ACCOUNT REGISTRATION; BILLING INFORMATION; ACCOUNT ADMINISTRATOR.
1.1 Following acceptance of Your initial Order, You will be permitted to establish an account through which to access the Services (an “Account”). TrackVia will use commercially reasonable efforts to assign to You the name for the Account selected by You. To establish an Account, You must complete the Account registration process. During the Account registration and Order submission process You will be required to provide certain Account registration information (“Registration Information“) and billing information (“Billing Information“) for Your Account. You acknowledge and agree that all Registration Information and Billing Information You provide to TrackVia will be accurate and complete. You agree to provide TrackVia with prompt notice of any updates to the Registration Information and Billing Information so that it is maintained as accurate and complete throughout the term of this Agreement.
1.2 The initial “Account Administrator” for Your Account must be designated during the Account registration process. Following creation of the Account, the Account Administrator may be changed (1) by written notice provided to TrackVia by the Existing Account Administrator, or (2) by written notice provided to TrackVia by an officer of Customer.
1.3 The Account Administrator will have ultimate authority for all instructions provided to TrackVia regarding the administration of Your Account. For example, the Account Administrator will determine who can be a User of the Account, the level of privileges that each User will possess, and the privacy and security settings for the Account. The Account Administrator will also direct TrackVia’s actions should any dispute arise between or among Users of the Account. All notices from TrackVia will be given to the current Account Administrator at the e-mail address appearing in the Account settings of the Account, and/or by a message placed inside the Account.
1.4 Notwithstanding the identity of the Account Administrator, Your Account, and all related data, information, and content provided through any use of the Services through Your Account (“Your Data”) will be owned and controlled by the Customer. Upon any dispute regarding the identity of the Customer, TrackVia may, in its sole discretion, determine the identity of the Customer based on the Registration Information, Billing Information, and Account usage; require that the Customer provide an order of a court of competent jurisdiction establishing its identity and rights to the Account; or suspend or terminate the associated Account.
2. PASSWORD; SECURITY.
Following completion of the Account registration process, the Account Administrator will be permitted to designate individual employees and contractors of Customer (“Users”) to access the Services through Your Account. Once designated by the Account Administrator, Users will be permitted to select a user identification and password, or will have one assigned to them by TrackVia (each such user identification and password, an “User ID”). Each User ID is personal in nature and may be used only by the applicable User to whom that User ID has been assigned. You are solely responsible for all use of the Services by each User and for compliance by each User with the applicable terms of this Agreement. You will ensure the security and confidentiality of each User ID and will notify TrackVia immediately if any User ID is lost, stolen or otherwise compromised. You acknowledge that You are fully responsible for all costs, fees, liabilities or damages incurred through use of each User ID (whether lawful or unlawful), and that any Services ordered or transactions completed under any User ID will be deemed to have been lawfully completed by You.
THE SHARING OF USER ID’S BY MORE THAN ONE USER IS A VIOLATION OF THIS AGREEMENT.
3. OWNERSHIP OF YOUR DATA.
TrackVia may take remedial action if any of Your Data violates this Agreement, including, without limitation, deletion of any of Your Data from the Services, provided that TrackVia is under no obligation to review any of Your Data for accuracy or potential liability. You represent and warrant to TrackVia that You have all necessary right, title, interest and consent necessary to allow TrackVia to use Your Data for the purposes for which You provide Your Data to TrackVia. You will defend, indemnify and hold harmless TrackVia from any and all losses, costs, damages, liabilities or expenses (including without limitation reasonable attorney’s fees) incurred or arising from any claim by a third party arising out of or relating to Your Data or the use thereof by TrackVia in providing the Services.
4. ACCESS TO SERVICES.
During the term of this Agreement, and subject to Your compliance with the terms and conditions of this Agreement, TrackVia grants You a non-exclusive, non-transferable, limited right to access and use the Services through Your Account solely for Your own internal business purposes. You may access the Services and Your Account only by means of the current interface or application programming interfaces (APIs) provided by TrackVia. You are solely responsible for providing and operating all equipment and other services required to connect with Your Account.
