Please note we have updated our Terms of Service. All agreements signed after the Oct 27, 2020 will be governed by this new version. You can use this link to access the previous version.
Last Updated: Oct 27, 2020
These TrackTik Terms of Service (the “Terms of Service”), in conjunction with the applicable Order Form, form the Agreement entered into by and between:
TrackTik Software Inc., a corporation with its principal office located at 4200 St-Laurent, #445, Montreal, Quebec, Canada, H2W 2R2; or
If specified in the Order Form, for certain Customers: TrackTik UK Ltd., a limited liability company with its principal office located at 5 New Street Square, London, United Kingdom, EC4A 3TW
the customer identified on the Order Form (“Customer”).
WHEREAS, TrackTik is the provider of the Services and Professional Services (as defined below); and
WHEREAS, Customer desires to access and use the Services and have TrackTik perform the Professional Services, all in accordance with the terms and conditions of the Agreement;
NOW, THEREFORE, in consideration of the foregoing, and in reliance on the mutual agreements and consideration contained herein, the parties agree as follows:
In addition to any other definitions that may be found throughout these Terms of Service which will be recognizable as they will be bolded and in quotation marks, the following definitions apply:
“Affiliate.” With respect to a party, any parent or subsidiary corporation, and any corporation or other business entity controlling, controlled by or under common control with such party; where “control” and its derivatives means the legal or beneficial ownership, directly or indirectly, of 50% or more of the shares (or other ownership interest, if not a corporation) of such entity ordinarily having voting rights or control in fact through the exercise of rights pursuant to an agreement.
“Agreement”. These Terms of Service (including any external terms or policy incorporated by reference herein) together with each Order Form entered into by the parties, as amended from time to time.
“API.” The TrackTik Application Programming Interface through which the Customer may be accessing the Services.
“Authorized Users.” The identifiable unique persons consisting of Customer’s employees, third party consultants, outsourcers, contractors, and other service providers who are authorized to access and use, as applicable, the Services and/or the Mobile Application.
“Customer Data.” Data and other information that Customer (or any of its Authorized Users) loads, transmits to, or enters into the Services via any means.
“Intellectual Property Rights.” (a) Any and all proprietary rights provided under: (i) patent law; (ii) copyright law (including moral rights); (iii) trade-mark law; (iv) design patent or industrial design law; (v) semi-conductor chip or mask work or integrated circuit topography law; or (vi) any other statutory provision or common law principle applicable to the Agreement, including trade secret law; (b) any and all applications, registrations, licenses, sub-licenses, franchises, agreements or any other evidence of a right in any of the foregoing; and (c) any and all licenses and waivers and benefits of waivers of the intellectual property rights set out in (a) and (b) above, all future income and proceeds from the intellectual property rights set out in (a) and (b) above, and all rights to damages and profits by reason of the infringement or violation of any of the intellectual property rights set out in (a) and (b) above.
“Mobile Application.” Any mobile applications for iOS or Android made available by TrackTik for use with the Services.
“Order Form.” A written document indicating that it is an “order form” which specifies the Services and Professional Services to be provided and the Fees to be paid, and which incorporates the terms of these Terms of Service and is mutually agreed upon and duly executed by the parties, which shall be binding upon the parties.
1.9 “Personal Information.” Information about an identifiable individual.
1.10 “Professional Services.” Any consulting, implementation, training, or other professional services made available by TrackTik to Customer as described in an Order Form.
“Services.” The software services through which TrackTik hosts and makes available the TrackTik Technology to Customer and its Authorized Users via the Sites, API or other means, as specified in the applicable Order Form.
“Sites.” Websites owned and / or used by TrackTik to provide the Services, including but not limited to https://www.tracktik.com or any subdomain or sub-page thereof, or any custom URL where the Services are made available.
“TrackTik Technology.” The TrackTik software specified in the Order Form, and any updates or upgrades to such software which may be generally released by TrackTik to its customers from time to time.
2. Services And Professional Services; Restrictions
2.1 Services. Subject to Customer’s compliance with the terms and conditions of the Agreement, TrackTik will make the Services and the Mobile Application available to Customer and its Authorized Users on the terms and conditions set out in the Agreement.
