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1.1 Affiliates means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a Party. For purposes of this definition “control” means the direct possession of a majority of the outstanding voting securities of an entity.
1.2 Aggregated Data means Customer Data that is (i) anonymized, and not identifiable to any person or entity, (ii) combined with the data of other customers or additional data sources, and (iii) presented in a manner from which Customer’s or Authorized Users’ identity may not be derived.
1.3 Customer Data means all Data made available by Customer or its Users to Tracker or otherwise provided by Customer or its Users in connection with the provision of the Services.
1.4 Data means text, images, materials, photos, audio, video, and all other forms of data or communication.
1.5 Documentation means the documentation for the Subscription Services generally supplied by Tracker to assist its customers in the use of the Subscription Services, including user manuals and other written materials.
1.7 Feedback means any Customer provided feedback and reports about any errors, problems, or defects in, or suggestions for changes and improvement to the Subscription Services.
1.8 Intellectual Property Rights means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States, the European Union, or any other state, country or jurisdiction.
1.9 Order Form means each Tracker order form, statement of work or similar document signed by duly authorized representatives of both Parties which references this Agreement, identifies the specific Services ordered by Customer from Tracker, sets forth the prices for the Services and contains other applicable terms and conditions.
1.10 Professional Services means configuration, implementation, data migration, training, consulting, and/or custom services to be provided by Tracker. All Professional Services will be set forth in an Order Form.
1.11 Tracker Data means all Data made available by Tracker to Customer in connection with Customer’s use of the Subscription Services.
1.12 Services means the Subscription Services, Professional Services, and Support Services, collectively as applicable, provided by Tracker to Customer pursuant to Section 2.1 hereof.
1.13 Subscription Services means Tracker’s proprietary subscription-based software solution set forth and described on the applicable Order Form. For the avoidance of doubt, Customer shall only receive the Subscription Services ordered pursuant to an Order Form.
1.14 Support Services means maintenance support services for the Subscription Services.
1.15 Third-Party Applications means online, Web-based applications or services and offline software products that are provided by third parties and interoperate with the Subscription Services.
1.16 Users mean individuals who are authorized by Customer to use the Services, and, with respect to the Subscription Services, who have been supplied passwords by Customer (or by Tracker at Customer’s request). Users consist of any employee of Customer or its Affiliates and any independent contractor of Customer or its Affiliates.
1.17 Work Product means any deliverables, content, reports, analyses or documentation developed by Service Provider on behalf of Customer for Customer’s specific and exclusive use and delivered to Customer in the performance of any Professional Services.
2.1 Order Form. Tracker shall provide Customer with the specific Services specified on an Order Form. Any conflict between the terms and conditions set forth in this Agreement and any Order Form shall be resolved in favor of the Order Form. Customer agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Tracker regarding future functionality or features.
2.2 Affiliates Not Under Direct Order Form. Subject to the terms of the Order Form and this Agreement, Customer may make the Services available to its Affiliates provided that: (a) all licensing restrictions are complied with in each instance by each such Affiliate, (b) such Affiliates are bound by obligations as protective of Tracker as this Agreement for the benefit of Tracker, and (c) the Affiliate and Tracker do not have a separate, pre-existing agreement in place for the Services. Customer shall be liable for any breach of the terms and conditions of this Agreement by any of its Affiliates, except where the Affiliate has signed its own Order Form with Tracker for the Services pursuant to Section 2.3.
2.3 Affiliates Under Direct Order Form. In addition to Section 2.2, Customer’s Affiliates may acquire Services subject to the terms and conditions of this Agreement by executing Order Forms hereunder directly with Tracker; provided, the Affiliate and Tracker do not have a separate, pre-existing agreement in place for the Services. Each Order Form executed by an Affiliate hereunder shall incorporate the terms of this Agreement by reference and be deemed to be a two-party agreement between Tracker and such Affiliate. Each Affiliate executing an Order Form shall be solely responsible for its obligations pursuant to such Order Form as well as for the obligations to be performed pursuant to this Agreement and the liabilities arising out of this Agreement as if it was the named party instead of Customer. Customer shall have no obligations or liabilities as to such Order Form signed by its Affiliate and Tracker shall look solely to the Affiliate executing such Order Form.
3.1 Fees. Customer agrees to pay Tracker for the Services as well as expenses incurred in accordance with and at the rates specified in each Order Form. Unless otherwise set forth on the Order Form, payment shall be due within thirty (30) days after receipt of Tracker’s invoice. Customer agrees to pay a late charge of one and one-half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all overdue amounts not subject to a good faith dispute.
