Last Updated: May 22, 2018
This TrackTik Software as a Service Terms of Service (the Terms of Service) forms part of the Agreement entered into by TrackTik Software Inc., a corporation with its principal office located at 4200 St-Laurent, #445, Montreal, Quebec (TrackTik) and the customer identified on the Order Form (the Customer). Each of TrackTik and Customer shall individually be referred to as a Party and jointly as the Parties.
These Terms of Service set forth the terms and conditions that govern the provision and use of: (i) the TrackTik SaaS Services described in the Order Form (the TrackTik SaaS Services); (ii) any mobile device software provided by TrackTik to Customer and its Permitted Users through the Apple App Store or Google Play, as applicable(the Mobile Application); and (iii) consulting, implementation, training and other professional services made available by TrackTik in respect of the TrackTik SaaS Services as described in the Order Form (the Professional Services).
(a) Administrator Accounts has the meaning set out in Section 5.
(b) Agreement means these Terms of Service and each Order Form entered into by the Parties, as amended from time to time.
(c) Apple has the meaning set out in Section 13.
(d) Confidential Information has the meaning set out in Section 8(a).
(e) Customer has the meaning set out above.
(f) Customer Datameans any data, information, content, records, and filesthat Customer (or any of its Permitted Users) loads, transmits to or enters into theTrackTik SaaS Services.
(g) Customer User Account has the meaning set out in Section 5.
(h) Disclosure has the meaning set out in Section 8(a).
(i) Feedback has the meaning set out in Section 3(b).
(j) Fees has the meaning set out in Section 7(a).
(k) Google has the meaning set out in Section 14.
(l) Licensed Third Party Technology means third party technology that is licensed under separate license terms and not under this Agreement.
(m) Limited Warranty has the meaning set out in Section 9(b).
(n) Mobile Application has the meaning set out above.
(o) Modifications means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and Modify has a corresponding meaning.
(p) Order Form means each order form entered into by the Parties that incorporates these Terms of Service.
(q) Party has the meaning set out above.
(r) Permitted User has the meaning set out in Section 5.
(s) Personal Information means information about an identifiable individual.
(u) Professional Services has the meaning set out above.
(v) Recipient has the meaning set out in Section 8(a).
(w) Renewal Term has the meaning set out in Section 11(a).
(x) SaaS Metadata has the meaning set out in Section 3(a).
(y) Technical Support Services means the support services described in Section 6.
(z) Term has the meaning set out in Section 11(a).
(aa) Terms of Service has the meaning set out above.
(bb) TrackTik has the meaning set out above.
(cc) TrackTik SaaS Services has the meaning set out above. The term TrackTik SaaS Services includes the Technical Support Services and provision of services through the Mobile Application, but does not include Professional Services.
(dd) TrackTik Services means the TrackTik SaaS Services and the Professional Services, collectively, and any part thereof.
(ee) Website means any websites used by TrackTik to provide theTrackTik SaaS Services, including the websites located at TrackTik.com, tracktik.com, staffr.com, staffr.net or staffr.ca.
(a) Professional Services. TrackTik will use reasonable efforts to provide the Professional Services described in an Order Form in accordance with the applicable requirements described in such Order Form, if any.
(b) Provisioning of the TrackTik SaaS Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, TrackTik will make the TrackTik SaaS Services and the Mobile Application available to Customer on the terms and conditions set out in this Agreement.