2.2 Modifications to the Services. TrackTik may, at its sole discretion, modify the Services or the Mobile Application, provided that such modifications do not materially decrease the functionality provided by the Services and Mobile Application. Customer is required to accept all patches, bug fixes and updates made by or on behalf of TrackTik to the Services and the Mobile Application.
2.3 Suspension of the Services. TrackTik may, at its sole discretion, suspend Customer’s and Authorized Users’ access to or use of the Services or the Mobile Application or any component thereof for scheduled maintenance, if Customer or any Authorized User violates any provision of this Agreement, or to address any emergency security concerns.
2.4 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.
2.5 Restrictions on Use of Services. Customer must not itself, and will not permit others to: (i) sub-license, sell, rent, lend, lease or distribute the Services or the Mobile Application or any Intellectual Property Rights therein or otherwise make the Services or the Mobile Application available to others except as provided for in the Agreement; (ii) except as expressly agreed by TrackTik, use the Services or the Mobile Application to facilitate or provide timesharing, service bureau use or commercially exploit the Services or the Mobile Application; (iii) use or access the Services or the Mobile Application in violation of any applicable law or Intellectual Property Right; or (iv) use the Services or the Mobile Application in a manner that threatens the security or functionality of the Services or the Mobile Application.
2.6 Restrictions on Customer Data. Customer must not itself, and will not permit others to use the Services or the Mobile Application to create, collect, transmit, store, use or process any Customer Data: (i) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (ii) that Customer does not have the lawful right to create, collect, transmit, store, use or process; or (iii) that violates any applicable laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any third party (including any moral right, privacy right or right of publicity).
2.7 General Restrictions. Customer must not itself, and will not permit others to: (i) modify the Services or the Mobile Application; (ii) reverse engineer, decompile or disassemble the Services or the Mobile Application; (iii) remove or obscure any proprietary notices or labels on the Services or the Mobile Application, including brand, copyright, trademark and patent or patent pending notices, unless otherwise authorized to do so by TrackTik; (iv) use the Services or the Mobile Application for the purpose of building a competitive product or service; (v) perform any vulnerability, penetration or similar testing of the Services or the Mobile Application, unless otherwise authorized to do so by TrackTik; or (vi) use the Services, Professional Services or the Mobile Application for any purpose or in any manner not expressly permitted in the Agreement.
3. Customer Acknowledgments And Obligations Regarding The Services
3.1 Services Not a Substitute for Customer Judgement and Experience. Customer acknowledges that the Services are provided solely to support Customer’s performance of security services and are not meant to be a substitute for Customer’s independent judgment regarding the manner by which security services should be conducted. The Services are not meant to be, and should not be used as, a substitute for emergency and law enforcement response.
3.2 Access to the Services. The Services will be rendered in a manner that will permit Authorized Users to access the Services in accordance with the applicable requirements specified in the applicable Order Form. TrackTik will permit access to the Services only through the Sites or via API or other means using usernames and passwords assigned by TrackTik, and the Customer acknowledges and agrees that they shall not transfer such usernames and passwords to anyone who is not authorized to access the Services. Customer may also assign usernames and passwords to Authorized Users, further to Section 3.8 below.
3.5 Hardware. Customer acknowledges and agrees that they are responsible for separately obtaining or licensing the hardware, including necessary software and systems (e.g. desktop computers, cell phones, current versions of internet browsers, collectively “Hardware”) required to access the Services and the Mobile Application. Customer shall ensure that all Hardware as is up to date as required to use the latest versions of the Services and Mobile Application. TrackTik shall not be responsible for any damages, pecuniary or otherwise, resulting or arising from the Services or Mobile Application not functioning or having reduced functionality as a result of Customer having insufficiently updated Hardware.