3.2 Taxes. Fees are exclusive of taxes. Customer shall be responsible for the payment of all sales, use, value added tax, and similar taxes arising from or relating to the Services rendered hereunder, except for taxes related to the net income of Tracker and any taxes or obligations imposed upon Tracker under federal, state and local wage laws.
3.3 CPI-Based Fee Adjustments. Subscription Fees may be subject to annual increases on each anniversary of the applicable Start Date as set forth in the Order Form. Such increases shall be equal to the greater of (i) five percent (5%), or (ii) the percentage increase, if any, in the applicable consumer price index. For Customers located in the United States, the relevant index shall be the Consumer Price Index for All Urban Consumers (CPI-U), U.S. City Average, All Items, Not Seasonally Adjusted, as published by the U.S. Bureau of Labor Statistics. For Customers located in the United Kingdom or the European Union, the relevant index shall be the Harmonised Index of Consumer Prices (HICP) as published by Eurostat. Adjustments shall be calculated based on the most recently published index available prior to each anniversary date compared to the index published for the same month of the prior year and shall apply automatically without additional notice, unless otherwise specified in the applicable Order Form.
4.1 License Grant. Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees set forth on the applicable Order Form, Tracker hereby grants to Customer, solely during the term of the applicable Order Form, a limited, non-exclusive, non-transferable license to access and use the Subscription Services in accordance with this Agreement and the applicable Documentation. This license is restricted to use by Customer and its Users and does not include the right to use the Subscription Services on behalf of any third party.
4.2 Upgrades. Tracker may apply upgrades to the Subscription Services from time to time during the applicable Order Form term, provided, no upgrade shall disable, delete or significantly impair any existing functionality. Customer shall not be subject to any additional fees arising out of an upgrade except where an optional upgrade is offered that introduces new functionality to the Subscription Services and access to and use of such new functionality is made generally commercially available for an additional fee. Customer’s decision to not obtain to any such optional upgrade shall not impact Customer’s then-current access to or disable, delete or significantly impair any existing functionality of the Subscription Services.
4.3 Customer Guidelines and Responsibilities. Customer agrees and understands that: (a) it is responsible for all activity of Users and for Users’ compliance with this Agreement; (b) it shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data; (ii) prevent unauthorized access to, or use of, the Subscription Services, and notify Tracker promptly of any such unauthorized access or use; and (iii) comply with all applicable laws and/or regulations in using the Subscription Services; (c) the Subscription Services shall not include Customer’s connection to the Internet or any equipment or third party licenses necessary for Customer to use the Subscription Services, which shall be Customer’s sole responsibility; (d) it is responsible for supplying Tracker with any technical data and other information and authorizations that Tracker may reasonably request to allow Tracker to provide the Subscription Services to Customer; and (e) Tracker shall have the right to: (i) use or act upon any Feedback provided by Customer without restriction and without obligation to Customer; (ii) utilize information collected regarding Customer’s use of the Subscription Services, which shall not contain any Customer Data, for the purposes of (1) maintaining, improving and/or analyzing the Subscription Services, including providing advanced analytics and reporting to Customer, (2) complying with all legal or contractual requirements, and/or (3) making malicious or unwanted content anonymously available to its licensors for the purpose of further developing and enhancing the Subscription Services; and (iii) develop and commercialize benchmarks and measures based on Aggregated Data.
4.4 Restrictions. Customer and its Users (a) shall not (i) modify, copy, display, republish or create derivative works based on the Subscription Services; (ii) reverse engineer the Subscription Services; (iii) access or use the Subscription Services to build a competitive product or service, or copy any ideas, features, functions or graphics of the Subscription Services; (iv) use the Subscription Services in any way prohibited by applicable law or that would cause either party to violate applicable law including but not limited to: (1) sending spam or other duplicative or unsolicited messages; (2) using the Subscription Services to send infringing, obscene, threatening, libelous, or other unlawful material; (3) using the Subscription Services to access blocked services; or (4) uploading to the Subscription Services or using the Subscription Services to send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (v) use the Subscription Services to run automated queries to external websites; (vi) interfere with or disrupt the integrity or performance of the Subscription Services or the data contained therein; (vii) attempt to gain unauthorized access to the Subscription Services or its related systems or networks; (viii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Subscription Services; (ix) perform penetration or load testing on the Subscription Services; or (x) without the express prior written consent of Tracker, conduct any public benchmarking or comparative study or analysis involving the Subscription Services; and (b) agree (i) to use the Subscription Services solely for its internal business purposes; (ii) to only permit access to the Subscription Services by Users; (iii) to not access or use the Subscription Services from a prohibited location in violation of U.S. or E.U. trade and economic sanctions; and (iv) that Tracker is not responsible for the contents and/or accuracy of any materials of Customer uploaded or transmitted through the Subscription Services.
