TERMS AND CONDITIONS
Last Updated: September 29, 2020
These are the terms and conditions (these “Terms”) that govern access to and use of the TrackStreet Services.
Definitions. Capitalized terms used in these Terms shall have the meanings identified below in this Section 1:
- Antitrust Laws means any antitrust laws and regulations created to regulate trade and commerce by preventing unlawful restraints, price-fixing and monopolies, including, without limitation, any laws and regulations pertaining to pricing between manufacturers and distributors or retailers.
- Authorized Distributor shall mean a distributor or reseller of the TrackStreet Services that has entered into an Authorized Distributor Order Form with TrackStreet on behalf of a third party that will be the actual Customer of TrackStreet. Unless expressly specified in the applicable Authorized Distributor Order Form (or in an Order Form entered into as a direct Customer of TrackStreet): (i) an Authorized Distributor shall not be deemed to be a “Customer”; (ii) an Authorized Distributor shall have no right to access and use the TrackStreet Services; and (iii) none of an Authorized Distributor’s employees shall be deemed to be an “Authorized User” of the TrackStreet Services.
- Authorized Distributor Order Form shall mean an Order Form entered into by TrackStreet with an Authorized Distributor pursuant to Section 2.a, where such Authorized Distributor is entering into such Order Form on behalf of and for the benefit of the ultimate “Customer” of TrackStreet specified on such Order Form.
- Authorized User means the employees of Customer (or, if specified in an Authorized Distributor Order Form, the employees of the applicable Authorized Distributor) who Customer authorizes to access the TrackStreet Services for Customer’s internal business purposes. In addition, and only with respect to the Referral Reverb Program, the term “Authorized User” also shall refer to participating customers and/or other sales agents of Customer, and unless expressly provided otherwise in the applicable Order Form, any such Authorized User who is a participant in the Referral Reverb Program shall be eligible to be enlisted by TrackStreet in the ‘Referral Reverb Program Marketplace’ or other derivative, where users may be offered opportunities to participate in other referral program opportunities. All Authorized Users shall use the TrackStreet Services in accordance with the Agreement.
- Collected Data means data which is publicly available and which is collected by the TrackStreet Services, including, without limitation, information relating to Customer’s products, product descriptions, specifications, and the price of Customer’s products.
- Confidential Information means nonpublic proprietary information of TrackStreet, Customer or an Authorized Distributor, and any third party information that TrackStreet, Customer or an Authorized Distributor agreed to treat as confidential, which is either designated in writing as “confidential” or otherwise is of such a nature that it is reasonably obvious the information should be considered to be confidential; provided, that notwithstanding the above, all computer code that forms the basis of the TrackStreet Services and the Embed Code shall be considered “Confidential Information” of TrackStreet. In addition, with respect to Customer, all compilations of Customer’s products, prices, referral incentives (for the Referral Reverb Program), referral fees payable to TrackStreet (for the Referral Reverb Program), product descriptions, specifications, manuals, methods, processes, designs, plans, employee information, customer information, sales agent information, supplier information, and financial information that is provided by Customer (or, if applicable, by an Authorized Distributor on behalf of Customer) to TrackStreet shall be considered to be “Confidential Information” of Customer. Notwithstanding the foregoing, no information shall be deemed to be “Confidential Information” for purposes of the Agreement to the extent that the receiving party can establish with competent evidence that such information (i) was known to the receiving party prior to receipt from the disclosing party and not otherwise subject to an obligation of confidentiality to the disclosing party; (ii) was generally known to the public (including by being accessible on the Internet) prior to receipt from the disclosing party; (iii) becomes generally known to the public through no fault or omission of the receiving party; or (iv) was received by the receiving party in good faith from a third party who is not subject to an obligation of confidentiality. For purposes of clarification, Collected Data shall not be deemed to be “Confidential Information”, yet TrackStreet’s ability to use such Collected Data shall be limited by Section 3.b.
- Customer means the person or entity that has entered into a currently effective Order Form with TrackStreet or, if applicable, the ultimate “Customer” of TrackStreet designated in a currently effective Authorized Distributor Order Form.
- Documentation means, with respect to each TrackStreet Service, the user documentation that TrackStreet provides or makes available to Customer (including future updates thereto).
- Embed Code means software code which may be provided by TrackStreet to Customer in connection with the provision of the TrackStreet Services, and which, when embedded by Customer in a web page or mobile application, enables such web page or mobile application to support and interact with the TrackStreet Services.
