or on the weekend; and (b) provide Customer at least twenty-four (24) hours prior notice of all scheduled outages of the trackd Service (“Scheduled Downtime”). Trackd will notify Customers as soon as commercially practical, should the trackd Service be unavailable due to emergency maintenance.
- Suspension or Termination. In addition to any other remedies, trackd may suspend or otherwise deny Customer’s or any Authorized User’s use of all or any part of the trackd Materials, without incurring any resulting obligation or liability: (a) if trackd receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires trackd to do so; or (b) if trackd believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or has accessed or used the trackd Materials beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Documentation; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; (iii) such suspension is necessary to protect the integrity or security of the trackd Materials; or (c) this Agreement expires or is terminated.
- trackd Restrictions. trackd agrees: (a) not to disclose, or make available or accessible, the Customer Data to any third party or other unauthorized person or entity, except as permitted under this Agreement; (b) not to access the Customer Data for any use other than as permitted hereunder; (c) to restrict use of the Customer Data only to authorized personnel, to take reasonable precautions to protect the Customer Data from unauthorized disclosure, and to abide by all applicable laws related to Customer Data; (d) to anonymize the Customer Data to produce the Anonymized Data; (e) to notify Customer promptly if it learns of any unauthorized use or breach of security of the trackd operating environment; and (f) to restrict the access to, and use of the Customer Data only to authorized personnel within trackd’s organization.
- By Customer. Customer shall not and shall not permit any other person or entity to access or use the trackd Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits: (a) copy, modify, translate or create derivative works or improvements of trackd Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any trackd Materials; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of any trackd Materials; (d) bypass or breach any security device or protection used by the trackd Service or Agent; (e) input, upload, transmit, or otherwise provide to or through the trackd Service, Agent or trackd Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code; (f) access or use trackd Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any third-party intellectual property right or applicable law; (g) access or use trackd Materials for purposes of competitive analysis of trackd Materials, the development, provision, or use of a competing software service or product or any other purpose that is to trackd’s detriment or commercial disadvantage; or (h) otherwise access or use trackd Materials beyond the scope of the authorization granted under this Agreement.
- Professional Services. During the Term, Customer may request trackd to provide certain professional services, which may include provision of certain deliverables, and other services, in each case in connection with the trackd Service (collectively, the “Professional Services”). The scope of Professional Services will be specified in one or more statements of work (“SOW”) executed by the Parties. When executed by the Parties, each SOW shall form a part of this Agreement and be subject to the terms and conditions set forth herein. Each SOW will describe (a) the Professional Services to be performed and any related deliverables, documentation or other material to be provided by trackd, and (b) the anticipated delivery date(s) and Fees for the Professional Services.
- Term and Termination.
- Term. The term of this Agreement shall be the term identified on the Order Form. This Agreement shall expire on the expiration of the Term unless earlier terminated pursuant to this Agreement’s express provisions.
- Termination for Cause. Either Party shall have the right to terminate this Agreement if the other Party commits a material breach of this Agreement and such breach remains uncured thirty (30) days after written notice thereof. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (c) makes or seeks to make a general assignment for the benefit of its creditors; or (d) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- Termination for Convenience. Customer may terminate this Agreement for convenience upon thirty (30) days’ written notice to trackd; provided, however, that if Customer terminates under this Section 6.3, no Fees shall be refunded and all Fees for the remainder of the Term shall be due and owing as provided under this Agreement.
- Effect of Termination. Upon termination or expiration of this Agreement:
- all rights, licenses, consents, and authorizations granted by either Party to the other hereunder will immediately terminate;
- trackd shall immediately cease all use of any Customer Data or Customer’s Confidential Information and (i) within thirty (30) days return to Customer, or at Customer’s written request, destroy all documents and tangible materials to the extent containing, reflecting, incorporating, or based on Customer Data or Customer’s Confidential Information; and (ii) within fourteen (14) days of trackd’s delivery or destruction as required in Section 6.4(b)(i), permanently erase all Customer Data and Customer’s Confidential Information from all trackd Systems and certify the same in writing; provided, however, that trackd’s obligations under this Section 6.4(b) do not apply to any Anonymized Data;
- Customer shall immediately cease all use of the trackd Materials and (i) within thirty (30) days return to trackd, or at trackd’s written request destroy, all documents and tangible materials to the extent containing, reflecting, incorporating, or based on any trackd Materials or trackd’s Confidential Information, (ii) certify the same in writing and (iii) uninstall and remove all instances of the Agent from Customer Systems;
- trackd may disable all Customer and Authorized User access to the trackd Materials;
- if Customer terminates this Agreement for cause, Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and trackd will refund to Customer Fees paid in advance for trackd Service, Agents, Professional Services or products that trackd has not performed as of the effective date of termination; and
- if trackd terminates this Agreement for cause, all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of trackd’s invoice therefor.
- Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Sections 4.2, 6.4, 6.5, 8, 9,10, 11, 12, 13, 14, and 15.
- Security; Subcontractors. trackd shall employ reasonable administrative, physical and technical safeguards to prevent access to, and disclosure of, Customer Data in breach of this Agreement. trackd will, during the Term, maintain and comply with a commercially reasonable data breach plan and shall implement the procedures required under such plan on the occurrence of a data breach (as defined in that plan). trackd may use contractors and consultants in performance of its obligations under this Agreement.
- Fees and Payment.
- Fees. Customer shall pay trackd the Subscription Fees and any other agreed-upon fees set forth on the Order Form and this Section or in a SOW (“Fees”) in accordance with this Section. Customer shall reimburse trackd for pre-approved out-of-pocket expenses incurred by trackd in connection with providing trackd Materials (“Reimbursable Expenses”). Commencing on the one-year anniversary of the Effective Date and annually thereafter, trackd may annually increase the Subscription Fees by five percent (5%) of the then-current Subscription Fees.
- Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on trackd’s income.
- Payment. Customer shall pay all Fees and Reimbursable Expenses on or prior to the due date set forth on the Order Form (if prepaid), or in the case of Reimbursable Expenses or amounts billed in arrears (if not otherwise stated on the Order Form) within fourteen (14) days after the date of the invoice therefor. Customer shall make all payments hereunder via ACH transfer to an account number to be provided by trackd. Failure to make payments when due under this Agreement constitutes a material breach of this Agreement.
- Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available (including those under Section 8.3): (a) trackd may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (b) Customer shall reimburse trackd for all reasonable costs incurred by trackd in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (c) if such failure continues for thirty (30) days following written notice thereof, trackd may suspend performance of the trackd Service until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other person or entity by reason of such suspension.
- No Deductions or Setoffs. All amounts payable to trackd under this Agreement shall be paid by Customer in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law).
- Definitions. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that is: (a) in the public domain at the time of disclosure or subsequently falls into the public domain through no fault of the receiving Party; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party without confidentiality obligations to the other Party; (d) Anonymized Data; or (e) independently developed by the receiving Party. Without limiting the foregoing: all non-anonymized Customer Data is the Confidential Information of Customer and the financial terms and existence of this Agreement are the Confidential Information of each of the Parties.
- Obligations. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, agents, affiliates, or subcontractors who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order or applicable law shall first (to the extent permitted by law) have given written notice to the other Party and, at the request and expense of the other Party, have made a reasonable effort to obtain a protective order; or (b) to establish a Party’s rights under this Agreement, including to make required court filings. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the date of disclosure of such Confidential Information and will expire five (5) years from the termination or expiration of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret under applicable law, such obligations of the receiving Party shall continue for as long as such item of Confidential Information constitutes a trade secret under applicable law.
- Intellectual Property Rights.
- trackd Materials. As between Customer and trackd, all right, title, and interest in and to the trackd Materials, including all intellectual property rights therein, are and will remain with trackd. The applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the trackd Materials except as expressly set forth in Sections 1.1 and 1.2 or the applicable third-party license, in each case subject to Section 4.2.
- Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to trackd by mail, email, telephone, or otherwise, suggesting or recommending changes to the trackd Materials, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), trackd is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to trackd on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and trackd is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although trackd is not required to use any Feedback.
- Customer Data. As between Customer and trackd, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all intellectual property rights relating thereto, subject to the rights and permissions granted herein.
- Trademark License. Subject to the terms and conditions of this Agreement and during the Term, Customer grants to trackd a non-exclusive, non-transferable (except in compliance with Section 14.5) license to use Customer’s trademarks, service marks and logos (“Trademarks”) for the limited purpose of displaying the Trademarks on the trackd website on a splash page identifying trackd’s customers, and in connection with its marketing efforts. trackd acknowledges and agrees that Customer owns the Trademarks and that any and all goodwill derived from the use of the Trademarks pursuant to this Agreement inures solely to the benefit of Customer. Customer shall retain all rights to its Trademarks not expressly granted to trackd in this Agreement.