4.5 Suspension. Tracker reserves the right to suspend Customer’s access to the Subscription Services if Tracker reasonably determines that: (a) Customer’s use of the Subscription Services represents an imminent threat to Tracker’s network; (b) Customer has violated any of its obligations under Section 4.3 above; (c) the security or proper function of the Subscription Services may be compromised due to hacking, denial of service attacks or other activities of a similar nature; or (d) Customer’s continued use may violate any applicable law or third-party rights. To the extent reasonably practicable given the nature of the issue giving rise to the suspension, Tracker will promptly: (i) notify Customer of such suspension in writing, and (ii) reinstate the suspended Subscription Services after the issue is abated.
4.6 Third-Party Applications. Tracker may make available Third-Party Applications that operate, interface or are delivered with the Services, including without limitation, text messaging applications and tools from Text Us Services, Inc. (“TextUs“), in its sole discretion. Customer shall, and cause its Users to, comply with the following terms and conditions in connection with Customer’s access and use of any Third-Party Applications from TextUs (i) terms https://textus.com/subscription-service-terms-partners/ and (ii) https://textus.com/acceptable-use-policy/, both of which may be updated from time to time (collectively, the “TextUs Agreements“). In the event of a conflict between the TextUs Agreements and this Agreement, the TextUs Agreements shall control. For all other Third-Party Applications, Customer shall enter into a separate agreement with any such applicable third-party vendor prior to accessing and using such Third-Party Applications. Tracker may stop making available Third-Party Applications that operate, interface or are delivered with the Services at any time without prior notice. TRACKER DOES NOT WARRANT, AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO, THIRD-PARTY APPLICATIONS, WHETHER OR NOT THEY ARE DESIGNATED BY TRACKER AS “VERIFIED” OR OTHERWISE, AND TRACKER DISCLAIMS ALL LIABILITY FOR SUCH THIRD-PARTY APPLICATIONS.
5.1 Professional Services. Tracker will perform the Professional Services and produce the Work Product described in an applicable Order Form.
5.2 Personnel. Tracker has sole discretion regarding the assignment of Tracker personnel. Tracker personnel performing Professional Services remain the employees of Tracker, and Tracker is responsible for all compensation and other employment benefits of such employees. Tracker may use subcontractors to perform obligations under any applicable Order Form provided that Tracker will remain primarily liable to Customer for all Professional Services performed by Tracker subcontractors. While Tracker is providing Professional Services and for a period of 12 months thereafter, neither party will directly or indirectly solicit for employment or employ any employee of the other party, or any Tracker subcontractor, actively involved in the performance, consumption or evaluation of the applicable Professional Services without the prior written consent of the other party. Notwithstanding the foregoing, this Agreement will not prohibit solicitation or employment that results from (a) any executive search or similar business used in the ordinary course of business and in a manner consistent with past practices of such business; or (b) advertising or other publications of general circulation.
5.3 Customer Responsibilities. Customer will perform its obligations set forth in the applicable Order Form. Customer agrees that to the extent its failure to meet its responsibilities results in a failure or delay by Tracker in performing its obligations under the Order Form, Customer will not be liable for such failure or delay. If Tracker is required to perform the Professional Services at a Customer location, Customer will make facility access, office space, and communication services available to Tracker. Customer will ensure that Tracker has the rights to use any Third Party Applications made available to Tracker by Customer as necessary for the performance of the Professional Services.
6.1 Support Services. Tracker will perform the Support Services described in accordance with its Service Level Agreement, available at https://www.tracker-rms.com/service-level-agreement/ which is incorporated herein by reference.
7.1 Services. All rights and title in and to the Services, Documentation, and Tracker Data, including all Intellectual Property Rights inherent therein, belong exclusively to Tracker and its licensors, including all modifications or derivatives thereof (“Pre-Existing IP“). No rights are granted to Customer other than as expressly set forth in this Agreement.