- Infringement Reporting and Delisting Services means an ancillary service to the SaaS Services provided by TrackStreet to Customer under these Terms, and subject to TrackStreet and Customer entering into an effective Order Form, pursuant to which Customer has requested TrackStreet to, and TrackStreet has agreed to act for and on behalf of Customer to, file notices, as directed by Customer, and to perform reasonably related follow-up actions to notify online resellers (i.e., Amazon, eBay, AliExpress, etc., or any of their respective affiliates) of unauthorized usage of Customer’s trade names, service marks, logos and/or other identifying intellectual property, in order to alert such online resellers to infringement and/or safety concerns and, in appropriate cases, to have such online resellers remove unauthorized sellers from Customer’s product listings.
- Intellectual Property Rights means any and all now known or hereafter known or existing patents, copyrights, trademarks, trade secrets, Confidential Information or other intellectual property rights and all registrations, applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in the foregoing, including moral rights).
- Order Form has the meaning set forth in Section 2.a, and any Authorized Distributor Order Form entered into pursuant to these Terms shall be deemed to be an Order Form for all applicable purposes under the Agreement. For an Order Form to be effective, it must be accepted by TrackStreet (including acceptance by electronic means). Each Order Form shall be a part of and shall be governed by the Agreement. If any terms of an Order Form directly conflict with these Terms (for the avoidance of doubt, where an Order Form includes additional or more specific terms and conditions with respect to a concept addressed generally in these Terms, no conflict shall be deemed to exist), the terms of the Order Form shall take precedence for the TrackStreet Services provided under the applicable Order Form, but such conflicting terms shall not affect the Agreement generally or any other Order Form.
- Order Form Term has the meaning set forth in Section 7.a.
- Referral Reverb Program means an ancillary service to the SaaS Services provided by TrackStreet to Customer under these Terms, and subject to TrackStreet and Customer entering into an effective Order Form, pursuant to which TrackStreet will enable Customer to provide a customizable referral reward program for Customer’s designated Authorized Users (whether employees, sales agents or customers), where Customer may provide to such Authorized Users commissions, discounts, credits and/or other incentives for qualified referrals which lead to completed sales of Customer’s products and/or services (and pursuant to which Customer shall pay to TrackStreet a designated percentage of revenue resulting from such completed sales).
- Service Level Agreement has the meaning set forth in Section 2.b(ii).
- Term of the Agreement has the meaning set forth in Section 7.a.
- Terms has the meaning set forth in the introductory paragraph.
- TrackStreet Services means the TrackStreet products that are licensed by TrackStreet to Customer on a “software as a service” basis pursuant to the Agreement and the applicable Order Form, and shall include, without limitation, future updates and versions of such TrackStreet products.
- TrackStreet Technology means any of TrackStreet’s technology, software, library of codes, processes, tools, and business methods used to provide the TrackStreet Services.
TrackStreet Services (Access and Use).
Right to Access and Use. Subject to the terms and conditions contained in the Agreement, and as specified in each Order Form, TrackStreet will provide to Customer and its Authorized Users the limited, non-exclusive, non-transferable right to access (including any access protocols necessary to exercise such right) and use the TrackStreet Services and the related Documentation during the applicable Order Form Term. Any Order Form may be amended by the written agreement of both Customer (or, if applicable, the Authorized Distributor that entered into the original Authorized Distributor Order Form) and TrackStreet (which may be accomplished via electronic means).
- Installation. Unless otherwise specified in the applicable Order Form, neither Customer nor any Authorized User should require any installation or implementation services from TrackStreet to be able to use the TrackStreet Services as contemplated under these Terms or the applicable Order Form; provided, that Customer and each Authorized User is responsible for providing, at Customer’s or such Authorized User’s sole cost and expense, generally available computer hardware, internet access, power and web browsers and other items generally required to access and use the Internet.
Support Services. TrackStreet will provide the support services set forth in Exhibit A (the “Service Level Agreement”), and shall conduct training sessions to Customer as set forth in the applicable Order Form (though Customer shall be responsible for all of its own travel, living and other expenses associated with such training). At the request of the one (1) Customer primary technical contact or the one (1) Customer back-up technical contact to be designated in writing by Customer, TrackStreet will provide the following support services to Customer:
- Electronic Support: TrackStreet will provide reasonable consultation and support over the Internet regarding the operation of the TrackStreet Services, including both technical and user issues.