- References. trackd may request from time to time that Customer act as a reference for public relations purposes, which shall be subject to Customer’s consent.
- Representations and Warranties.
- Limited Warranty. trackd represents, warrants, and covenants to Customer that, during the Term: (a) the trackd Service and Agent will each perform substantially in accordance with the then-current applicable Documentation and (b) trackd will provide Professional Services in a professional, workmanlike manner. As Customer’s exclusive remedy and trackd’s sole liability for breach of the warranty set forth in this Section 11.1, trackd shall use commercially reasonable efforts to correct the non-conforming portion of the trackd Service and/or Agent (as applicable) or re-perform the Professional Services at no additional charge to Customer. If trackd is unable to correct such deficiencies after commercially reasonable efforts, either party may, upon written notice to the other party, terminate this Agreement and refund to Customer any unused and prepaid Fees.
- DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11.1, THE TRACKD MATERIALS AND ALL PROFESSIONAL SERVICES ARE PROVIDED “AS IS.” TRACKD SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, DATA ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER.
- trackd Indemnification. trackd shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) based on allegations that the unmodified trackd Service or Agent, or any use of the trackd Service or Agent in accordance with this Agreement and the Documentation, infringes or misappropriates such third-party’s U.S. patent or copyright, in each case provided that Customer promptly notifies trackd in writing of the claim, cooperates with trackd, and allows trackd sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit trackd, at trackd’s sole discretion, to (i) modify or replace the trackd Service or Agent or the affected component or part thereof to make it non-infringing, or (ii) obtain the right for Customer to continue use. If trackd determines that neither of those alternatives is available, trackd may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer and with a refund of Fees prepaid under this Agreement for any of the affected products or Professional Services that trackd has not yet rendered. THIS SECTION SETS FORTH CUSTOMER’S SOLE REMEDIES AND TRACKD’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE TRACKD MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT VIOLATES, INFRINGES OR MISAPPROPRIATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
- Exclusions. The foregoing obligation of Section 12.1 does not apply to the extent that the alleged infringement or misappropriation arises from: (a) Third-Party Materials or Customer Data; (b) access to or use of the trackd Materials in combination with any hardware, system, software, network, or other materials or service not approved by trackd; or (c) access to or use of the trackd Materials in a manner inconsistent with this Agreement or the Documentation.
- Customer Indemnification. Customer shall indemnify, defend and hold harmless, trackd from and against any Losses resulting from any Third-Party Claim based on: (a) Customer’s use of the trackd Materials in a manner not authorized or contemplated by this Agreement; Customer’s gross negligence or willful misconduct; or (b) Customer’s violation of any applicable laws. In each case provided that trackd promptly notifies Customer in writing of the claim and cooperates with Customer, and allows Customer sole authority to control the defense and settlement of such claim, provided that Customer shall obtain the consent of trackd to any settlement that imposes any liability or obligation on trackd.
- Limitations of Liability.
- Limitation of Liability. IN NO EVENT WILL TRACKD BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER TRACKD WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Cap on Liability. IN NO EVENT WILL TRACKD’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO TRACKD BY CUSTOMER UNDER THIS AGREEMENT.
- Further Assurances. On a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
- Relationship of the Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment or fiduciary relationship between the Parties. Neither Party nor its agents have any authority of any kind to bind the other Party in any respect whatsoever, and the relationship of the Parties is, and at all times shall continue to be, that of independent contractors.
- Notices. Each Party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) in writing and addressed to the other Party at the addresses set forth on the Order Form (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Each Party shall deliver all Notices by personal delivery, nationally recognized overnight courier (with all fees prepaid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving Party and (b) if the Party giving the Notice has complied with the requirements of this Section.
- Entire Agreement. This Agreement, including the Order Form, the Exhibits and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the subject matter of this Agreement.
- Assignment. 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 this Agreement in its entirety, without consent of the other Party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party; provided, however, that the assigning Party shall provide notice to the non-assigning Party promptly. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns. Any attempted assignment other than in accordance with this Section shall be null and void.
- Force Majeure. Neither Party shall be liable for any failure to perform any of its obligations under this Agreement due to unforeseen circumstances or causes beyond the Party’s reasonable control, including acts of God, riot, embargoes, acts of governmental authorities, fire, earthquake, epidemics or pandemics, flood, acts of terror, computer attacks or malicious acts (such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility) and accidents.