3.6 Security. Customer acknowledges and agrees that they will be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of its link to the Internet. TrackTik will implement reasonable security procedures consistent with prevailing industry standards to protect Customer Data from unauthorized access (the “Security Standard”). Provided that TrackTik is in compliance with the Security Standard, the parties agree that TrackTik will not be held responsible or liable for situations: (a) where data or transmissions are accessed by third parties through illegal or illicit means; or (b) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to TrackTik at the time or any other matter beyond its control. TrackTik will promptly report to Customer any unauthorized access to Customer Data upon discovery by TrackTik, and TrackTik will use diligent efforts to promptly remedy any breach of security that permitted such unauthorized access. In the event notification to persons included in such Customer Data is required, the Customer will be solely responsible for any and all such notifications at its expense.
3.7 Technical Contact. Customer acknowledges that it shall designate one of its employees as its principal contact for communicating with TrackTik regarding technical issues under the Agreement. Customer may change their technical contact from time to time by written notice to TrackTik.
3.8 User Accounts. 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 Services through the Mobile Application (each, and each other person with an Administrator Account is, an Authorized User). Customer will ensure that Authorized Users only use the Services through the Customer User Account. Customer will not allow any Authorized User to share the Customer User Account with any other person.
3.9 Responsibility for Authorized Users. Customer is responsible for identifying and authenticating all Authorized Users, for Authorized Users’ compliance with this Agreement, and for Authorized Users’ use or misuse of the Services or Mobile Application. The customer will promptly notify TrackTik of any actual or suspected unauthorized use of the Services or the Mobile Application including by anyone who is not an Authorized User. TrackTik reserves the right to suspend, deactivate, or replace any Administrator Account or Customer User Account if it determines that the Administrator Account or Customer User Account may have been used for an unauthorized purpose.
4. Technical Support And Backups
4.1 Technical Support. TrackTik will provide technical support in the form of responses to Services-related questions by email or telephone at no additional charge. If additional Professional Services are required for the proper use and operation of the Services or if other Professional Services are requested by Customer, such services will be provided pursuant to a new Order Form entered into by the parties. Except as set out in the applicable Order Form, TrackTik will provide such Professional Services on a time and materials (“T&M”) basis as follows: (a) Customer will pay TrackTik for all the time spent performing such Professional Services (including all travel time), plus materials, taxes, and reimbursable expenses; and (b) the rates for such Professional Services will be TrackTik’s then-current standard rates when such services are provided, which is specified in the Order Form. Any monetary amount stated in an estimate for T&M services will be an estimate only for Customer’s budgeting and TrackTik’s resource scheduling purposes. If the estimate is exceeded, TrackTik will cooperate with the Customer to provide continuing Professional Services on a T&M basis. TrackTik will invoice Customer for T&M Professional Services on a monthly basis. All such charges will be payable upon receipt of invoice by Customer. TrackTik reserves the right to require a non-refundable fee and/or cost deposit prior to the commencement of any such Professional Services.
4.2 Backups. At no additional charge to Customer, TrackTik will make daily incremental backups (each, a “Daily Backup”) of Customer Data archived with the TrackTik Technology. Daily Backups are encrypted and stored off-site in multiple secure facilities designed to store and maintain backups for emergency use. Daily Backups are deleted after 10 days.
5. Term And Termination Of Agreement
5.1 Term. The term of the Agreement will commence as of the Effective Date listed in the Order Form and will continue for the period listed in the Order Form (the “Initial Term”). The Initial Term will automatically renew for an additional term, the length of which is specified in the Order Form (the “Renewable Term”) unless either party notifies the other in writing not less than 60 days prior to the expiration of the current term of its intention not to renew, or other such period as specified in the Order Form. Either the Initial Term or any Renewal Term may be referred to in this Agreement as a “Term”.
5.2 Termination for Cause. If either party fails to comply with any of the material terms and conditions of the Agreement (including, in the case of Customer, failure to pay any Fee or other amounts payable to TrackTik under the Agreement when due), the non-defaulting party may terminate the Agreement (including any or all Order Forms) upon 15 days’ written notice to the defaulting party specifying any such breach unless within the period of such notice all breaches specified therein will have been remedied.
5.3 Effects of Termination. For clarity, termination for any reason terminates both the Terms of Service and any outstanding Order Form. Upon the termination of the Agreement: (a) Customer will immediately cease all access, receipt and use of the Services and Mobile Application under any outstanding Order Form; (b) all rights and licenses granted to Customer under the Agreement be immediately revoked; (c) within 30 days following termination, Customer will return any TrackTik property and all copies thereof, in its possession or under its control to TrackTik or at the direction of TrackTik destroy such materials; and (d) each party will return or destroy Confidential Information of the other party in accordance with this Agreement.