- Error Correction: If Customer encounters a material failure of the TrackStreet Services to comply with the specifications set out in the applicable Documentation, and if Customer gives TrackStreet notice specifying the material failure within a commercially reasonable period of time after discovering such material failure, then TrackStreet shall use commercially reasonable efforts to verify the cause of the problem, and if the error is due to any act or omission of TrackStreet, TrackStreet’s sole obligation shall be to use its commercially reasonable efforts to correct the reported problem. If TrackStreet is unable to remedy the material failure within a commercially reasonable amount of time, TrackStreet shall, as Customer’s sole remedy for such material failure, refund the fees Customer paid for the non-conforming TrackStreet Services, equitably pro-rated based upon the unused portion of the pre-paid term for such non-conforming TrackStreet Services.
- Service Rules, Guidelines and Restrictions. Customer shall have the right to use the TrackStreet Services and Documentation solely for Customer’s internal business purposes, and shall not allow third parties (other than Authorized Users) to gain access to or use the TrackStreet Services. Customer shall not use the Embed Code, the TrackStreet Services, or any information obtained through the TrackStreet Services for any unlawful or unauthorized purpose (including, without limitation, for any purpose in violation of any Antitrust Laws). In addition, Customer (and Customer’s Authorized Users) shall not use the TrackStreet Services to: (i) track or collect information in a manner that violates Customer’s privacy policies or is otherwise illegal; (ii) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (iii) interfere with or disrupt the integrity or performance of the TrackStreet Services or the data contained therein; (iv) attempt to gain unauthorized access to the TrackStreet Services or the TrackStreet Technology; or (v) interfere with another user’s use and enjoyment of the TrackStreet Services.
- Distribution Rights of Authorized Distributors. Upon entering into an Authorized Distributor Order Form with an Authorized Distributor, TrackStreet shall grant to the applicable Authorized Distributor the non-exclusive, non-transferable right to authorize the Customer(s) specified in such Authorized Distributor Order Form to access and use the TrackStreet Services as specified in the applicable Authorized Distributor Order Form, and each Customer specified in such Authorized Distributor Order Form shall be deemed to be a Customer for all applicable purposes under the Agreement. For so long as a person or entity is an Authorized Distributor of TrackStreet under the Agreement, such Authorized Distributor shall comply with the following provisions: such Authorized Distributor (i) must offer the TrackStreet Services using a commercially reasonable sales process, and must not use any deceptive, illegal, misleading or unethical practices, or make any misleading representations with regard to TrackStreet or any of the TrackStreet Services; (ii) shall participate in reasonable ongoing sales process/education for the TrackStreet Services; (iii) shall comply with all laws, rules and regulations applicable to such Authorized Distributor’s activities under the Agreement, and shall procure and maintain all required governmental qualifications, licenses and permits (if any) necessary to perform its obligations under the Agreement; (iv) shall bear all costs, expenses and liabilities relating to the conduct of such Authorized Distributor’s business, including, without limitation, all costs and expenses incurred in connection with such Authorized Distributor’s performance under the Agreement; (v) acknowledges and agrees that whenever such Authorized Distributor enters into an Authorized Distributor Order Form on behalf of a Customer for the subscription of TrackStreet Services by the designated Customer, the TrackStreet Services shall be provided pursuant to the terms and conditions of the Agreement, and such Authorized Distributor shall in all instances be solely liable for any representation or warranty that such Authorized Distributor makes in respect of the TrackStreet Services that are in addition to or different from the representations and warranties provided by TrackStreet under the Agreement; (vi) shall, if such Authorized Distributor becomes aware of any actual or suspected unauthorized use of the TrackStreet Services, or any part thereof, or any infringement of any of TrackStreet Intellectual Property Rights, promptly notify TrackStreet and will assist TrackStreet, at TrackStreet’s request and expense, in the investigation and prosecution of such unauthorized use or infringement; (vii) agrees to keep TrackStreet informed of any problems encountered with the TrackStreet Services; and (viii) such Authorized Distributor shall refrain from disparaging TrackStreet or the TrackStreet Services, or from otherwise injuring the reputation, goodwill or good standing in the industry of TrackStreet. An Authorized Distributor shall defend, indemnify and hold harmless TrackStreet, its officers, directors, employees, representatives, and agents, from and against any suit, claim, damages, liabilities and/or losses (including without limitation court costs and reasonable attorneys’ fees) (collectively, “Losses”) arising out of related to any breach by such Authorized Distributor of any of the foregoing provisions set forth in the immediately preceding sentence. Notwithstanding the foregoing, and for the avoidance of doubt, an Authorized Distributor shall not be responsible for any breach of the Agreement by a Customer designated in an Authorized Distributor Order Form. TrackStreet shall provide each Authorized Distributor with reasonable advance notice of any material changes to the TrackStreet Services and of any changes to the pricing of the TrackStreet Services. Except as otherwise specified in the Agreement, all payment obligations of Authorized Distributor under any Authorized Distributor Order Form shall be non-cancelable and all payments made thereunder shall be non-refundable, and Authorized Distributor’s payment obligations under the Agreement shall not be affected by or dependent upon Authorized Distributor’s receipt of payment from the Customer(s) specified in the applicable Authorized Distributor Order Form.