The fees for the Services will be set forth in the applicable Orders. Except as otherwise specified herein or in an Order, (1) fees are quoted and payable in United States dollars (2) fees are based on Services purchased and not actual usage, (3) payment obligations are non-cancelable and fees paid are non-refundable, and (4) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order. User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term. You will be responsible for all use, sales, and other taxes imposed on the Services provided under this Agreement. You will provide TrackVia with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to TrackVia. If You provide credit card information to TrackVia, You authorize TrackVia to charge such credit card for all Services listed in the Order for the initial subscription term and any renewal subscription term(s). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order. If the Order specifies that payment will be by a method other than a credit card, TrackVia will invoice You in advance and otherwise in accordance with the relevant Order. Unless otherwise stated in the Order, invoiced charges are due net 30 days from the invoice date. If any charges are not received from You by the due date, then at TrackVia’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) TrackVia may condition future subscription renewals and Orders on payment terms shorter than those previously specified. If any amount owing by You under this or any other agreement for TrackVia’s services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized TrackVia to charge to Your credit card), TrackVia may, without limiting TrackVia’s other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend TrackVia’s services to You until such amounts are paid in full.
6. TERM AND TERMINATION.
6.1 This Agreement will be effective upon the Effective Date. If You have ordered a trial subscription to the Services or a subscription to any free Services, as indicated in an applicable Order (a “Trial/Free Subscription”), then the term of this Agreement will continue for the period of the Trial/Free Subscription indicated in the applicable Order and will thereafter expire unless You place an Order for a non-trial subscription to the Services prior to the completion thereof. If You have ordered a subscription to the Services other than a Trial/Free Subscription, then the term of this Agreement will continue for the initial period stated in the applicable Order. Except as otherwise specified in the applicable Order, all User subscriptions shall automatically renew for additional 1 year renewal periods, unless either party gives the other notice of cancellation at least 30 days before the end of the then current period. The fees applicable to the Services during any such renewal period shall be the same as that during the prior period unless TrackVia provides You with notice of a fee increase at least 30 days before the end of such prior period, in which case the fee increase shall be effective upon renewal. In no event shall any termination or suspension relieve You of the obligation to pay any fees payable to TrackVia for the period prior to the effective date of suspension or termination. Only an Account Administrator may terminate an Account subscription. Termination may be made by the Account Administrator through an e-mail instruction from Account Administrator’s e-mail account as contained in the Account.
6.2 You may terminate this Agreement at any time within 10 days of a change by TrackVia to this Agreement that adversely impacts You. TrackVia may terminate this Agreement, at any time, in TrackVia’s sole discretion: (a) upon any breach by You of this Agreement that remains uncured 10 days after TrackVia delivers written notice to You of such breach; or (b) at any time during any Trial/Free Subscription, for any reason or no reason, upon notice to You. TrackVia reserves the right to examine Your Data or any other data, information, or content contained within Your Account for the purpose of determining if a violation of this Agreement has occurred. Without limiting TrackVia’s right to terminate this Agreement, TrackVia may also immediately and indefinitely suspend Your access to the Services, with or without notice to You, upon any actual, threatened, or suspected breach of this Agreement or of applicable law or upon any other conduct deemed inappropriate or detrimental to the Services or any other customer of the Services by TrackVia in its sole discretion. Termination notices must be addressed to email@example.com.
6.3 Upon termination or expiration of this Agreement for any reason: (a) all rights and subscriptions granted to You under this Agreement will terminate; (b) You will immediately cease all use of and access to the Services; and (c) all fees then owed by You will become immediately due and payable. TrackVia will use commercially reasonable efforts to maintain any Customer Data for a period of 30 days following any termination of this Agreement. Provided that You have paid all fees payable to TrackVia, TrackVia will either (i) provide the Account Administrator with limited access to download Your Data from the Services, or (ii) at Your expense, download and provide Your Data to the Account Administrator in a mutually agreeable medium. Following such 30 day period, TrackVia may remove and permanently delete Your Data and other data, information, or content on file with respect to Your Account. If TrackVia has terminated this Agreement, You (and all Users) are prohibited from re-registering for or using the Services in the future. The provisions of Sections 5, 6.3, 8, 9, 10, 11, and 13 will survive any termination or expiration of this Agreement.