5.4 Surviving Provisions. All provisions of these Terms of Service which by their nature should survive termination the Agreement shall survive termination, including without limitation intellectual property provisions, disclaimers, indemnification, and limitations of liability
5.5 Transition Services. Upon termination of the Agreement, Customer will no longer have rights to access or use the 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 the 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.
6.1 Fees. Customer will pay to TrackTik the fees and charges set out in each Order Form (the “Fees”) in accordance with the payment terms set out therein. Fees are payable in advance. The Fees may include subscription Fees for the Services as well usage Fees, which shall be specified in the Order Form. Unless otherwise specified in the applicable Order Form, all Fees are non-refundable and TrackTik will have no obligation to issue refunds or credits for any unused Services, partial months or in connection with any downgrade, cancellation, termination or otherwise.
6.2 Automatic Increase to Fees Upon Renewal. At the beginning of each Term following the Initial Term, the Fees charged for the Services and Professional Services on any Order Form in effect at the time of the renewal of the Agreement shall automatically be increased by 5% (five percent).
6.3 Taxes; Currency. The Fees and other amounts payable by Customer listed in the Order Form in accordance with the Agreement do not include any applicable sales, use, excise, GST, HST, value-added or other taxes or duties, which shall be added at the time of payment, and which Customer is solely responsible for paying. The currency of the Fees shall be specified in the applicable Order Form.
6.4 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.
6.5 Additional Users. If Customer’s use of the Services exceeds the allocated number of Authorized Users set forth on a Order Form or if Customer’s use of the Services otherwise requires the payment of additional Fees (pursuant to the terms of the Agreement), Customer will be billed for such usage and Customer will pay the additional Fees in accordance with the Agreement. Alternatively, Customer may elect to purchase rights for additional Authorized Users to access the Services by entering into a new Order Form with TrackTik.
6.6 Expenses. Any additional expenses that are incurred by TrackTik in providing the Services on behalf of Customer, and for which TrackTik seeks reimbursement, will be pre-approved in writing by Customer.
6.7 Disputed Charges. If Customer believes TrackTik has charged or invoiced Customer incorrectly, Customer must contact TrackTik no later than 90 days after having been charged by TrackTik or receiving such an 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.
6.8 No Withholding or Setoff; Late Payment. Customer may not withhold or setoff any amounts due under the Agreement. 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.
6.9 Right to Audit. Upon 10 days prior written notice and during Customer’s regular business hours, TrackTik may inspect, either directly or through the use of a third party, Customer’s records related to Customer’s use of the Services to ensure that Customer complies with the Agreement. Customer will pay TrackTik for any underpaid Fees within 30 days of the issuance of the audit findings.
6.10 Suspension of Services for Non-Payment of Fees. In the event of unpaid fees by Customer, TrackTik reserves the right to suspend Customer’s access to and use of the TrackTik Services and the Mobile Application further to this sub-section. In the event of non-payment of Fees, TrackTik shall provide a notice giving Customer 10-day notice to remedy the non-payment. In the event the non-payment is not remedied within the 10-day notice period, TrackTik reserves the right to automatically suspend Customer’s access to and use of the TrackTik Services and the Mobile Application without any further notice to Customer.
7. Proprietary Rights Ownership
7.1 TrackTik Property. TrackTik (or its licensors, as applicable) retains all right, title, and interest (including Intellectual Property Rights) in and to: (a) the Services, Mobile Application, Sites (if owned by TrackTik), and TrackTik Technology (including all data, content, and other information and materials contained therein other than Customer Data); (b) anything else provided or made available by TrackTik pursuant to the Agreement; and (c) any corrections, bug fixes, enhancements, adaptations, translations, derivative works, modifications or new versions of the foregoing (a) and (b). No rights are granted to Customer pursuant to the Agreement other than as expressly set out in the Agreement. The Services are licensed, not sold.