- Reservation of Rights. TrackStreet and its licensors own all right, title and interest in and to the TrackStreet Services, the Documentation, and other TrackStreet Intellectual Property Rights, and subject to the limited rights expressly granted under the Agreement, TrackStreet reserves all rights, title and interest therein. No rights are granted to Customer (or to an Authorized Distributor) under the Agreement other than as expressly set forth in the Agreement. Except as expressly set forth in the Agreement, neither Customer nor any Authorized Distributor shall (i) modify or copy the TrackStreet Services or the Documentation or create any derivative works based on the TrackStreet Services or the Documentation, provided that Customer may make reasonable copies or extracts of the Documentation for its internal use; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the TrackStreet Services or the Documentation available to any third party, other than to Authorized Users as permitted herein; (iii) reverse engineer, disassemble, decompile or otherwise attempt to reconstruct any of the TrackStreet Technology, including attempting to obtain the source code for any component of the TrackStreet Technology; or (iv) use the TrackStreet Services or the Documentation in any way which violates any applicable laws or regulations, including, without limitation, the Antitrust Laws. TrackStreet reserves the right, in its sole discretion and without prior notice to Customer or to any Authorized Distributor, to modify, discontinue, add, adapt or otherwise change any design or specification of the TrackStreet Services and/or TrackStreet’s policies, procedures and requirements specified in or related thereto, provided such changes do not materially degrade the functionality, performance or accessibility of the TrackStreet Services.
- Collected Data. As between Customer and TrackStreet, Customer shall own all Collected Data, and except as expressly provided herein or as available publicly, Customer reserves all rights, title and interest in and to the Collected Data. Notwithstanding the foregoing, Customer acknowledges and agrees that any and all publicly available information that TrackStreet obtains in connection with the provision of the TrackStreet Services to Customer, including, without limitation, Collected Data, may be added to and maintained in TrackStreet’s general database and may be used by TrackStreet for internal business purposes and/or external consulting services.
Confidentiality and Security.
- Confidentiality. Each of Customer, any Authorized Distributor, and TrackStreet agrees that all items of Confidential Information are proprietary to the disclosing party (or the applicable third party) and will remain the sole property of the disclosing party (or such third party). Each of Customer, any Authorized Distributor, and TrackStreet further agrees as follows: (i) to use, reproduce or disclose the Confidential Information disclosed by another party only for the purposes authorized by the Agreement and/or as necessary to carry out its obligation and exercise its rights under the Agreement (and in particular, TrackStreet shall be permitted to use Customer’s Confidential Information to provide the TrackStreet Services, to prevent or address service or technical problems, to verify service improvements, and to perform TrackStreet’s other obligations as set forth in and in accordance with the terms and conditions of the Agreement and the Documentation, or in accordance with Customer’s instructions), and to otherwise hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (ii) to restrict access to the Confidential Information disclosed by another party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and are required to treat such information in accordance with the terms of the Agreement; and (iii) to return or destroy all Confidential Information disclosed by another party that is in its possession upon termination or expiration of the Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information of another party to the limited extent required in order to comply with applicable law or court order, provided that the party making the disclosure pursuant to such law or court order shall first have given notice to the disclosing party (unless otherwise prohibited by applicable law) and shall have provided such assistance as may be reasonably requested by the disclosing party, at the disclosing party’s sole cost and expense, to limit such disclosure.
- Security. TrackStreet agrees, at all times during the Term of the Agreement, to maintain data security in a manner which conforms to generally recognized industry standards and to: (a) maintain network security using: network firewall provisioning, intrusion detection, and vulnerability assessments; (b) preserve the confidentiality, integrity and accessibility of Confidential Information with administrative, technical and physical measures; (c) store, process, and maintain Confidential Information solely on designated target servers with no Confidential Information transferred to any portable device or storage medium, unless encrypted and for the purpose of either providing technical support services or a designated backup; and (d) store all Confidential Information in encrypted form, using a commercially supported encryption solution. Customer and each of Customer’s Authorized Users (including its Authorized Distributor, if applicable) shall be obligated to keep all passwords confidential, and will be responsible for all use of Customer’s and Customer’s Authorized Users’ passwords and Customer’s account. Customer (and any Authorized Distributor, if applicable) shall notify TrackStreet immediately of any unauthorized use of any such passwords for Customer’s account used for access to the TrackStreet Services, or any other known or suspected breach of security related to the TrackStreet Services.