(c) Restrictions on Use. Customer must not itself, and will not permit others to:
(i) sub-license, sell, rent, lend, lease or distribute the TrackTik SaaS Services or the Mobile Application or any intellectual property rights therein or otherwise make the TrackTik SaaS Services or the Mobile Application available to others;
(ii) except as expressly agreed by TrackTik, use the TrackTik SaaS Services or the Mobile Application to facilitate or provide timesharing, service bureau use or commercially exploit the TrackTik SaaS Services or the Mobile Application;
(iii) use or access the TrackTik SaaS Services or the Mobile Application in violation of any applicable law or intellectual property right;
(iv) use the TrackTik SaaS Services or the Mobile Application in a manner that threatens the security or functionality of the TrackTik SaaS Services or the Mobile Application;
(v) use the TrackTik SaaS Services or the Mobile Application to create, collect, transmit, store, use or process any Customer Data:
(A) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
(B) that Customer does not have the lawful right to create, collect, transmit, store, use or process; or
(C) that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
(vi) Modify the TrackTik SaaS Services or the Mobile Application;
(vii) reverse engineer, decompile or disassemble the TrackTik SaaS Services or the Mobile Application;
(viii) remove or obscure any proprietary notices or labels on the TrackTik SaaS Services or the Mobile Application, including brand, copyright, trademark and patent or patent pending notices;
(ix) use the TrackTik SaaS Services or the Mobile Application for the purpose of building a competitive product or service;
(x) perform any vulnerability, penetration or similar testing of the TrackTik SaaS Services or the Mobile Application; or
(xi) use the TrackTik SaaS Services, Professional Services or the Mobile Application for any purpose or in any manner not expressly permitted in the Agreement.
(d) TrackTik Services Not a Substitute for Customer Judgement and Experience. Customer acknowledges that the TrackTik Services are provided solely to support Customer’s performance of security services and are not meant to be a substitute for Customer’s independent judgement regarding the manner by which security services should be conducted. TrackTik Services are not meant to be, and should not be used as, a substitute for emergency and law enforcement response.
(e) Suspension of Access; Scheduled Downtime; Modifications. TrackTik may, at its discretion:
(i) suspend Customer’s access to or use of the TrackTik SaaS Services or the Mobile Application or any component thereof:
(A) for scheduled maintenance;
(B) if Customer or any Permitted User violates any provision of this Agreement; or
(C) to address any emergency security concerns; or
(ii) Modify the TrackTik SaaS Services or the Mobile Application. Customer is required to accept all patches, bug fixes and updates made by or on behalf of TrackTik to the TrackTik SaaS Services and the Mobile Application.
(f) Licensed Third Party Technology. The TrackTik SaaS Services and the Mobile Application require the use of Licensed Third Party Technology, including Google Maps. Customer will accept and comply with the license terms for Licensed Third Party Technology, as applicable. Customer is responsible for separately obtaining or licensing the hardware, software and systems (e.g. desktop computers, cell phones, current versions of internet browsers) required to access the TrackTik SaaS Services and the Mobile Application. Without limiting the generality of the foregoing, Licensed Third Party Technology may include any APIs provided by third parties that provide integrations between the TrackTik SaaS Services and third party software used by Customer to manage its business.
Ownership; Reservation of Rights
(a) Customer retains all ownership and intellectual property rights in and to Customer Data. Customer grants to TrackTik a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right to use, process and transmit Customer Data to provide the TrackTik Services. TrackTik may remotely track Customer’s and its Permitted Users’ use of the TrackTik Services and collect and analyze metadata and other information relating to the provision, use and performance of the TrackTik Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom) (the SaaS Metadata), and during and after the Term of this Agreement, TrackTik may: (i) use the SaaS Metadata to improve and enhance the TrackTik Services and for other development, diagnostic and corrective purposes in connection with the TrackTik Services and other TrackTik offerings; and (ii) disclose the SaaS Metadata and other data solely in aggregated or other de-identified form (i.e. specific clients and persons are not identified) in connection with its business.
(b) TrackTik or its licensors retain all ownership and intellectual property rights in and to: (i) the TrackTik Services (including the Mobile Application); (ii) anything developed or delivered by or on behalf of TrackTik under this Agreement; and (iii) any Modifications to the foregoing (i) and (ii). If Customer provides suggestions, comments or other feedback (Feedback) to TrackTik about the TrackTik Services or other products and services provided by TrackTik, TrackTik shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit without obligation or restriction.
(c) All rights not expressly granted by TrackTik to Customer under this Agreement are reserved.
Customer User Account
Upon Customer’s request and except as otherwise specified in the Order Form, TrackTik will issue one superintendent account and one or more administrator accounts (the superintendent account and the administrator accounts are, collectively, the Administrator Accounts) to Customer that provides Customer with the capability to create end user accounts (each, a Customer User Account) for employees and independent contractors that Customer wishes to have access to and use of the TrackTik SaaS Services through the Mobile Application (each, and each other person with an Administrator Account is, a Permitted User). Customer will ensure that Permitted Users only use the TrackTik SaaS Services through the Customer User Account. Customer will not allow any Permitted User to share the Customer User Account with any other person. Customer is responsible for identifying and authenticating all Permitted Users and for Permitted Users’ compliance with this Agreement. Customer will promptly notify TrackTik of any actual or suspected unauthorized use of the TrackTik SaaS Services or the Mobile Application. TrackTik reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose.