7.2 Customer Ownership and Licenses. Customer retains all right, title, and interest (including Intellectual Property Rights) in and to Customer Data and any branding elements (including but not limited to Customer logos) used with permission of the Customer for TrackTik to include in the Services (the “Customer Branding”). Customer grants to TrackTik a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right to use, process and transmit Customer Data and Customer Branding to provide the Services. TrackTik may remotely track Customer’s and it’s Authorized Users’ use of the Services and collect and analyze metadata and other information relating to the provision, use, and performance of the Services as it relates to Customer and its Authorized Users’ (the “Metadata”), and may create anonymized and aggregated versions of Customer Data (i.e. specific persons are not identified, the “Unidentifiable Customer Data”). During and after the term of the Agreement, Customer grants TrackTik a nonexclusive, perpetual, worldwide, royalty-free, irrevocable, fully paid-up right to: (a) use, process, and transmit the Metadata and Unidentifiable Customer Data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other TrackTik offerings; and (b) disclose the Metadata and the Unidentifiable Customer Data in connection with its business.
7.3 Feedback. If Customer chooses to communicate to TrackTik (via any means) suggestions for improvements to any of the Services or TrackTik’s Products, or TrackTik’s business generally (collectively, “Feedback”), TrackTik shall own all right, title, and interest in and to the Feedback and will be entitled to use the Feedback without restriction. Customer hereby irrevocably assigns all right, title and interest in and to the Feedback to TrackTik and waives in favor of TrackTik, its successors and assigns all moral rights in the Feedback, and agrees to provide TrackTik such assistance as TrackTik may require to document, perfect, and maintain TrackTik’s rights to the Feedback. The customer acknowledges and agrees that, by providing any Feedback to TrackTik, they are not entitled to any compensation or reimbursement of any kind from TrackTik under any circumstances.
8. License For Mobile Application And Related Clauses
8.1 Mobile Application License. The Mobile Application is licensed, not sold. TrackTik grants Customer and its Authorized Users the non-exclusive, non-transferable, non-sublicensable, limited right and license to download, install and use the Mobile Application onto a handheld device solely and exclusively for use under these Terms of Service, and as permitted by the usage rules set forth in the App Media Services Terms and Conditions for the Mobile Application for iOS or the Google Play Terms of Service for the Mobile Application for Android.
8.3 Android Mobile Application. If the Mobile Application is provided to Customer or Authorized Users through the Google Inc. (Google Inc. together with all of its affiliates, “Google”) Play Store, the following terms and conditions apply in addition to all the other terms and conditions of these Terms of Service related to the Mobile Application: (a) Customer acknowledges that Google is not responsible for providing support services for the Mobile Application; and (b) if any of the terms and conditions in these Terms of Service are inconsistent or in conflict with the Google Play Terms of Service as of the date these Terms of Service were accepted, the terms and conditions of the Google Play Terms of Service will apply to the extent of such inconsistency or conflict.
10. Service Level Agreement
TrackTik will use reasonable efforts to provide the Services in accordance with the Service Level Agreement located at https://www.tracktik.com/sla/, which is incorporated by reference herein.
11. Mutual Exchange Of Confidential Information
Definition of Confidential Information. For purposes of the Agreement, “Confidential Information” means: (a) in the case of TrackTik: (i) all trade secrets, know how, software, software updates and enhancements, and other financial, business, or technical information of TrackTik or of any of its Affiliates, licensees, suppliers, and contractors that is disclosed by TrackTik, or on its behalf, in relation to the Agreement; (ii) terms and conditions of the Agreement; and (iii) non-public aspects of TrackTik’s Sites and the operation thereof, TrackTik Technology, and the Services, Mobile Application, and Professional Services provided by TrackTik, and TrackTik’s business and technical information, and data; (b) in the case of Customer, non-public Customer Data and non-public aspects of Customer’s technology, computer programs, and business and technical information, and data; and (c) in the case of both parties, all other information which is provided by a party (the “Owner”) to the other party (the “Recipient”) and is marked as confidential or which, by the nature of the circumstances surrounding the disclosure, ought to be treated as confidential. Confidential information does not include information (other than Personal Information) that: (a) is in the possession or control of Recipient at the time of its disclosure hereunder; (b) is, or becomes, publicly known, through no wrongful act of Recipient; (c) is received by Recipient from a third party free to disclose it without obligation to Owner; or (d) is independently developed by a party as evidenced by its written and dated records and without any breach of the Agreement.