Warranties; Limitation of Liability.
- Warranties. TRACKSTREET WARRANTS THAT THE TRACKSTREET SERVICES PROVIDED UNDER THE AGREEMENT SHALL BE PROVIDED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE AGREEMENT, THE APPLICABLE DOCUMENTATION AND THE SERVICE LEVELS PROVIDED IN EXHIBIT A. THE TRACKSTREET SERVICES AND ALL OTHER TRACKSTREET PRODUCTS, SERVICES AND MATERIALS ARE OTHERWISE PROVIDED BY TRACKSTREET “AS IS” AND TRACKSTREET DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE FOREGOING, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. TRACKSTREET DOES NOT WARRANT OR GUARANTY THAT ALL ERRORS CAN OR WILL BE CORRECTED, THAT THE TRACKSTREET SERVICES WILL OPERATE WITHOUT ERROR, OR THAT CUSTOMER’S (OR ANY AUTHORIZED USER’S) USE OF THE TRACKSTREET SERVICES WILL PRODUCE ANY SPECIFIC RESULTS. IN ADDITION, TRACKSTREET DISCLAIMS ALL LIABILITY, AND ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO (I) ANY OF CUSTOMER’S PRODUCTS OR SERVICES, (II) ANY OF CUSTOMER’S OR ANY AUTHORIZED USER’S ACTIONS OR OMISSIONS WITH RESPECT TO THE DEVELOPMENT, PRODUCTION, MARKETING, ADVERTISING, SALE OR DELIVERY OF ANY OF CUSTOMER’S PRODUCTS AND/OR SERVICES (OR ANY PRODUCT OR SERVICE OF ANY THIRD PARTY THAT IS MARKETED, ADVERTISED, SOLD OR DELIVERED BY CUSTOMER OR ANY SUCH AUTHORIZED USER), OR (III) ANY REFERRAL FEES, COMMISSIONS, DISCOUNTS AND/OR CREDITS OWED BY CUSTOMER TO ANY OF CUSTOMER’S AUTHORIZED USERS.
- Limitation of Liability. NEITHER TRACKSTREET NOR ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, WILL BE LIABLE TO CUSTOMER OR ANY AUTHORIZED DISTRIBUTOR, OR ANY OF CUSTOMER’S OR ANY AUTHORIZED DISTRIBUTOR’S OFFICERS, DIRECTORS, EMPLOYEES, USERS, CUSTOMERS OR AGENTS FOR ANY CLAIMS FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SUBJECT MATTER OF THE AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE NATURE OF THE CLAIM. TRACKSTREET’S AGGREGATE LIABILITY FOR ALL CASES AND CONTROVERSIES ARISING OUT OF THE SUBJECT MATTER OF THE AGREEMENT, REGARDLESS OF THE FORM OF ACTION (WHETHER BROUGHT IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) SHALL NOT EXCEED (i) WITH RESPECT TO ANY CUSTOMER, THE TOTAL MONTHLY FEES PAID BY CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO SUCH LIABILITY,AND (ii) WITH RESPECT TO ANY AUTHORIZED DISTRIBUTOR, THE TOTAL MONTHLY FEES PAID BY SUCH AUTHORIZED DISTRIBUTOR DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO SUCH LIABILITY.
- Customer and each Authorized Distributor each acknowledges and agrees that the disclaimers, exclusions and limitations of liability set forth in this Section 5 form an essential basis of the Agreement, and that absent these disclaimers, exclusions and limitations of liability, the terms of the Agreement, including the economic terms, would be substantially different.
Pricing and Payment.