7.2 Ownership of Work Product. Subject to Sections 7.3 below, Tracker will own all Intellectual Property Rights in or related to all Work Product that are developed and delivered by Tracker under this Agreement. Tracker also will own all Intellectual Property Rights in or related to any know-how, techniques, concepts or ideas developed in the performance of the Services provided hereunder. The Services and Work Product provided hereunder will not constitute “works made for hire” under any applicable copyright laws.
7.3 License Grant for Work Product Owned by Tracker. During the applicable Order Form term, Tracker grants to Customer a limited, royalty-free, non-transferable and nonexclusive license to use the Work Product provided to Customer under an Order for Customer’s internal business purposes.
7.4 Customer Data. All rights and title in and to Customer Data, including all Intellectual Property Rights inherent therein, belong exclusively to Customer. Subject to the foregoing, Customer herby grants Tracker an unlimited, irrevocable, perpetual, nonexclusive, sublicensable (through multiple tiers), worldwide, fully-paid up, royalty-free and transferable license to display, improve exploit, manipulate, transform or otherwise use any Customer Data or other data submitted by Customer to the Services for the purposes of facilitating the delivery of the Services to Customer. Tracker may retain Customer Data to the extent permitted by applicable law. To the extent permitted by applicable law, Tracker is not responsible for and hereby disclaims any and all liability for any lost data or corrupted data concerning or relating to any Customer Data, other data on the Services.
8.1 Confidential Information. During the term of this Agreement, each Party will regard any information provided to it by the other Party and designated in writing as proprietary or confidential to be confidential (“Confidential Information“). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing Party’s business and the industry in which it operates, is of a confidential or proprietary nature. The receiving Party shall hold in confidence, and shall not disclose (or permit its personnel to disclose) any Confidential Information to any person or entity except to directors, officers, employees, outside consultants, or advisors (collectively “Representatives“) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving Party and who are bound by a duty of confidentiality no less protective of the disclosing Party’s Confidential Information than the terms of this Section 8. The receiving Party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another party without the prior written consent of the disclosing Party. Each Party accepts responsibility for the actions of its Representatives and shall protect the other Party’s Confidential Information in the same manner as it protects its own proprietary information of a similar nature and sensitivity, but in no event shall less than reasonable care be used. The Parties expressly agree that the terms and pricing of this Agreement are Confidential Information and Customer further agrees that it shall not use the Services for the purposes of conducting comparative analysis, evaluations or product benchmarks with respect to the Services and will not publicly post any analysis or reviews of the Services without Tracker’s prior written approval. A receiving Party shall, to the extent legally permissible, promptly notify the disclosing Party upon any request for disclosure of Confidential Information by a valid order of a court or other governmental body having jurisdiction and shall cooperate with any reasonable request of the disclosing Party in enforcing its rights (at the disclosing Party’s expense). In any event, the receiving Party shall make such disclosure only to the extent required and shall use reasonable efforts to ensure that confidential treatment is afforded to any such Confidential Information so disclosed.
8.2 Exclusions. Information will not be deemed Confidential Information hereunder if such information: (a) becomes publicly known or otherwise publicly available, except through a breach of this Agreement by the receiving Party; (b) is known prior to receipt from the disclosing Party or becomes known thereafter, in each case on a non-confidential basis; or (c) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.
8.3 Injunctive Relief. Notwithstanding any other provision of this Agreement, both Parties acknowledge that any disclosure or use of the disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both Parties agree that, in addition to any other remedy to which the disclosing Party may be entitled hereunder, at law or equity, the disclosing Party shall be entitled to seek an injunction to restrain such use in addition to other appropriate remedies available under applicable law.
8.4 Prior Agreements. This Section 8 supersedes all prior agreements, proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating to each Party’s obligations with respect to Confidential Information.
9.1 Mutual Warranty. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
9.2 Subscription Services Warranty. Tracker warrants that: during the term of any Order Form for the Subscription Services the Subscription Services will conform, in all material respects, with the Documentation. If Customer believes the warranty stated in this Section has been breached, Customer must notify Tracker of the breach no later than thirty (30) days following the date of becoming aware of that the warranty was allegedly breached, and Tracker will promptly correct the non-conformity at its own expense if a breach of this warranty occurred. Such warranty shall only apply if the Subscription Services has been utilized by Customer in accordance with the Order Form and this Agreement.
9.3 Professional Services Warranty. Tracker warrants that any Professional Services provided hereunder shall be provided in a competent and professional manner and in accordance with any specifications set forth in the Order Form in all material respects. If the Professional Services are not performed as warranted, then, upon Customer’s written request, Tracker shall promptly re-perform, or cause to be re-performed, such Professional Services, at no additional charge to Customer. Such warranties and other obligations shall survive for thirty (30) days following the completion of the Professional Services.