(a) TrackTik will use reasonable efforts to provide technical support for the TrackTik SaaS Services as set out in TrackTik’s standard support schedule: https://www.tracktik.com/sla/
(b) TrackTik has implemented and maintains industry standard practices and procedures to prevent unauthorized access to Customer Data. Further information is available upon Customer’s request.
Fees and Payment
(a) Fees. Customer will pay to TrackTik the fees described in each Order Form (the Fees). If Customer’s use of the TrackTik SaaS Services exceeds the allocated number of Permitted Users set forth on an Order Form or if Customer’s use of the TrackTik Services otherwise requires the payment of additional fees (pursuant to the terms of this Agreement), Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement. Unless otherwise noted in the applicable Order Form, all Fees are identified in Canadian dollars and are payable in advance.
(b) Changes to the Fees. TrackTik reserves the right to change the Fees and institute new charges at the beginning of each Renewal Term.
(c) Invoicing. TrackTik will prepare and send to the Customer, at the then-current contact information on file with TrackTik, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice or in the applicable Order Form, all invoiced amounts are due upon receipt of the invoice.
(d) Disputed Invoices or Charges. If Customer believes TrackTik has charged or invoiced Customer incorrectly, Customer must contact TrackTik no later than45 days after having been charged by TrackTik or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
(e) Late Payment. Customer may not withhold or setoff any amounts due under this Agreement. TrackTik reserves the right to suspend Customer’s access to and use of the TrackTik SaaS Services and the Mobile Application and any delivery of Professional Services until all due amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.
(f) Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of TrackTik.
(g) Suspension. Any suspension of the TrackTik Services by TrackTik pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.
(a) Definitions. For the purposes of this Section, a Party receiving Confidential Information will be the Recipient, the Party disclosing such information will be the Discloser and Confidential Information means information marked or otherwise identified in writing by a Party as proprietary or confidential, or information that, under the circumstances surrounding the disclosure, the Recipient should recognize as being confidential; provided that the Discloser’s Confidential Information does not include,except with respect to Personal Information: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.
(b) Confidentiality Covenants. The Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a need to know and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take reasonable precautions to safeguard the other Party’s Confidential Information. Those precautions will be at least as protective as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
(c) Exceptions to Confidentiality. Notwithstanding Section 8(b), the Recipient may disclose the Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of TrackTik, to potential assignees, acquirers or successors of TrackTik if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of TrackTik.
Warranty; Disclaimer; Indemnity
THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING QUEBEC, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LEGAL WARRANTIES, CONDITIONS OR REPRESENTATIONS. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOLLOWING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY AND YOU MAY HAVE ADDITIONAL RIGHTS.
(a) Customer Warranty. Customer represents and warrants to, and covenants with TrackTik that: (i) for Permitted Users’ use of the TrackTik SaaS Services (including geolocation and GPS-tracking functionality through the Mobile Application); and (ii) for Personal Information contained in Customer Data, Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable TrackTik to provide the TrackTik SaaS Services and the Mobile Application, including with respect to the access, collection, use, disclosure processing, storage and transmission of Personal Information by or to TrackTik and to or from all applicable third parties.
(b) GENERAL DISCLAIMER. TrackTik represents and warrants that the TrackTik SaaS Services will: (i) conform to all material operational features as described in the applicable Order Form; and (ii) be free of errors and defects that materially affect the performance of such features (the Limited Warranty), provided that Customer promptly notifies TrackTik in writing of any non-conformity, error, or defect. Customer’s sole and exclusive remedy for breach of the Limited Warranty shall be, at TrackTik’s option, the correction of non-conforming TrackTik SaaS Services at TrackTik’s expense or a pro-rated refund of the Fees paid by Customer for the non-conforming TrackTik SaaS Services from the date that TrackTik was notified of such non-conformity, error or defect. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TrackTik DOES NOT WARRANT THAT THE TrackTik SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE TrackTik SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE TrackTik SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY TrackTik TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”.TO THE EXTENT PERMITTED BY APPLICABLE LAW, TrackTik HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, TrackTik EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE TrackTik SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TRACKTIK IS NOT RESPONSIBLE FOR ANY THIRD PARTY SOFTWARE OR SYSTEMS (INCLUDING LICENSED THIRD PARTY TECHNOLOGY) USED BY CUSTOMER IN ORDER TO ACCESS AND USE THE TRACKTIK SAAS SERVICES.