- Payment of Fees and Expenses. Customer (or Authorized Distributor, if applicable) shall pay to TrackStreet, without offset or deduction, the fees as set forth in each Order Form (including, without limitation, any applicable subscription fees for the use of the TrackStreet Services and, if applicable, the designated percentage of revenue resulting from completed sales under the Referral Reverb Program), and Customer (or Authorized Distributor, if applicable) also shall be obligated to reimburse TrackStreet for any out-of-pocket costs and expenses that are pre-approved in writing by Customer (or Authorized Distributor, if applicable) and are incurred by TrackStreet directly in connection with the provision of, and as reasonably contemplated by the description of, the TrackStreet Services ordered by Customer, or by an Authorized Distributor on behalf of Customer (i.e., costs incurred in connection with purchasing and/or shipping products in connection with brand protection services). All payments under the Agreement are to be in U.S. dollars. Unless otherwise provided in the applicable Order Form, the subscription fees set forth in the Order Form shall be payable on the first day of the applicable Order Form Term, payment of amounts due to TrackStreet under the Referral Reverb Program shall be made on at least a monthly basis, and reimbursement of out-of-pocket costs and expenses shall be payable within thirty (30) days of Customer’s (or Authorized Distributor’s) receipt of an invoice detailing such costs and expenses, and such payments may be made via a charge to the credit card provided by Customer or Authorized Distributor, as applicable, to TrackStreet, via payment by check, via automated clearinghouse (ACH), or via any other payment method accepted by TrackStreet (or any combination of any of the foregoing). If Customer or Authorized Distributor fails to pay any amount payable by it under the Agreement by the date due, TrackStreet shall have the right to recover from Customer or Authorized Distributor, if applicable, all expenses of collection (including reasonable legal fees). In addition to any other right or remedy available to TrackStreet at law or equity under the Agreement, TrackStreet has the right to suspend or terminate any or all of the TrackStreet Services for non-payment.
- Fee Increases. TrackStreet may provide written notice of its intention to increase fees in any renewal term for an Order Form. Such notice will be provided to Customer or Authorized Distributor, as applicable, at least ninety (90) days prior to the beginning of a renewal term of the applicable Order Form. If the proposed new fees are unacceptable to Customer or Authorized Distributor, as applicable, Customer has the option not to renew the applicable Order Form Term as provided in Section 7.a
- Taxes. Customer or Authorized Distributor, as applicable, is solely responsible for paying any sales, use, value added or other taxes attributed to Customer’s or Authorized Distributor’s fee for the TrackStreet Services (and support related thereto), other than taxes on TrackStreet’s net income.
Term and Termination.
- Term of the Agreement; Order Form Term(s). The Agreement shall be effective and shall apply to TrackStreet’s provision of the TrackStreet Services and Customer’s access to and use of the TrackStreet Services for so long as Customer and TrackStreet (or an Authorized Distributor and TrackStreet, if applicable) are parties to an effective Order Form (the “Term of the Agreement”). Unless expressly provided otherwise in an Order Form, the initial term of such Order Form shall begin on the effective date specified in such Order Form and shall expire on the first anniversary of such date, unless earlier terminated in accordance with these Terms, and thereafter the term of such Order Form shall automatically renew for successive twelve (12) month terms unless either party provides the other party with written notice of non-renewal of such Order Form at least thirty (30) days prior to the expiration of the then-current term of such Order Form. The initial term and any renewals of each Order Form shall be referred to herein as the “Order Form Term”. The Agreement also may be terminated as provided in Section 7.b.
- Termination for Breach. Either Customer or Authorized Distributor, on the one hand, or TrackStreet, on the other hand, may terminate the Agreement and/or any Order Form if the other party materially breaches any term or condition of the Agreement and fails to remedy such breach within thirty (30) days after receiving written notice of such breach from the other party. Termination of the Agreement or any Order Form shall not constitute either party’s exclusive remedy for breach or non-performance by the other party, and each party shall be entitled to seek all other available remedies, both legal and equitable, including injunctive relief.
- Right to Suspend. TrackStreet reserves the right, in its sole discretion, to immediately suspend the provision of the TrackStreet Services, or any portion thereof, to Customer at any time: (i) if Customer (or any Authorized User of Customer, or any other others who access the TrackStreet Services on Customer’s behalf or through Customer’s account) uses the TrackStreet Services and/or the TrackStreet Technology in any manner that produces, or is reasonably likely to produce, a detrimental impact on other users or the operation or performance of the TrackStreet Service or the TrackStreet Technology; or (ii) to protect against the commission of actual or suspected illegal activities. TrackStreet will attempt to contact Customer in advance of any such suspension, and, if possible, work with Customer to avert such action, but otherwise shall notify Customer of a suspension under this Section as soon as possible.
- Rights and Obligations Upon Termination. Upon termination or expiration of the Agreement for any reason (or in the case of termination or expiration of an Order Form, under that Order Form) (i) all future rights granted under the Agreement to Customer (or to Authorized Distributor, if applicable) and granted by Customer (or by Authorized Distributor, if applicable) to TrackStreet shall terminate, and TrackStreet shall immediately discontinue Customer’s access to the TrackStreet Services and any other services provided hereunder, and (ii) Customer (and Authorized Distributor, if applicable) shall return all Confidential Information and documentation related to the TrackStreet Services, and TrackStreet shall return to Customer (and to Authorized Distributor, if applicable) all of Customer’s (or Authorized Distributor’s, if applicable) Confidential Information.