- No Third-Party Beneficiaries. This Agreement is not intended to confer any benefit on any person or entity not a Party to this Agreement.
- Amendment and Modification; Waiver. No amendment or modification of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized signatory of trackd and Customer. The waiver by either Party of a breach of or a default under any provision of this Agreement, shall be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
- Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the court may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Governing Law; Submission to Jurisdiction. This Agreement is exclusively governed by and construed in accordance with the internal laws of the Commonwealth of Virginia without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of Virginia. Any claim or action arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Virginia in each case with jurisdiction over the city of Fairfax, Virginia, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such claim or action. Service of process, summons, notice, or other document by mail to such Party’s address set forth on the Order Form (or to such other address as such Party may have designated in accordance with Section 14.3) shall be effective service of process for any claim or action brought in any such court. To the maximum extent permitted under applicable law, the Parties disclaim, and none of this agreement shall be subject to, the Uniform Computer Information Transactions Act as currently enacted or as may be enacted, codified or amended from time to time by any jurisdiction.
- Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party against the other Party arising out of or related to this Agreement, the prevailing Party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing Party.
- Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same Agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
- Order Precedence. In the event of any conflict, contradiction, or ambiguity between the terms and conditions of these trackd Terms of Service and the applicable Order Form, then the terms and conditions of the Order Form shall prevail.
“Agent” means trackd’s proprietary on-premises software module which collects Agent Data.
“Agent Data” means any data or information collected by the Agent while installed on Customer’s Systems, which may include, but not be limited to, (i) information about Customer’s installation process, the computer and/or the platform on which the Agent is installed including hostname and IP address, (ii) information about the operations and functionality of the Agent, (iii) information about the installed software on Customer’s System including software name and version and (iv) information about devices in local network such as type, vendor, model and/or name of device; and (v) data (including randomly or accidentally obtained personal data) about Customer, Authorized User or other users of the computer or network on which the Agent is installed.
“Agreement” means collectively, these trackd Terms of Service, and the Order Form which is hereby incorporated by reference.
“Anonymized Data” means Customer Data collected by trackd from Customer from which all Customer-identifying information has been anonymized to provide a generic aggregate database for trackd’s use in its cybersecurity patch management and data aggregation service, future testing, development, improvement, sales, and marketing efforts.
“Authorized Users” means Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the trackd Service or Agent under the rights granted to Customer pursuant to this Agreement.
“Customer Data” means Agent Data and any other proprietary data made available to trackd by Customer and licensed to trackd or otherwise uploaded, provided, or deposited by Customer into the trackd operating environment. For the avoidance of doubt, Customer Data does not include Anonymized Data, or any metadata or other information reflecting the access or use of the trackd Service or Agent by or on behalf of Customer or any Authorized User.
“Customer” means the legal entity or individual receiving the trackd Service as identified in the Order Form.
“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party service.
“Documentation” means the technical specification documentation generally made available by trackd to its customers with regard to the trackd Service and Agent.
“Effective Date” means the date which Customer assents to the Order Form.
“Order Form” means the particular ordering document specifying the services to be provided hereunder which is entered into between Customer and trackd, whether provided online or otherwise.
“Party” or “Parties” shall mean trackd and Customer individually and collectively, respectively.
“Subscription Fee” means the reoccurring fees in consideration for the trackd Materials, as further defined in the Order Form.
“Term” shall have the definition as set forth in the Order Form.
“Third-Party Materials” means materials, products, services, and information, in any form or medium, including any open-source or other software, software-based services, documents, data, content, specifications, products, equipment, or components of or relating to the trackd Service or Agent that are not proprietary to trackd.
“trackd Materials” means the trackd Service, Agent, Documentation, trackd Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports (generated by the trackd Service or otherwise), that are provided or used by trackd or any subcontractor in connection with the trackd Service or Agent or otherwise comprise or relate to the trackd Service, Agent or trackd Systems. For the avoidance of doubt, trackd Materials include Anonymized Data and any information, data, or other content derived from trackd’s monitoring of Customer’s access to or use of the trackd Service or Agent, but do not include Customer Data.
“trackd Service” means the cybersecurity patch management and data aggregation service provided by trackd to its customers. The trackd Service is offered in a software-as-a-service model.
“trackd Systems” means the information technology infrastructure used by or on behalf of trackd in performing or relating to, the trackd Service or Agent, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by trackd or through the use of third-party services.