Tracktik Terms of Service
TrackTik accepts Customer’s Purchase Order on the express condition that Customer agrees to and is bound by the terms and conditions set forth below (the “ Terms of Service”). All Purchase Orders by Customer shall be subject to the Terms of Service. Such agreement shall be conclusively and irrevocably evidenced by Customer accepting provision of Services under such Purchase Order or by Customer’s payment of an invoice covering such Purchase Order.
TrackTik may from time to time modify the Terms of Service and will post a copy of the amended Terms of Service on the Site, so Customer is encouraged to periodically review the Terms of Service.
- 1. Definitions
- 1.1 “Affiliate.” With respect to Customer, any parent or subsidiary corporation, and any corporation or other business entity controlling, controlled by or under common control with Customer, which agrees in writing to be bound by all the obligations of Customer hereunder.
- 1.2 “Authorized Users.” The number of identifiable unique persons consisting of Customer’s personnel and outside consultants who are authorized to access and use the Services, as specified in the applicable Purchase Order. Authorized Users may include Customer’s authorized and identifiable third party consultants, out sourcers, contractors and other service providers.
- 1.3 “Customer Data.” Customer’s information or other data processed, stored or transmitted by, in, or through the Services, including without limitation personal information relating to Customer’s personnel, customers, and prospective customers such that the identity of such persons is apparent or can reasonably be determined from such personal information.
- 1.4 “Proprietary Rights.” Any rights with respect to patents, copyrights, Confidential Information, trade secrets, trade names, domain names, trade dress, logos, trademarks, service marks, and other similar rights or interests in intellectual property.
- 1.5 “Purchase Order.” A document indicating that it is a “purchase order” which incorporates the Terms of Service in written form if mutually agreed upon and duly executed by the parties. In order to be binding, a “purchase order” must comply with the above requirements.
- 1.6 “Services.” The web services described and specified in the applicable Purchase Order and any updates or upgrades to such services which may be generally released by TrackTik to its customers from time to time.
- 1.7 “Site.” TrackTik’s “TrackTik.com” / “tracktik.com” / “staffr.com” / “staffr.ca” / “staffr.net” websites, including the TrackTik Technology.
- 1.8 “TrackTik Technology.” The computer hardware, software and software updates, and all improvements or enhancements thereto, and other tangible equipment and intangible computer code necessary to deploy and serve the Services via the Site.
- 2. Effects of Terms of Service
The sale of the Services is subject to and governed solely by the Terms of Service and no terms or conditions of Customer’s Purchase Order, any agreement or any other understanding shall be binding on TrackTik or apply in any manner to the sale of such Services. No modification of the Terms of Service shall be of any force or effect unless signed by an authorized officer of TrackTik. No specification prepared by Customer relative to a Purchase Order shall be binding on TrackTik for any purpose unless signed by an authorized officer of TrackTik.
- 3. Terms of Payment
Unless otherwise specified, prices are quoted in Canadian dollars for Services being sold by TrackTik. Payment terms are net thirty (30)days for cash or cheque without discount. Interest at the rate of 2% per month will be charged on past due accounts (26.8% per annum). If Customer’s account is past due, in addition to other rights and remedies, TrackTik may suspend provision of Services or performance hereunder or under any other contract with Customer until Customer’s account becomes current or until TrackTik receives satisfactory security or cash prior to such provision of Services or performance hereunder.
- 4. Proprietary Rights Ownership.
Ownership of the Proprietary Rights embodied in the “TrackTik.com” / “tracktik.com” / “staffr.com” / “staffr.ca” / “staffr.net” websites, the Services, and the TrackTik Technology, including all improvements and updates thereto, shall remain exclusively vested in and be the sole and exclusive property of TrackTik and its licensors. The “TrackTik.com” / “tracktik.com” domain name, product names and logos associated with the Services are trademarks of TrackTik or third parties, and Customer shall have no right to use them at any time or in any way without TrackTik’s prior written consent
- 5. Use Restrictions
Customer covenants and agrees that its use of the Services will be in a manner consistent with the Terms of Service and with all applicable laws and regulations, including trade secret, copyright, trademark, and export control laws. Without limiting the generality of the foregoing, Customer shall not, nor shall it permit or assist others, (i) to abuse or fraudulently use the Services; (ii) to process or permit to be processed the data of any third party that is not expressly authorized herein to access and use the Services; and (iii) to attempt to copy, reverse-engineer, decompile, disassemble, create a derivative work from, or otherwise attempt to derive the source codes of any part of the TrackTik Technology; (iv) to access, alter, or destroy any information of any customer of TrackTik by any fraudulent means or device, or attempt to do so; or (v) encumber, lease, rent loan, sublicense, transfer, transport or otherwise distribute the TrackTik Technology.