- Survival. All provisions of the Agreement which by their nature are intended to survive the termination of the Agreement, shall survive, including without limitation obligations regarding Proprietary Rights, Confidentiality, Disclaimer of Warranties, Limitation of Liability, Payment of Fees and Expenses, Rights and Obligations Upon Termination, Indemnification, Dispute Resolution and General.
- Indemnification. Customer shall defend, indemnify and hold harmless TrackStreet, its officers, directors, employees, representatives, and agents, from and against any Losses arising out of the actual or alleged (a) use or exploitation of Collected Data in violation of any applicable law (including any Antitrust Laws), (b) use of the TrackStreet Services or Embed Code other than as authorized by the Agreement, (c) if and to the extent that Customer engages TrackStreet to provide any Infringement Reporting and Delisting Services, any actions taken by TrackStreet in connection with such Infringement Reporting and Delisting Services (and Customer hereby generally, irrevocably, unconditionally and completely releases and forever discharges TrackStreet from any and all Losses arising out of any actions taken by TrackStreet in connection with the Infringement Reporting and Delisting Services, whether now existing or hereafter arising, known or unknown, absolute, contingent or otherwise, other than actions taken by TrackStreet which are finally determined by a court of competent jurisdiction to constitute willful misconduct), or (d) if and to the extent that Customer engages TrackStreet to provide the Referral Reverb Program, any Losses relating to or resulting from the development, production, marketing, advertising, sale or delivery of any of Customer’s products and/or services (or any product or service of any third party that is marketed, advertised, sold or delivered by Customer to or any Authorized User of Customer). TrackStreet shall defend, indemnify, and hold harmless Customer, its officers, directors, employees, representatives, and agents from and against any Losses arising out of the actual or alleged infringement of the intellectual property rights of a third party associated with the TrackStreet Services. In the event a claim of infringement subject to indemnification is made, or TrackStreet believes that such a claim is likely to be made, TrackStreet shall, at its expense, either: (i) procure for Customer the right to continue using the TrackStreet Services; or (ii) replace or modify the TrackStreet Services so that they become non-infringing; or (iii) if neither (i) nor (ii) above is commercially reasonable, terminate the Agreement (or the applicable Order Form) and issue a refund for any prepaid but undelivered TrackStreet Services. Neither party, in its capacity as the indemnifying party (in such capacity, the “Indemnifying Party”) will consent to the entry of a judgment or settle any indemnified claim without the prior written consent, which may not be unreasonably withheld, of the indemnified party (in such capacity, the “Indemnified Party”). The Indemnifying Party will use counsel reasonably satisfactory to the Indemnified Party. If the Indemnified Party reasonably determines that a defense or defenses are available to the Indemnified Party that are not available to the Indemnifying Party, and raising the defense or defenses would create a conflict of interest for the counsel defending the claim, the Indemnified Party will be entitled to retain separate counsel for the purpose of raising these defenses at the Indemnified Party’s expense. The Indemnifying Party’s obligations under this Section are independent of its other obligations under the Agreement and shall survive termination of the Agreement.
- Dispute Resolution. In the event of a dispute between the parties, the parties agree that an executive from each company shall negotiate in good faith in an effort to resolve the dispute. If such dispute is not resolved after such discussion then the parties shall arbitrate their dispute as provided herein. Except for claims seeking injunctive relief for which court relief may be sought, or claims involving Intellectual Property Rights or Proprietary Information, the parties shall arbitrate any dispute resulting from or arising as a result of the Agreement. Any such arbitration shall be in accordance with the commercial rules of the American Arbitration Association (“AAA“) and shall be administered by AAA in Las Vegas, Nevada, unless the parties mutually agree on an alternate organization for dispute resolution.