7. STORAGE AND FILE DOWNLOAD / BANDWIDTH LIMITATIONS.
Storage space for the Customer is currently provided in accordance with the TrackVia price list in effect from time to time, and it may be impossible to store portions of Your Data through Your Account due to space constraints. You acknowledge and agree that TrackVia is not responsible or liable for any insufficient storage capacity or the deletion or failure to store Your Data. TrackVia reserves the right to limit the file download and/or bandwidth capacity of Your Account, in its sole discretion. In addition, TrackVia reserves the right to limit the number of e-mails transmitted from its servers for Your Account, in its sole discretion.
8. DATA PRIVACY.
9. WARRANTY; DISCLAIMERS; AND LIMITATIONS OF LIABILITY.
9.1 By TrackVia. Except in the case of any Services provided during a Trial/Free Subscription, TrackVia represents and warrants to You that TrackVia will use commercially reasonable efforts to maintain and verify that the Services operate in accordance with this Agreement. TrackVia’s sole obligation and Your sole and exclusive remedy in the event of any failure by TrackVia to comply with the foregoing sentence will be for TrackVia to, at TrackVia’s option, re-perform the affected Services or refund to You the fees You have actually paid for the affected Services during the month in which the failure occurred. Notwithstanding the foregoing, You remain solely and entirely responsible for Your compliance with, and will defend, indemnify and hold harmless TrackVia from and against any claims arising from any actual or alleged violation by You of any international, federal, state or local treaties, laws, rules, regulations or ordinances regarding Your use of or access to the Services or regarding your business, products or services, including, without limitation, regarding data and data privacy and the transmission of electronic mail messages, whether solicited or unsolicited.
9.2 By You. You hereby represent and warrant to TrackVia that: (1) You are duly authorized by the Customer and have the authority and legal capacity to register and accept this Agreement on behalf of the Customer and to bind the Customer thereto; (2) all Users are at least 18 years of age, or are at least 13 years of age and have parental permission to establish a User ID and/or use and access the Services; (3) You and all Users are eligible to establish a User ID and to become Users, (4) Your and all Users accept and agree to be bound by this Agreement, and will take all steps necessary to ensure that You and Your Users so accept and are bound by the same, without limitation or qualification, and (5) Your and Your Users will regularly review this Agreement, and in the event of any change, any failure to terminate this Agreement as provided in Section 6 hereof will be deemed to indicate the agreement of the Customer, on its own behalf and on behalf of its Users, to accept and be bound by such changes.
9.3 DISCLAIMER. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TRACKVIA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. TRACKVIA MAKES NO WARRANTY OR REPRESENTATION REGARDING THE SERVICES, ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH THE SERVICES, YOUR ACCOUNT, OR THAT THE SERVICES WILL MEET YOUR OR ANY USER’S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE SERVICES AND THE ACCOUNT ARE AT YOUR AND YOUR USER’S SOLE RISK. YOU AND YOUR USERS WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THE USE OF THE SERVICES OR YOUR ACCOUNT. Because some states and jurisdictions do not allow limitations on implied warranties, the above limitation may not apply to either You or Your Users. In that event, such warranties are limited to the minimum warranty scope and period allowed by applicable law.
9.4 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TRACKVIA, ITS PARENTS, SUBSIDIARIES, OFFICERS, EMPLOYEES, CONTRACTORS, PARTNERS, SUPPLIERS, OR AFFILIATES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, PROCUREMENT OF SUBSTITUTE GOODS AND/OR SERVICES, OR ANY OTHER PECUNIARY LOSS), INCLUDING, BUT NOT LIMITED TO, CLAIMS ARISING OUT OF, OR RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICES, YOUR ACCOUNT, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF TRACKVIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, TRACKVIA’S MAXIMUM CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SUBSCRIPTION SERVICES (EXCLUDING ANY PER USE OR PROFESSIONAL SERVICE FEES AS SET FOR THE APPLICABLE ORDER) IN THE PREVIOUS 3 MONTHS, EVEN IF ANY REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation may not apply to either You or Your Users.