- 6. Security
Customer shall be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of its link to the Internet. As part of the Services, TrackTik shall 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 and is not otherwise negligent, the parties agree that TrackTik shall not, under any circumstances, be held responsible or liable for situations (i) where data or transmissions are accessed by third parties through illegal or illicit means, or (ii) 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 promptly 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, Customer shall be solely responsible for any and all such notifications at its expense.
- 7. Monitoring of Customer’s Use
TrackTik reserves the right to internally monitor Customer’s usage of the Site and the Services. Any use of the Site or the Services by a Customer not specifically permitted under the Terms of Service is strictly prohibited and may result, at TrackTik’s discretion, in the suspension or termination of any outstanding Purchase Order(s) for such Customer.
- 8. Mutual Exchange of Confidential Information
The parties anticipate that each may disclose Confidential Information to the other. Accordingly, the parties desire to establish the terms governing the use and protection of Confidential Information one party (“Owner”) may disclose to the other party (“Recipient”).
- 8.1 Definition of Confidential Information. For purposes hereof, “Confidential Information” means (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 and contractors that is disclosed by TrackTik, or on its behalf, in relation to a Purchase Order; (ii) non-public aspects of TrackTik’s Site and the operation thereof, TrackTik Technology, and the Services and additional services provided by TrackTik, and TrackTik’s business and technical information, and data; and (iii) Customer Data, and non-public aspects of Customer’s technology, computer programs, and business and technical information, and data. In addition, Confidential Information includes information which, although not related to the Services, a Purchase Order or the Terms of Service, is nevertheless disclosed hereunder, and which, in any case, is disclosed by Owner or its Affiliates or contractors to Recipient in a document or other tangible form bearing an appropriate legend indicating its confidential or proprietary nature, or which, if initially disclosed orally or visually is identified as confidential at the time of disclosure and a written summary hereof, also marked with such a legend, is provided to Recipient within fifteen (15) days of the initial disclosure.
- 8.2 Restrictions on Use and Disclosure. Recipient may use Confidential Information only for the purposes of a Purchase Order and shall 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. Recipient may disclose Confidential Information received hereunder only as reasonably required to perform its obligations under a Purchase Order and only to its employees 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.
- 8.3 Exclusions. The restrictions of the Terms of Service on use and disclosure of Confidential Information shall not apply to information that: (i) is in the possession or control of Recipient at the time of its disclosure hereunder; (ii) is, or becomes, publicly known, through no wrongful act of Recipient; (iii) is received by Recipient from a third party free to disclose it without obligation to Owner, (iv) is independently developed by a party as evidenced by its written and dated records and without any breach of the Terms of Service, including compliance with Section 4; or (v) is the subject of a written permission to disclose provided by Owner. The Recipient may disclose Confidential Information of Owner pursuant to the requirements of a governmental agency or by operation of law, provided that such Recipient gives Owner written notice thereof as soon as practicable and reasonably cooperates with Owner to contest such disclosure.
- 9. General Skills and Knowledge
Notwithstanding anything to the contrary in the Terms of Service, Customer agrees that TrackTik is not prohibited from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services, including information publicly known or available or that could reasonably be acquired in similar work performed for another customer of TrackTik
- 10. Claims
All claims for any non-conformity, error, or defect of the Services must be made within five (5) days of the date of provision of the Services.
- 11. Taxes
Any tax of any nature including, without limitation, any excise, sales, use, Services and services or other similar taxes which the TrackTik may be required to pay, to collect or to reimburse to others, by reason of the manufacture, ownership, use or sale of any product sold or service provided by TrackTik hereunder shall be the sole responsibility of Customer and shall be added to the amount to be paid hereunder.