Restrictions on Use and Disclosure. Recipient may use Confidential Information only for the purpose of performing its obligations under the Agreement and will protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance but in any case, using no less than a reasonable degree of care given the nature of the Confidential Information. The recipient may disclose Confidential Information received hereunder only as reasonably required to perform its obligations or exercise its rights under the Agreement and only to its employees, representatives, and contractors who have a need to know for such purposes and who are bound by signed agreements to protect the received Confidential Information from unauthorized use and disclosure.
Exclusions. Each Recipient may, where permitted by applicable law, disclose Confidential Information of the Owner to the extent required by a governmental or regulatory authority or otherwise as required by applicable laws and regulations (provided that the Recipient must first give the Owner reasonable notice of such compelled disclosure so that the Owner has an opportunity to take such steps as it desires to challenge or contest such disclosure or seek a protective order). In addition, each Recipient may, where permitted by applicable law, disclose Confidential Information of the Owner: (a) to its professional advisors as required to enable such persons or entities to provide professional advisory services; and (b) to potential permitted assignees or successors but only as is necessary in connection with a potential corporate transaction involving the business or assets of the Recipient; provided in each case, that such person or entity is subject to confidentiality obligations in respect of such Confidential Information that are no less stringent than those contained in this Section 11.
Return/Destruction of Confidential Information. Upon the expiration or termination of the Agreement or the Owner’s earlier request, the Recipient will, at the Owner’s option, return or destroy Confidential Information of the Owner. Notwithstanding the foregoing, it is understood that the Recipient’s computer systems may automatically back-up the Confidential Information of the Owner. To the extent that such computer back-up procedures create copies of any such Confidential Information, the Recipient may retain such copies in its regular archival or back-up computer storage system(s) for the period that such archives or back-ups are normally kept by the Recipient. All archived or backed-up Confidential Information will be subject to the remaining confidentiality restrictions under the Agreement.
12. Customer Representations And Warranties
12.1 Customer represents and warrants to, and covenants with TrackTik that the performance of its obligations under the Agreement and the use of the Services and Mobile Application (by Customer and its Authorized Users) will not violate any applicable laws or regulations.
12.2 Customer represents and warrants to, and covenants with TrackTik that the execution, delivery, and performance of the Agreement: (a) is within its corporate powers; (b) has been duly authorized by all necessary corporate action; and (c) does not and will not contravene or constitute a default under, and is not and will not be inconsistent with, any judgment decree or other, or any contract, agreement, or other undertakings, applicable to Customer.
12.3 Customer represents and warrants to, and covenants with TrackTik that: (a) for Authorized Users’ use of the Services and Mobile Application (including geolocation and GPS-tracking functionality through the Mobile Application); and (b) for Personal Information contained in Customer Data, Customer has provided all notices and disclosures (including to each Authorized 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 Services and the Mobile Application, including with respect to the collection, storage, access, use, disclosure and transmission of personal information by or to TrackTik and to or from all applicable third parties in accordance with the Agreement.
13. TrackTik Representations And Warranties
13.1 TrackTik represents and warrants to, and covenants with Customer that: (a) it has the legal right to enter into the Agreement and perform its obligations thereunder, and (b) the performance of its obligations will not violate any laws or regulations that are applicable to TrackTik or cause a breach of any agreements between TrackTik and any third parties.
13.2 TrackTik represents and warrants to, and covenants with Customer that the execution, delivery, and performance of the Agreement: (a) is within its corporate powers; (b) has been duly authorized by all necessary corporate action; and (c) does not and will not contravene or constitute a default under, and is not and will not be inconsistent with, any judgment decree or other, or any contract, agreement, or other undertaking, applicable to TrackTik.