9.4 Support Services Warranty. Tracker shall provide the Support Services and warrants that the Support Services, will be performed in a professional manner in accordance with industry standards for like services.
9.5 Warranty Remedies. The remedies stated in this Section 9 are Customer’s sole remedies, and Tracker’s sole obligation, with respect to Services that fail to comply with the foregoing warranties.
9.6 Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER. TRACKER EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINFRINGEMENT, OR THAT THE SERVICES WILL BE ERROR-FREE.
10.1 Tracker Indemnification. Subject to Section 10.3 below, Tracker will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the Subscription Services infringe or misappropriate such third party’s Intellectual Property Rights (a “Claim Against Customer“), and will indemnify Customer from any damages (including reasonable attorney fees and costs) finally awarded against Customer as a result of, or for amounts paid under a court-approved settlement of, a Claim Against Customer. If a Claim Against Customer is brought or is likely, in Tracker’s sole opinion, to be brought, Tracker will, at its option and expense: (a) obtain the right for Customer to continue using the Subscription Services; (b) replace or modify the Subscription Services so it becomes non-infringing; or (c) upon notice to Customer, terminate this Agreement or Customer’s use of the Subscription Services, provided that in the case of (c) Tracker promptly refunds to Customer the prorated portion of any unearned pre-paid subscription fees paid hereunder for the Subscription Services. Tracker’s obligations in this Section 10.1 do not cover third party claims to the extent such claims arise from: (i) any products, services, technology, materials or data not created or provided by Tracker (including without limitation any Customer Data), (ii) any part of the Subscription Services made in whole or in part in accordance to Customer specifications, (iii) any modifications to the Subscription Services made after delivery by Tracker, (iv) any combination of the Subscription Services with other products, processes or materials not provided by Tracker (where the alleged damages, costs or expenses arise from or relate to such combination), (v) where Customer continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Subscription Services is not strictly in accordance with this Agreement or any other Documentation.
10.2 Customer Indemnification. Subject to Section 10.3 below, Customer will defend Tracker and its Affiliates, officers, directors, employees, agents, successors and assigns (collectively, the “Tracker Indemnitees“) against any claim, demand, suit or proceeding made or brought against any or all of Tracker Indemnitees by a third party: (a) alleging that Customer Data, or any use thereof, infringes the Intellectual Property Rights of others, or has caused harm to a third party; (b) arising out of or attributable to Customer’s breach of Section 4.3 above; (c) arising out of or attributable to Customer’s misuse of the Subscription Services; and/or (d) arising out of the violation of any Third-Party Application’s terms and conditions (each, a “Claim Against Tracker“). Customer will indemnify Tracker Indemnitees from any damages, reasonable attorney fees and costs finally awarded against Tracker Indemnitees as a result of, or for any amounts paid under a court-approved settlement of a Claim Against Tracker.
10.3 Indemnification Procedure. Each Party’s obligation to indemnify the other Party is conditioned on the Party seeking indemnification: (a) promptly notifying the indemnifying Party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby; (b) allowing the indemnifying Party to solely control the defence of any claim, suit or proceeding and all negotiations for settlement, provided that the indemnifying Party shall not settle any claim that requires the indemnified Party to admit fault or subjects the indemnified Party to ongoing obligations without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld or delayed); and (c) giving the indemnifying Party reasonable assistance in the defence and settlement of any claim, suit or proceeding for which indemnity is claimed.
10.4 Sole Remedy. This Section 10 states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of claim described in this Section.
11.1 Waiver of Consequential Damage. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY DAMAGES OF ANY KIND, OR ANY LOST PROFITS OR LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
11.2 Limitation of Liability. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID OR PAYABLE TO TRACKER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF THE EVENT(S) GIVING RISE TO SUCH LIABILITY FOR THE APPLICABLE SERVICES.
12.1 Term. All Services subscriptions specified in your initial Order Form will run for the subscription period set forth therein. If you add subscriptions after the beginning of a subscription period, their initial term will be the remainder of the then-current subscription period, unless otherwise set forth in the Order Form. All subscriptions will automatically renew for successive terms equal in length to the term of the immediately preceding Order Form (each, a “Renewal Term”) or for such different renewal term as set forth in the renewal Order Form, unless either party gives the other party notice of non-renewal at least ninety (90) days prior to the end of the relevant subscription period. If you do not enter into a renewal Order Form prior to the end of a subscription period, then we may suspend your access to the Services until you do. This Agreement will remain in effect until all services subscriptions have expired, or this Agreement has been terminated in accordance with Section 12.2 below. Tracker reserves the right to change the rates, applicable charges and usage policies and to introduce new charges, for such Order Form upon providing Customer with at least sixty (60) days prior written notice thereof (which notice may be provided by e-mail).