(c) Customer Indemnity. Customer will defend, indemnify and hold harmless TrackTik, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all losses (including damages, recoveries, deficiencies, interest, penalties and legal fees) from third party claims directly or indirectly arising from or in connection with: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; or (iii) use of the TrackTik Services (or any part thereof) by Customer or any Permitted User in combination with any third party software, application or service not provided by TrackTik.
(d) TrackTik Indemnity. TrackTik will defend, indemnify and hold harmless Customer, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all losses (including damages, recoveries, deficiencies, interest, penalties and legal fees) arising out of a third party claim made against Customer that the TrackTik SaaS Services infringe on any intellectual property right of a third party; provided that TrackTik is notified in writing of such claim promptly after such claim is made upon Customer. TrackTik shall have no liability or obligation if the claim arises from: (i) any alteration or modification to the TrackTik SaaS Services by Customer, (ii) any third party software or technology that is not proprietary to TrackTik or any combination of the TrackTik SaaS Services by Customer with other software or technology not furnished by TrackTik, or (iii) any use by Customer of the TrackTik SaaS Services that is prohibited by this Agreement or otherwise outside the scope of use for which the TrackTik SaaS Services are intended.
(e) Options for Infringement Claims. If Customer is enjoined from using the TrackTik Services, or if TrackTik believes that the TrackTik Services may become the subject of a claim of intellectual property infringement, TrackTik, at its option and expense, may: (i) procure the right for Customer to continue to use the TrackTik Services; (ii) replace or modify the TrackTik Services so as to make them non-infringing, provided that the TrackTik Services continue to conform to the descriptions and specifications provided in the applicable Order Form; or (iii) terminate the applicable Order Form, in which case TrackTik shall refund to Customer any and all Fees paid by Customer for those TrackTik Services not provided by TrackTik. Section 9(d) and 9(e) set out TrackTik’s sole liability, and Customer’s sole remedy, for any infringement by the TrackTik Services of any intellectual property right of any third party.
(f) Indemnity Procedure. The indemnified Party will fully cooperate with the indemnifying Party in the defense of any claim defended by the indemnifying Party pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of the indemnified Party.
Limitation of Liabilities
THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING QUEBEC, DO NOT ALLOW THE LIMITATION OF LIABILITY OR CERTAIN DAMAGES. IF THESE LAWS APPLY YOU, SOME OR ALL OF THE BELOW LIMITATIONS MAY NOT APPLY AND YOU MAY HAVE ADDITIONAL RIGHTS. The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
(a) AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF TrackTik IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE TrackTik SERVICES IN THE PRIOR 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL TrackTik’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
(b) TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL TrackTik BE LIABLE TO CUSTOMER OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
Term and Termination
(a) Term. This Agreement will commence on the Effective Date and continue to be in effect for the time-period identified in the Order Form (the Term). Unless otherwise set out in the Order Form, the Term will automatically renew for successive one-year terms (each, a Renewal Term) unless either Party provides the other Party with written notice of its intention not to renew not less than 60 days prior to the end of the then current Term.Unless otherwise expressly agreed in the Order Form or these Terms of Service, Customer will be responsible for payment of all Fees for the TrackTik Services until the end of the Term (including any Renewal Term) regardless of the reason for termination of the Agreement.
(b) Termination for Cause. Either Party may, in addition to other relief, suspend or terminate this Agreement if the other Party commits a material breach of any provision of this Agreement and fails within 30 days after receipt of notice of such breach to correct such material breach.