- 12. Limits of Contract
Only the Services specifically described in a Purchase Order are subject to the Terms of Service.
- 13. Technical Data
All performance data relied on by TrackTik for the provision of the Services are based upon information furnished by Customer in accordance with its requirements and TrackTik assumes no responsibility for the accuracy of such information.
- 14. Force Majeure
For all purposes hereof, force majeure includes any act of God, war, mobilization, governmental regulation, strike, lockout, drought, flood, total or partial fire, obstruction of navigation, loss, damage or detention in transit, defective materials or delays by shippers, or other contingences or causes beyond TrackTik’s control which might prevent the manufacture, shipment or delivery of Services covered hereby. Performance of TrackTik’s obligations may be suspended pending force majeure, without TrackTik being responsible to Customer for any damages or losses resulting from such suspension.
- 15. Customer Representations & Warranties
- 15.1 Customer represents, warrants and covenants that the performance of its obligations under the Terms of Service and the use of the Services (by Customer and its Authorized Users) will not violate any applicable laws or regulations.
- 15.2 Customer represents, warrants and covenants that the acceptance and performance of the Terms of Service: (i) is within its corporate powers; (ii) has been duly authorized by all necessary corporate action; and (iii) does not and shall not contravene or constitute a default under, and is not and shall not be inconsistent with, any judgment decree or other, or any contract, agreement, or other undertaking, applicable to Customer.
- 15.3 Customer acknowledges that (i) TrackTik does not monitor the content of the information passing through the Services for purposes of verifying accuracy or legal compliance, and (ii) Customer will use commercially reasonable efforts to ensure that the information it and its Authorized Users transmit thereby complies with all applicable laws and regulations, whether now in existence or hereafter enacted and in force.
- 15.4 In the event of any breach by Customer of any of the foregoing representations or warranties, in addition to any other remedies available at law or in equity, if the breach is not cured by Customer within 10 days of Customer’s receipt of written notice of the breach from TrackTik, TrackTik will have the right to suspend the Services until such breach is cured.
- 16. Limited Warranty
TrackTik represents and warrants that the Services will: (i) conform to all material operational features as described in the applicable Purchase Order, and (ii) be free of errors and defects that materially affect the performance of such features (the “Limited Warranty”), provided that Customer notifies TrackTik, in writing, of any non-conformity, error, or defect. In addition to any other remedies available at law or equity, Customer’s remedy for breach of the Limited Warranty shall be correction of non-conforming Services at TrackTik’s expense.
- 17. Warranty Disclaimers.
EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, NEITHER TRACKTIK NOR ANY OF ITS SUPPLIERS OR RESELLERS MAKES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND TRACKTIK AND ITS SUPPLIERS SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USUAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW DISCLAIMERS OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THE TERMS OF SERVICE HAVE BEEN MADE RESPECTING THE SERVICES, AND THAT CUSTOMER HAS NOT RELIED ON ANY REPRESENTATION NOT EXPRESSLY SET OUT IN THE TERMS OF SERVICE. TRACKTIK DOES NOT WARRANT THAT THE SERVICES OR SITE WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE SERVICES OR SITE WILL OPERATE IN THE COMBINATIONS WHICH CUSTOMER MAY SELECT FOR USE, OR THAT THE OPERATION OF THE SERVICES OR SITE WILL BE UNINTERRUPTED, OR ERROR-FREE. FURTHER, CUSTOMER ACKNOWLEDGES AND AGREES THAT TRACKTIK HAS NO CONTROL OVER THE INTERNET, AND THAT TRACKTIK IS NOT LIABLE FOR THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET WHICH MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THE SERVICES.
- 18. Disclaimer of Actions of Third Parties
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 PROVIDED OR CONTROLLED BY THIRD PARTIES WHICH ARE NOT TRACKTIK’S SUBCONTRACTORS.