12.2 Termination. Notwithstanding the foregoing, either party may terminate this Agreement: (i) by sending a notice of non-renewal as provided above; (ii) if the other party has materially breached this Agreement, upon written notice to the breaching party of the breach and, if such breach is curable, an opportunity to cure of at least 30 days; or (iii) upon written notice to the other party if the other party becomes the subject of a petition in bankruptcy or another proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If you materially breach this agreement, we may, without limitation of other rights and remedies, temporarily suspend or terminate your access to the Services or withhold further performance of our obligations under this Agreement.
12.3 Effect of Termination. Upon termination or expiration of this Agreement; (i) all applicable subscriptions and other rights granted to you will immediately terminate; (ii) a party’s rights, remedies, obligations (including payment obligations), and liabilities that have accrued up to the date of termination shall not be affected; (iii) unless you have terminated this Agreement for our material breach as provided above, we will not be obligated to refund any prepaid and unused fees.
12.3.1 Access to Customer Data. Customer Data may be exported at any time during the term of this Agreement. We will not delete Customer Data from our production environment for up to 90 days after termination or expiration of this Agreement and may assist you with exporting Customer Data during such period at our standard hourly consulting rate. After that 90-day period, we will have the right to delete all Customer Data and will have no further obligation to make it available to you. Should you desire longer storage of Customer Data, paid data storage subscription services may be available.
13.1 Scope. This Section 13 applies to all personal data (as defined under applicable laws) processed by the Subscription Services on behalf of Customer or otherwise provided by Customer to Tracker in connection with this Agreement (“Personal Data“). For purposes of this Agreement, Tracker is a “processor” that processes certain Personal Data on behalf of Customer, who is the “controller.”
13.2 Data Protection and Privacy. Tracker shall comply with all data protection and privacy laws applicable to its processing of Personal Data. Any processing of Personal Data by Tracker will be in accordance with its Data Processing Agreement, available at https://www.tracker-rms.com/data-processing-agreement/, which is incorporated herein by reference.
13.3 Customer Responsibilities. Customer’s instructions to Tracker for the processing of Personal Data shall comply with all applicable data protection laws. Customer will have sole responsibility for the accuracy, quality, and legality of Personal Data upon delivery by Customer to Tracker and the means by which Customer acquired Personal Data. Customer shall ensure that it is entitled to transfer the Personal Data to Tracker so that Tracker may lawfully use, process and transfer the Personal Data in accordance with this Agreement on Customer’s behalf.
14.1 Entire Agreement. This Agreement, including all exhibits, addenda, Privacy Policy, and any Order Forms, contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating thereto and is binding upon the Parties and their permitted successors and assigns. This Agreement and any Order Form may only be amended by a written instrument that refers to this Agreement or the applicable Order Form and is duly signed by an authorized representative of each Party hereto. Any inconsistent or conflicting terms and conditions contained in any purchase order issued by Customer shall be of no force or effect, even if the order is accepted by Tracker. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the Party drafting this Agreement in construing or interpreting the provisions hereof.
14.2 Assignment. This Agreement shall be binding upon and for the benefit of Tracker, Customer, and their respective permitted successors and assigns. Either Party may assign this Agreement as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Except as expressly stated herein, neither Party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other Party, and any attempted assignment or delegation without such consent will be void. Tracker may use independent contractors, subcontractors, or other third parties in connection with the provision of Services under this Agreement.
14.3 Force Majeure. Except for the obligation to make payments, non-performance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, pandemic, governmental acts or orders or restrictions, failure of suppliers, internet service or telecommunication issues, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party.