- General. The Agreement represents, as between TrackStreet, Customer and Authorized Distributor, if applicable, the entire understanding regarding the provision, access to and use of the TrackStreet Services, and supersedes all prior proposals, agreements and undertakings related thereto, and any deviation from the Agreement will require the express written consent of TrackStreet. Neither Customer nor Authorized Distributor, if any, may assign its rights or obligations under the Agreement without the prior written consent of TrackStreet. Subject to the foregoing limitation, the Agreement is binding upon and inures to the benefit of the successors and assigns of the parties. The Agreement shall be governed by the laws of the State of Nevada, without regard to conflict of laws provisions, and the parties agree that any action related to or arising out of the Agreement shall be venued solely in a State or Federal court of competent jurisdiction located in the State of Nevada, Clark County, and the parties irrevocably waive any right to object thereto. No failure or delay by a party in enforcing the Agreement shall be construed as a waiver, nor shall any waiver be effective, unless expressly set forth in a writing signed by the waiving party, and such written waiver will not excuse the performance of any acts other than those specifically referred to therein. If any part, term, or provision of the Agreement is held to be illegal, unenforceable, or in conflict with any law of a Federal, state, or local government having jurisdiction over the Agreement, the validity of the remaining portions or provisions are not to be affected thereby. Any notice given pursuant to the Agreement shall be in writing and shall be given by personal service, overnight courier or by first class mail, postage prepaid to the addresses appearing at the beginning of the Agreement, or as changed through written notice to the other party. Notice given by personal service or overnight courier shall be deemed effective on the date it is delivered to the addressee, and notice mailed shall be deemed effective on the third (3rd) business day following its placement in the mail addressed to the addressee. No party shall be liable for failure to perform or delay in performing all or any part of its obligations under the Agreement to the extent that such failure or delay is due to any cause or circumstance reasonably beyond the control of such party including, without limitation, acts of God, pandemic, fire, flood, storms, earthquake, strike or other labor dispute, acts of terrorism, government requirement, or civil or military authority. The party affected by such an event shall promptly notify the other party in writing. The party so affected shall take reasonable steps to resume performance with the least possible delay. Notwithstanding anything in the Agreement to the contrary, and without disclosing the specific terms of the Agreement, TrackStreet may refer to the fact that Customer is a customer of TrackStreet on TrackStreet’s customer lists, advertising and marketing materials, in press releases, presentations and on its website (including use of Customer’s or its customers’ name and logos, subject to any written use restrictions or policies provided by Customer to TrackStreet), and can use portions of the TrackStreet Services (redacting any Confidential Information) as examples of TrackStreet’s work and to use Customer as a reference. The rights granted by Customer within immediately preceding sentence may be revoked by Customer at any time and for any reason without resulting in a breach of the Agreement and do not survive the termination of the Agreement.
Service Level Agreement
1. Support. During the Term of the Agreement, TrackStreet’s support provided to Customer shall comprise the following:
a. Error Corrections. TrackStreet will use commercially reasonable efforts to correct all verifiable and reproducible errors in the TrackStreet Services and Embed Code reported by Customer in writing to TrackStreet. TrackStreet will utilize remote diagnostic procedures whenever possible for error diagnosis and error correction. TrackStreet may not issue error corrections for all errors.
b. Updates. During the Term, TrackStreet may, in its sole discretion, provide Customer with updates that TrackStreet then generally offers to other TrackStreet Services customers. As used herein, updates are periodic improvements or additions to the TrackStreet Services and Embed Code, including error corrections, but excluding any new feature or substantial additional functionality which, in TrackStreet’s sole discretion, is subject to additional fees and/or TrackStreet Services provisions. All updates are issued by TrackStreet and shall become part of the TrackStreet Services and/or Embed Code for the purposes hereof.
2. Service Levels. The TrackStreet Services will be available 24 hours a day, 365 days per year, except for normal down time, Scheduled Maintenance or as otherwise as provided in the Agreement (“Service Levels”). For purposes of these Service Levels, the following definitions shall apply only to the TrackStreet Services:
- “Downtime” shall mean access loss within TrackStreet’s network due to the failure of TrackStreet to provide the TrackStreet Services. Downtime shall not include any access loss or network unavailability during Scheduled Maintenance or due to causes beyond TrackStreet’s reasonable control.
- “Scheduled Maintenance” The TrackStreet Services shall be unavailable for a period of two hours per month in order for TrackStreet to provide maintenance and upgrades to the TrackStreet Services, or other related systems.
c. Service Credit. In the event of Downtime, Customer shall be eligible to receive from TrackStreet a Service Credit as provided herein, as Customer’s sole and exclusive remedy. Service Credits shall correspond to the annual fees for the TrackStreet Service at issue, pro-rated for the amount of Downtime. For example, if a SaaS Service is unavailable for one (1) day during the month of December, Customer shall be entitled to a Service Credit of 1/365 multiplied by the annual fee. The Service Credit shall be issued to Customer in the first renewal period following the Downtime.