You and Your Users agree to defend, indemnify and hold harmless TrackVia and its parents, subsidiaries, affiliates, officers, directors, employees, sponsors, and partners from any claim, liability, loss, cost, expense, demand, or damage (including reasonable attorneys’ fees and court costs), arising out of or relating to: (1) Use of or connection to the Services by You or any User or otherwise through Your Account or using any User ID; (2) Registration Information, Billing Information, Your Data or other information transmitted or stored by You or Your Users through or on Your Account or otherwise through the Services, (3) any activities in connection therewith, or (4) Your or Your Users’ breach of this Agreement or violation of the IPR or other rights of any third party.
11. PROPRIETARY RIGHTS.
You acknowledge that the Services and the databases, software, hardware and other technology used by or on behalf of TrackVia to provide the Services (collectively, the “Technology”) and their structure, organization, and underlying data, information and source code constitute valuable trade secrets of TrackVia. You will not, and will not permit any third party to: (1) access or use the Technology, in whole or in part, except as expressly provided in this Agreement; (2) use the Technology to harvest or collect e-mail addresses or other contact information of third parties by any means; (3) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Services; (4) use automated scripts to collect information from or otherwise interact with the Technology; (5) use the Technology to intimidate or harass any other people or entities; alter, modify, reproduce, create derivative works of the Technology; (6) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of Your rights to access or use the Technology, including, without limitation, providing outsourcing, service bureau, hosting, application service provider or on-line services to third parties, or otherwise make the Technology, or access thereto, available to any third party; (7) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Technology; (8) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; or (9) interfere in any manner with the operation or hosting of the Technology, or attempt to gain unauthorized access to the Technology. You will not allow any access to or use of the Services by anyone other than Your authorized Users, and any such use will be consistent with the terms, conditions and restrictions set forth in this Agreement. All trademarks, service marks and logos used in the Services are the property of their respective owners.
12. NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT.
Just as TrackVia requires users of the Services to respect the copyrights and other intellectual property rights of TrackVia, its affiliates, and other third parties, TrackVia respects the copyrights and other intellectual property rights of Users of the Services and other third parties. If You believe in good faith that Your copyrighted work has been reproduced through the Services without authorization in a way that constitutes copyright infringement, You may notify our designated copyright agent by mail to: TrackVia, Inc., Attn: Copyright Infringement Agent, 1675 Larimer St., Suite 500, Denver, CO, 80202 (USA). Please provide the following information to TrackVia’s Copyright Infringement Agent: (1) the identity of the infringed work, and of the allegedly infringing work; (2) Your name, address, daytime phone number, and email address, if available; (3) a statement that You have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law; (4) a statement that the information in the notification is accurate and, under penalty of perjury, that You are authorized to act on behalf of the owner; and (5) Your electronic or physical signature.
Neither party may assign or delegate their respective obligations under this Agreement either in whole or in part, without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign their rights and obligations under this Agreement as the result of a merger, consolidation, acquisition or the sale of all or substantially all of the assets of the assigning party and TrackVia may assign its rights and delegate its obligations in whole or in part to any affiliate. This Agreement will be governed by and construed in accordance with the laws of the United States and the State of Colorado as applied to agreements entered into and to be performed entirely within Colorado between Colorado residents. The parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against state and federal courts in, Denver County, Colorado in any litigation arising out of the Agreement. This Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party.
Except for Your obligation to pay for the Services rendered, neither party will be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency, shortage of materials, acts of terrorism, or the stability or availability of the Internet or a portion thereof. The waiver of any one breach, default or right granted under this Agreement will not constitute the waiver of any subsequent breach, default or right granted. You acknowledge that the Services are subject to U.S. export control laws and regulations. You represent that you are not a citizen of an embargoed country or prohibited end user under applicable U.S. export and anti-terrorism laws, regulations and lists. You will not use, export or allow a third party to use or export the Services in any manner that would violate applicable law, including but not limited to applicable export control laws and regulations. You grant to TrackVia a revocable license for TrackVia to use your trade name and/or your corporate logo in connection with TrackVia’s promotional materials and/or website to identify you as a customer of TrackVia. You may terminate this license by notifying TrackVia in writing.
14. FEDERAL GOVERNMENT END USE PROVISIONS.
TrackVia provides the Services, including any related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with TrackVia to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.