14.4 Anti-Corruption. In performing this Agreement, the parties agree to comply at all times with the applicable laws related to money-laundering, bribery, and anti-corruption, including the Foreign Corrupt Practices Act, the UK Anti-bribery Act, and any other applicable anti-corruption legislations. Each of the parties agrees and warrants that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
14.5 Governing Law and Jurisdiction. This Agreement will be subject to the applicable laws set forth in the table below, as set forth therein, without reference to any conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any dispute arising out of or in connection with this Agreement will be resolved as set forth in the table below:
| If the Tracker entity named on the Order Form is in: | the applicable law will be: | Any dispute arising out of or in connection with this Agreement will be: |
|---|---|---|
| North America | the laws of the State of Delaware, United States. | subject to the jurisdiction of the courts of the State of Delaware, USA. Each party hereby irrevocably submits itself to the personal jurisdiction of the courts of the State of Delaware for any such disputes. |
| United Kingdom, European Union, Rest Of World | the laws of England and Wales. | subject to the jurisdiction of the courts of England and Wales. Each party hereby irrevocably submits itself to the personal jurisdiction of the courts of England and Wales for any such disputes. |
14.6 Headings. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
14.7 Relationship of the Parties. The relationship between Tracker and Customer is that of an independent contractor, and nothing in this Agreement shall be construed as making the Parties hereto partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither Party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other Party’s name or on its behalf.
14.8 Notices. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing to the relevant Party’s address set forth in the applicable Order Form under which the claim arose and shall be deemed to have been delivered and given for all purposes: (a) on the delivery date if delivered personally to the Party to whom the same is directed; (b) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt; or (c) five (5) business days after the mailing date whether or not actually received, if sent by U.S. certified mail, return receipt requested, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available, to the address of the Party as set forth below. Either Party may change its address by giving written notice of such change to the other Party.
14.9 Modifications to Subscription Services. Tracker may make modifications to the Subscription Services or particular components of the Subscription Services from time to time, provided that such modifications do not materially degrade any functionality of the Subscription Services.
14.10 Publicity. Customer hereby grants Tracker a non-exclusive license solely during the term of this Agreement to use Customer’s name and display Customer’s logo in Tracker’s customer lists and in the customer section of Tracker’s website.
14.11 No Third-Party Beneficiaries. Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a Party to any such person.
14.12 Waiver and Severability. Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by an authorized representative of the other Party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either Party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.
15.0 ACCEPTABLE USAGE POLICY
15.1 Purpose and Scope. This Acceptable Usage Policy (“AUP”) is designed to ensure fair and equitable access to Tracker’s resources for all customers and to maintain optimal system performance, reliability, and service quality. This AUP applies to Customer’s use of Campaign Sends, Automation Workflows, and EVA (AI Assistant) features within the Subscription Services.
15.2 Usage Limits. Customer’s usage of certain features within the Subscription Services is subject to the limits specified in Customer’s applicable plan tier as set forth in the Order Form and as detailed in the table below. These limits are intended to ensure consistent performance and availability of the Subscription Services for all customers.
15.3 Plan Tiers and Allowances. The following table sets forth the standard usage allowances for each plan tier:
| Feature |
Core Plan |
Professional Plan |
Enterprise Plan |
| Campaign Sends |
500 sends per User per month |
1,250 sends per User per month |
2,500 sends per User per month |
| Automation Workflows |
No Access |
250 automations per User per month |
500 automations per User per month |
| EVA (AI Assistant) Prompts |
5 EVA prompts per User per hour |
25 EVA prompts per User per hour |
50 EVA prompts per User per hour |
| Text Messages |
All text messages are subject to separate subscription or pay-per-use charges |
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| Background Checks |
All background checks are subject to separate subscription or pay-per-use charges |
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15.4 Usage Monitoring and Reporting. Tracker provides Customer with access to real-time usage monitoring tools within the Subscription Services, enabling Customer to view current usage levels, remaining allowances, and historical consumption patterns for the features subject to this AUP.
15.5 Exceeding Usage Limits.
15.5.1 Soft Limits. The usage limits set forth in Section 15.3 are implemented as “soft limits,” meaning that Customer will not be automatically prevented from exceeding the stated allowances during a given monthly billing period. However, if Customer’s usage exceeds one hundred ten percent (110%) of the allocated limits for any feature for two (2) consecutive calendar months (an “Overage Trigger”), Customer shall be required to upgrade to a higher plan tier or purchase additional usage allowances in accordance with Section 15.6 within fifteen (15) days of receiving written notice from Tracker of such Overage Trigger. Failure to upgrade or purchase additional allowances within such period may result in Tracker applying the remedies set forth in Section 15.5.3.
15.5.2 Notification. Tracker will notify Customer of usage compared to allocated limits for Customer plan tier within the Tracker platform. Customer is responsible for monitoring its usage and managing its consumption to remain within allocated limits.