13.3 TrackTik represents and warrants to, and covenants with Customer that: (a) TrackTik has the right to grant the rights and licenses specified in the Agreement; and (b) to TrackTik’s knowledge, the Services and Mobile Application, and their respective underlying technologies do not contain any material bugs or defects and do not contain or make available any viruses, worms, Trojan horses, web bugs, time bombs, “spyware,” or other harmful or invasive code or components.
14. Limited Warranty
TrackTik represents and warrants that the Services and Mobile Application will: (a) conform to all material operational features as described in the applicable Order Form; and (b) 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 will be, at TrackTik’s option, the correction of non-conforming Services at TrackTik’s expense or a pro-rated refund of the Fees paid by Customer for the non-conforming Services from the date that TrackTik was notified of such non-conformity, error or defect.
15. Warranty Disclaimers
EXCEPT AS EXPRESSLY PROVIDED HEREIN, TRACKTIK DOES NOT WARRANT THAT THE 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 SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THE AGREEMENT, THE SERVICES, PROFESSIONAL SERVICES, MOBILE APPLICATION, 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 SERVICES, PROFESSIONAL SERVICES, OR MOBILE APPLICATION IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
16. Disclaimer Of Third-Party Actions And Technology
TrackTik does not and cannot control the flow of data to or from TrackTik’s Technology and other portions of the Internet. Such flow of data depends on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt customer’s connections to the Internet (or portions thereof). Although TrackTik will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, TrackTik cannot guarantee that such events will not occur. TRACKTIK DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF INTERNET SERVICES, SOFTWARE OR SYSTEMS PROVIDED OR CONTROLLED BY THIRD PARTIES (INCLUDING CUSTOMER) WHICH ARE NOT TRACKTIK’S SUBCONTRACTORS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TRACKTIK IS NOT RESPONSIBLE FOR ANY THIRD-PARTY (INCLUDING CUSTOMER) SOFTWARE OR SYSTEMS (INCLUDING THIRD-PARTY TECHNOLOGY) USED BY CUSTOMER IN ORDER TO ACCESS AND USE THE SERVICES.
17.1 By TrackTik. 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 Customer’s or its Authorized Users’ use of the Services or Mobile Application infringes 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 will have no liability or obligation if the claim arises from: (a) any alteration or modification to the Services or Mobile Application by Customer or a third party not authorized by TrackTik; (b) any third party software or technology that is not proprietary to TrackTik or any combination of the Services or Mobile Application by Customer with other software or technology not furnished by TrackTik; or (c) any use by Customer of the Services or Mobile Application that is prohibited by the Agreement or otherwise outside the scope of use for which the Services or Mobile Application are intended.
17.2 By Customer. 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 the Agreement; or (iii) use of the TrackTik Services (or any part thereof) by Customer or any Authorized User in combination with any third-party software, application or service not provided by TrackTik.
17.3 Indemnification Procedures. 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 the Agreement and will not settle any such claim without the prior written consent of the indemnified party.
18. Options For Infringement Claims
Without limiting TrackTik’s obligations under Section 17.1, if Customer or an Authorized User is enjoined from using the Services or Mobile Application, or if TrackTik believes that the Services or Mobile Application may become the subject of a claim of intellectual property infringement, TrackTik, at its option and expense, may: (a) procure the right for Customer to continue to use the Services; (b) replace or modify the Services or Mobile Application so as to make it non-infringing; provided, however, that the Services and Mobile Application continue to materially conform to the descriptions and specifications provided in the applicable Order Form; or (c) terminate the Agreement, in which case TrackTik will refund to Customer any Fees paid by Customer for those Services not yet delivered. This Section 18 and the preceding Section 17.117.1 set forth the sole liability of TrackTik to Customer, and Customer’s sole remedy, for any infringement by the Mobile Application or Services of any Intellectual Property Right of any third party.
19. Exclusion Of Certain Damages
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY AUTHORIZED USER FOR ANY: (A) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (B) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (C) BUSINESS INTERRUPTION; (D) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (E) PERSONAL INJURY OR DEATH; OR (F) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE AGREEMENT.
20. Limitation Of Liability
20.1 Subject to the remainder of this section, in no event will either party’s aggregate liability, if any, including liability arising out of or in connection with the contract, negligence, strict liability in tort or warrant, or otherwise, exceed the amount of the Fees paid to TrackTik for the 12-month period leading up to the date any such liability arises.