(c) Transition Services. Upon termination of this Agreement, Customer will no longer have rights to access or use the TrackTik Services. Within 90 days following termination, TrackTik will, at Customer’s option, return to Customer or delete or otherwise render inaccessible any Customer Data that remains in the hardware or systems used by TrackTik to provide theTrackTik SaaS Services. In addition, TrackTik will perform additional transition services that are mutually agreed upon by TrackTik and Customer in a statement of work that is added to an Order Form.
(d) Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 7 (Fees and Payment), Section 8 (Confidential Information), Section 9 (Warranty; Disclaimer; Indemnity), Section 10 (Limitation of Liabilities), Section 11(e) (Survival), and Section 12 (General Provisions).
(a) Notices. Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be in writing and sent: (i) if to TrackTik, to the following address:4200 Saint-Laurent #445, Montréal, QC H2W 2R2, Canada Attention: Notices Email: [email protected] and (ii) if to Customer, to the current postal or email address that TrackTik has on file with respect to Customer. TrackTik may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with TrackTik current at all times during the Term.
(b) Assignment. Customer will not assign this Agreement to any third party without TrackTik’s prior written consent. TrackTik may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. Any assignment in violation of this Section will be void. This Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
(c) Choice of Law. This Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the Province of Quebecand the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Montreal, Quebec, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent TrackTik from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
(d) Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative. The terms include and including mean, respectively, include without limitation and including without limitation. The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms consent or discretion, when used in respect of TrackTik in this Agreement means the right of TrackTik to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to Customer.
(e) Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond TrackTik’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving TrackTik’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites.
(f) Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
(g) Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
(h) Independent Contractors. TrackTik’s relationship to Customer is that of an independent contractor, and neither Party is an agent, employee or partner of the other. Neither Party will have, and will not represent to any third party that it has, any authority to act on behalf of the other Party.
(i) Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications, whether written or oral.
(j) Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby.
(k) English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des Parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
The following provisions apply to the use of the TrackTik SaaS Services through a Mobile Application. As used below, We or Us refers to TrackTik and You refers to the Customer or Permitted User accessing the TrackTik SaaS Services through the Mobile Application.
Apple App Store Additional License Terms
If the Mobile Application is provided to you through the Apple Inc. (Apple Inc. together with all of its affiliates, Apple) App Store, the following terms and conditions apply to you in addition to all the other terms and conditions of this Terms of Service:
(a) The parties acknowledge this Terms of Service is concluded between you and us, and not with Apple. The responsibility for the Mobile Application and content thereof is governed by this Terms of Service.
(b) Notwithstanding Section, you may use the Mobile Application only on an iPhone or iPod touch that you own or control.
(c) You and we acknowledge that Apple has no obligation to furnish any maintenance or support services with respect to the Mobile Application.
(e) Any claim in connection with the Mobile Application related to product liability, a failure to conform to applicable legal or regulatory requirements, claims under consumer protection or similar legislation is governed by this Terms of Service, and Apple is not responsible for such claim.
(f) Any third party claim that the Mobile Application or your possession and use of the Mobile Application infringes that third party’s intellectual property rights will be governed by this Terms of Service, and Apple will not be responsible for the investigation, defense, settlement and discharge of such intellectual property infringement claim.
(g) You represent and warrant that you are not: (i) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist supporting country; or (ii) listed on any U.S. Government list of prohibited or restricted parties.
(h) You may contact us in writing regarding any notices, questions, complaints, or claims with respect to the Mobile Application.
4200 Saint-Laurent #445,
Montréal, QC H2W 2R2, Canada
(i) Apple is a third party beneficiary to this Terms of Service and may enforce this Terms of Service against you. (j) If any of the terms and conditions in this Terms of Service are inconsistent or in conflict with Apple’s applicable instructions for Minimum Terms for Developer’s End User License Agreement or the App Store Terms of Service as of the Effective Date, the terms and conditions of Apple’s instructions for Minimum Terms for Developer’s End User License Agreement or App Store Terms of Service, as applicable, will apply to the extent of such inconsistency or conflict.
If the Mobile Application is provided to you through the Google Inc. (Google Inc. together with all of its affiliates, Google) Google Play, the following terms and conditions apply to you in addition to all the other terms and conditions of this Terms of Service:
(a) You acknowledge that Google is not responsible for providing support services for the Mobile Application.