15.5.3 Fair Use. If Customer fails to upgrade or purchase additional allowances following an Overage Trigger as required under Section 15.5.1, or if Customer’s usage exceeds the one hundred ten percent (110%) of the allocated soft limits for any feature in any single calendar month, Tracker may, in its reasonable discretion: (i) require Customer to immediately upgrade to a higher plan tier or purchase additional usage allowances; (ii) invoice Customer for overage charges at the then-current per-unit rates for the applicable feature; or (iii) in cases of extreme or abusive usage that impacts system performance for other customers, temporarily throttle or limit Customer access to the affected features in accordance with Section 4.5 of this Agreement.
15.5.4 Purchase Acknowledgment. All purchases of additional usage allowances, subscription bundles, or User licenses shall require Customer’s express written acknowledgment prior to activation. Such acknowledgment shall be provided through Tracker’s electronic ordering system, which shall: (i) present the applicable pricing and terms for the purchase; (ii) include a link to this Agreement available at https://www.tracker-rms.com/master-service-agreement/; (iii) require Customer’s affirmative acceptance; and (iv) generate an electronic confirmation to Customer’s designated billing contact that includes the item(s) purchased, the applicable pricing, and the effective date. Such electronic acknowledgment and confirmation shall constitute a binding amendment to the applicable Order Form for purposes of Section 12.1 of this Agreement.
15.6 Additional Usage Allowances. Customer may increase usage allowances through:
15.6.1 Plan Upgrades. Customer may upgrade to a higher plan tier at any time by executing a new or amended Order Form. Upgraded allowances will become effective upon execution of the Order Form and payment of any applicable fees.
15.6.2 Subscription Bundles. Customer may purchase additional monthly usage allowances through subscription bundles for Campaign Sends, Automation Workflows, EVA Prompts, Text Messages, and Background Checks. In accordance with Section 12.1 of this Agreement, if Customer adds subscription bundles after the beginning of a subscription period, their initial term will be the remainder of the then-current subscription period, unless otherwise agreed in writing. Subscription bundles are subject to the following terms:
(a) Bundle subscriptions shall be co-terminus with Customer’s current subscription term and will be invoiced on a pro-rata basis upon purchase for the remainder of the then-current subscription period;
(b) Bundle subscriptions shall automatically renew in accordance with Section 12.1 of this Agreement for successive Renewal Terms on the same terms unless cancelled in accordance with subsection (d) below or unless either party provides notice of non-renewal at least ninety (90) days prior to the end of the relevant subscription period;
(c) Customer may not reduce or cancel bundle subscriptions during the current subscription term;
(d) Bundle subscriptions may be cancelled by providing written notice at least ninety (90) days prior to the end of the relevant subscription period, consistent with Section 12.1 of this Agreement;
(e) Pricing for bundle subscriptions is subject to change at renewal, with Customer receiving at least thirty (30) days notice of any price changes.
15.7 Prohibited Uses. In addition to the usage limits set forth above, Customer shall not:
15.7.1 Use the Subscription Services in any manner that could damage, disable, overburden, or impair Tracker servers, networks, or the Subscription Services, or interfere with any other party use of the Subscription Services;
15.7.2 Attempt to circumvent, disable, or interfere with any usage monitoring, tracking, or enforcement mechanisms within the Subscription Services;
15.7.3 Use automated scripts, bots, or other automated means to artificially inflate usage or to access the Subscription Services in a manner inconsistent with normal human usage patterns, except as expressly authorized by Tracker in writing;
15.7.4 Use the Subscription Services to send unsolicited bulk communications, spam, or other communications in violation of applicable laws or regulations;
15.7.5 Share login credentials or User accounts to circumvent User-based usage limits.
15.8 Compliance. Customer is responsible for ensuring that all Users comply with this AUP. Any violation of this AUP by a User shall be deemed a violation by Customer.
15.9 Modifications to AUP. Tracker reserves the right to modify this AUP, including usage limits and pricing for additional usage allowances, upon thirty (30) days written notice to Customer. Customer continued use of the affected Subscription Services after the effective date of such modifications constitutes acceptance of the modified AUP. If Customer does not agree to the modifications, Customer sole remedy is to terminate the applicable Order Form in accordance with Section 12.2 of this Agreement.
15.10 Enforcement. Tracker failure to enforce any provision of this AUP shall not constitute a waiver of Tracker right to enforce such provision in the future. Tracker may enforce this AUP in its sole discretion and is not obligated to monitor Customer usage or enforce these provisions unless Tracker determines, in its reasonable judgment, that enforcement is necessary to maintain system performance, security, or availability.