20.2 In no event will either party’s aggregate liability, if any, for breaches of Section 10 (Mutual Exchange of Confidential Information), exceed CAN$1,000,000.
20.3 Section 20.1 will not apply to limit either party’s obligations or liability pursuant to Section 17 (Indemnification).
20.4 THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING QUEBEC, DO NOT ALLOW THE LIMITATION OF LIABILITY OR CERTAIN DAMAGES. IF THESE LAWS APPLY, SOME OR ALL OF THE LIMITATIONS IN THIS SECTION 20 MAY NOT APPLY AND CUSTOMER MAY HAVE ADDITIONAL RIGHTS. The parties acknowledge that the provisions of this Section 20 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.
Notices sent to either party will be effective upon receipt 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 (including by email) and sent:
(i) if to TrackTik, to the following address: 4200 Saint-Laurent #445, Montréal, QC, Canada H2W 2R2, or for Customers in the European Economic Area to: TrackTik UK Ltd., 5 New Street Square, London, United Kingdom, EC4A 3TW, and in either case to Attention: Notices. Notices sent by email must be sent to [email protected].
(ii) if to Customer, to the current postal or email address that TrackTik has on file with respect to Customer. The customer is solely responsible for keeping its contact information on file with TrackTik current at all times during the term of the Agreement.
TrackTik may change its contact information by posting the new contact information on the Sites or by giving notice thereof to the Customer.
Neither party will assign the Agreement to any third party without the other party’s prior written consent. Notwithstanding the foregoing, either party may assign the Agreement, in whole or in part, without the other party’s consent, in connection with the transfer or sale of all or substantially all of the party’s business or assets to a third party, whether by merger, sale of stock, sale or donation of assets or otherwise. Subject to the first sentence, the rights and liabilities of the parties hereto are binding on and will enure to the benefit of, the parties and their respective successors and permitted assigns. Any attempted assignment other than in accordance with this Section 22 will be null and void.
23. Force Majeure
Neither party will be liable for delays caused by any event or circumstances beyond the parties’ 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.
Governing Law, Jurisdiction and Venue. The Agreement and any action related thereto shall be construed in accordance with and governed by the laws of the Province of Quebec and the federal laws of Canada applicable therein, without regard to conflicts of law principles. Any legal suit, action or proceeding arising out of or relating to the Agreement will be commenced in a court in the Judicial District of Montreal, Quebec, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of such court in any such suit, action or proceeding. This choice of venue does not prevent TrackTik from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any competent court in any appropriate jurisdiction.
Waiver. The waiver by either party of a breach of or a default under any provision of the Agreement, will be in writing and will not be construed as a waiver of any subsequent breach of or default under the same or any other provision of the Agreement, nor will any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
Severability. If any provision of the Agreement is be held to be invalid or unenforceable by a court of competent jurisdiction, such provision will be severed from the Agreement and all other provisions of the Agreement will remain in full force and effect.
Relationship of the Parties. Nothing contained in the Agreement will be deemed or construed as creating a joint venture, partnership, agency, employment, or fiduciary relationship between the parties. Neither party, nor either party’s agents, have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times will continue to be, that of independent contractors.
Public Announcements. TrackTik may issue a press release or make other public announcements concerning the Agreement, may use Customer’s name as a customer reference, or use Customer’s trademarks on TrackTik’s customer lists or any other materials.
Headings; Interpretation. The section and sub-section headings used in these Terms of Service are inserted for convenience only and will not affect the meaning or interpretation of the Agreement. The term “including” means “including without limiting the generality of the foregoing”.
Modification and Amendment. No amendment or modification of any provision of the Agreement will be effective unless in writing and signed by a duly authorized signatory of TrackTik and Customer.
Language. The parties acknowledge having expressly required that these Terms of Service and the Agreement including all related documents or policies are to be drawn up in the English language. Les parties aux présentes reconnaissent avoir expressément exigé que les présentes, de même que tous les documents et politiques s’y rattachant, soient rédigées en anglais.