Tracktik Terms of Service
(Please note that the following Terms of Service apply to registered, paid users of the TrackTik Services, not to visitors to the TrackTik website generally.)
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, which are incorporated by reference therein. 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.
The Terms of Service are made between you, the “Customer”, as identified in the Purchase Order (who may be referred to in the Terms of Service by “you or “your”), and TrackTik Software Inc., a corporation with its principal office located at 4200 St-Laurent, #445, Montreal, Quebec (“TrackTik”, who may also be referred to in the Terms of Service as “we” or “us”).
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 at this specific URL, so Customer is encouraged to periodically review the Terms of Service. Your continued use of the Services following the posting of any changes to the Terms of Service constitutes acceptance of those changes. If there are any significant changes to the Terms of Service that materially affect your relationship with us, you will be notified upon logging-in to the Services or via email.
- 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, outsourcers, 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 in written or electronic form indicating that it is a “purchase order” which incorporates these Terms of Service, 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.” Site may refer to any of TrackTik’s “TrackTik.com”, “tracktik.com”, “staffr.com”, “staffr.net” or “staffr.ca” websites, or any white label website through which Customer accesses the Services, including all their respective subdomains present and future, and including but not limited to 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 by the Terms of Service and the terms and conditions of Customer’s Purchase Order, and no other 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 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.
- 4.1 You acknowledge that: (a) the Services and Site contains proprietary and confidential information that is protected by applicable intellectual property and other laws, and (b) TrackTik and/or third parties own all right, title and interest in and to the Services and Site and content that may be presented or accessed through the Services and Site, including without limitation all Intellectual Property Rights therein and thereto. You are being granted the limited license right to use the Services as contemplated in your Purchase Order and you hereby acknowledge that no title or ownership in the Services is being transferred or assigned and these Terms of Service should not be construed as a sale of any rights in the Services. All rights not specifically granted under these Terms of Service are reserved to TrackTik and its licensors. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
- 4.2 You agree that you will not, and will not allow any third party, to (i) copy, sell, license, distribute, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from, the Services, Site, or TrackTik Technology, or content that may be presented or accessed through the Services or Site for any purpose, unless otherwise permitted by TrackTik; (ii) take any action to circumvent or defeat the security deployed or enforced by any functionality contained in the Services or Site; or (iii) remove, obscure, or alter TrackTik’s or any third party’s copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Services or Site.
- 4.3 The content, arrangement and layout of the Site and Services including but not limited to the trademarks, photos, logos, videos, audio, images, text (in the form of plain text, HTML, or PDFs) and computer code are proprietary to TrackTik, either owned or under license, and may not be copied, imitated, reproduced, displayed, distributed, transmitted, decompiled or otherwise used without the express permission of TrackTik. Any unauthorized use of the content, arrangement or layout of the Services or Site, computer code, images, logos, videos, audio or trademarks found in the Services or Site or any derivative works thereof may violate civil or criminal laws, including but not limited to intellectual property laws, and TrackTik may take action accordingly.
- 4.5 If you choose to communicate to TrackTik suggestions for improvements to the Services or Site (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. You hereby irrevocably assign all right, title and interest in and to the Feedback to TrackTik and waive in favor of TrackTik, its successors and assigns all your moral rights in the Feedback, and agree to provide TrackTik such assistance as TrackTik may require to document, perfect, and maintain TrackTik’ rights to the Feedback. You acknowledge and agree that, by providing any Feedback to TrackTik, you are not entitled to any compensation or reimbursement of any kind from TrackTik under any circumstances
- 4.6 Any email communications sent to you by TrackTik, as well as related correspondence, links, and any attached documentation is confidential, protected by intellectual property laws and subject to these Terms of Service. Any retransmission, unauthorized use or disclosure to anyone outside your organization is prohibited and may be considered a breach of these Terms of Service, and TrackTik may take action accordingly.
- 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 but not limited to 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; (iii) to access, alter, or destroy any information of any customer of TrackTik by any fraudulent means or device, or attempt to do so; or (iv) 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. Errors, Defects.
Customer agrees to notify TrackTik of any non-conformity, error, or defect of the Services promptly after Customer’s discovery of same.
Any tax of any nature including, without limitation, any excise, sales, use, Goods and Services or other similar taxes which 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, and specified in the Purchase Order.
- 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, technological or infrastructure attack or degradation, or other contingences or causes beyond TrackTik’s control which might prevent the provision of, 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, AS APPLICABLE, 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 TOTAL FEES PAID BY THE CUSTOMER FOR THE USE OF THE SERVICES 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, Jurisdiction and Invalidity
Any provision hereof which is contrary to law will not invalidate any other provision thereof. The foregoing and any applicable Purchase Order set 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 or your use of the Services 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 or your relationship with TrackTik. The foregoing choice of jurisdiction and venue shall not prevent TrackTik from seeking injunctive relief with respect to a violation of intellectual property rights, enforcement or recognition of any award or order in any appropriate jurisdiction.
- 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.
- 26. Miscellaneous Provisions
If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Service shall remain in full force and effect. The section titles in the Terms of Service are for convenience only and have no legal or contractual effect.