- 19. Indemnity
19.1 TrackTik will indemnify, defend and hold harmless Customer and its Affiliates from and against any lawsuit, liabilities, loss, cost or expense (including, but not limited to, reasonable attorneys’ fees and costs of suit) arising out of a third party claim made against Customer that the TrackTik Technology or Services infringe on any intellectual property right of a third party; provided, however, that TrackTik is notified in writing of such claim promptly after such claim is made upon Customer. TrackTik shall have the right to control any defense of the claim. In no event shall Customer settle any such claim without TrackTik’s prior written approval. TrackTik shall have no liability or obligation if the claim arises from (i) any alteration or modification to the TrackTik Technology or Services by Customer, (ii) any combination of the TrackTik Technology or Services by Customer with other programs or data not furnished by TrackTik, or (iii) any use by Customer of the TrackTik Technology or Services that is prohibited by the Terms of Service or otherwise outside the scope of use for which the TrackTik Technology or Services are intended.
19.2 Each party will indemnify, defend and hold harmless the other party and its Affiliates from and against any lawsuit, liability, loss, cost or expense (including, but not limited to, reasonable attorneys’ fees and costs of suit) arising out of, related to, or in connection with the acts, omissions, performance (or failure to perform) of the first party, its subcontractors, or their respective employees or agents, to the extent the lawsuit, liability, loss costs or expense results from the negligence, willful misconduct or other fault of the first party, its subcontractors or their respective employees or agents.
- 20. Options for Infringement Claims.
If any party is enjoined from using the TrackTik Technology, or if TrackTik believes that the TrackTik Technology 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 Services; (ii) replace or modify the TrackTik Technology so as to make it non-infringing; provided, however, that the Services continue to conform to the descriptions and/or specifications provided in the applicable Purchase Order; or (iii) in addition to any other remedies available in law or equity, terminate any outstanding Purchase Orders, in which case TrackTik shall refund to Customer any and all subscription fees paid by Customer for those Services not provided by TrackTik and provide, at Customer’s request and free of charge, Customer Data in a database document format. This Section 20 and the preceding Section 19 set forth the liability of TrackTik to Customer for any infringement by the TrackTik Technology or Services of any intellectual property right of any third party.
- 21. Limitation of Liability
THE LIABILITY OF TRACKTIK WILL NOT UNDER ANY CIRCUMSTANCES EXCEED THE PURCHASE PRICE OF THE SERVICES PROVIDED IN THE TWELVE (12)-MONTH PERIOD LEADING UP TO THE DATE ANY SUCH LIABILITY ARISES AND IN NO EVENT SHALL TRACKTIK BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR CONTINGENT DAMAGES OR COMMERCIAL LOSS OF ANY KIND (INCLUDING DAMAGES FOR LOSS OF PROFITS) ALLEGEDLY SUSTAINED BY CUSTOMER.
- 22. Assignment
Customer shall not assign or transfer its rights or obligations under the Terms of Service without the written consent of TrackTik and any assignment made without such consent shall be null and void.
- 23. No Partnership
No agency, partnership, joint venture, or employment is created between Customer and TrackTik as a result of the Terms of Service, and Customer does not have any authority of any kind to bind TrackTik in any respect whatsoever.
- 24. Governing Law and Invalidity
Any provision hereof which is contrary to law will not invalidate any other provision thereof. The foregoing sets forth the sole and entire agreement between the parties with respect to the Services supplied hereunder. These Terms of Service shall be governed by and interpreted in accordance with the laws of the province of Quebec and the federal laws of Canada applicable therein, excluding any rules of private international law or the conflict of laws which would lead to the application of any other laws. Customer agrees that any action at law or in equity arising out of or relating to the Terms of Service shall be filed and adjudicated only in the federal or provincial courts located in the Province of Québec (district of Montreal), and Customer hereby irrevocably and unconditionally consents and attorns to the exclusive jurisdiction and venue of such courts over any suit, action or proceeding arising out of the Terms of Service.
- 25. Language
The parties confirm that it is their wish that the Terms of Service, as well as any other documents relating to the Terms of Service, including notices, schedules and authorizations have been and shall be drawn up in the English language only. Les signataires confirment leur volonté que les présentes Conditions de service, de même que tous les documents s’y rattachant, y compris tout avis, annexe et autorisation, soient rédigés en anglais seulement .