This License Agreement (this “Agreement”) sets forth the terms and conditions upon which TrackerRMS Inc. or TrackerRMS Ltd., as applicable (“Tracker,” “we,” “our,” or “us”) offer you access to our proprietary subscription-based software solution and related services (collectively, the “Services”) through our website www.TrackerRMS.com (the “Website”). By clicking “I accept” or by accessing or using the Services, you agree to be bound by this Agreement. The term “you” in this Agreement means any person or entity the access the Services.

YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OF AGE, AND THAT, IF YOU ARE ACCESSING THE SERVICES ON BEHALF OF YOURSELF OR ANOTHER ENTITY, YOU ARE AUTHORIZED TO ACT ON BEHALF OF SUCH COMPANY OR OTHER ENTITY AND TO BIND IT TO THE TERMS AND CONDITIONS SET FORTH HEREIN.

1. Order Form. You may order the Services either online or via our sales team, and any record evidencing such order shall be considered an order form (“Order Form”), which shall be governed by this Agreement. If there is any conflict between your Order Form and this Agreement, the terms of the Order Form shall govern.

2. License and Proprietary Rights. Subject to the provisions of this Agreement, including any payment obligations, Tracker grants you a limited, non-exclusive, non-transferable right to access and to use the Services for your internal business purposes and in accordance with this Agreement. This license is restricted to you and your Users and does not include the right to use the Services on behalf of any third party. “Users” means any employee or independent contractor of yours permitted by you to access and use the Services. Except for the limited license set forth in this Section 2, Tracker retains all rights, title and interest in the Website and Services, including, without limitation, all intellectual property rights and all modifications, enhancements and derivatives thereof.

3. Guidelines and Responsibilities. You agree and understand that:

1. you are responsible for all of your Users’ activities in connection with the Services and compliance with this Agreement;
2. you (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all your Customer Materials (as defined below); and (ii) shall comply with all applicable laws and/or regulations in using the Services;
3. you are responsible for maintaining the confidentiality of your account information in connection with the Services, including your user login and password, and for restricting access to your computer and the Services, and you agree to accept responsibility for all activities that occur under your account, including any photos or information posted by clients or employees. Tracker reserves the right (but does not accept any obligation) to refuse service, terminate accounts, or to remove or edit content posted on the Services in its sole discretion;
4. the Services shall not include your connection to the Internet or any equipment or third-party licenses necessary for you to use the Services, which shall be your sole responsibility;
5. you are responsible for supplying Tracker with any technical data and other information and authorizations that we may reasonably request to allow Tracker to provide the Services to you; and
6. Tracker shall have the right to (i) use or act upon any feedback or suggestions for changes and improvements to the Services provided by you without restriction and without obligation to you; (ii) utilize information collected regarding your use of the Website or Services, which shall not contain any personal information, for the purposes of (1) maintaining, improving, and/or analyzing the Website or Services, including providing advanced analytics and reporting to you, (2) complying with all legal or contractual requirements, and/or (3) making malicious or unwanted content anonymously available to our licensors for the purpose of further developing and enhancing the Website or Services; and (iii) develop and commercialize benchmarks and measured based on any data or information you upload to the Services provided such data is (1) anonymized and not identifiable to any person or entity, (2) combined with the data of other customers or additional data sources, and (3) presented in a manner from which your and/or the Users’ identity may not be derived.

4. Restrictions. You agree that:

1. you shall not modify, copy, display, republish, or create derivative works based on the Website or Services;
2. reverse engineer the Website or Services;
3. access or use the Website or Services to build a competitive product or service, or copy any ideas, features, functions, or graphics of the Website or Services;
4. use the Website or Services in any way prohibited by applicable law or that would cause either party to violate applicable law, including without limitation: (1) sending spam or other duplicative or unsolicited messages; (2) using the Website or Services to send infringing, obscene, threatening, libelous, or other unlawful material; (3) using the Website or Services to access blocked services; or (4) uploading to the Website or Services or using the Website or Services to send or store viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files, scripts, agents, or programs;
5. use the Website or Services to run automated queries to external websites;
6. interfere with or disrupt the integrity or performance of the Website or Services or the data contained therein;
7. remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels within the Website or Services;
8. perform penetration or load testing on the Website or Services; or
9. without the express prior written consent of Tracker, conduct any benchmarking or comparative study or analysis involving the Website or Services.

5. Term and Termination. Unless otherwise set forth in the Order Form, the initial term for the Services is one month. The Services shall automatically renew for successive one-month periods unless and until either party terminates this Agreement, which they can do at any time by providing 30 days’ prior written notice.

6. Fees and Payment. You must pay the fees for the Services set forth in the Order Form on a monthly basis and in advance via credit card, debit card, electronic payment, or other accepted method of payment. Additional credit card or electronic transfer fees may apply. If payment is not received when due, you agree to pay 1.5% monthly interest (18% annual) or the maximum interest rate otherwise allowable by law on any overdue amount.

7. Tracker Starter Plan. The Services include our Tracker Starter Plan, as described below:

1. The Tracker Starter Plan includes the ATS & CRM plan. The Tracker Starter Plan does not include account management support, any in-person/telephone account management support, or ongoing account management support. Training is providing via the learning management system and help files are accessible through the Tracker system. Should you have a question for the Tracker, support team please address inquiries to clientsupport@tracker-rms.com.
2. The Tracker Starter Plan does not include data migration in its standard form. If you wish to include data migration, the parties will need to enter into a separate contract to cover the data migration scope of work.
3. The Tracker Starter Plan comes with an importer that allows you to load in companies, contacts, and candidates via a spreadsheet import. If you wish to create candidates via resumes, you can simply let us know by logging a service change ticket alerting us to give you access to a resume import link. Additional charges may apply.
4. Once you have signed up and paid for your Tracker Starter Plan, you will be provided with a pre-configured system, and you will have the option to book an intake call with a member of the Tracker team who will advise you on how you can tailor and customize your Tracker system.
5. While you cannot mix and match different users with different plans, you can add or remove users during the paid monthly contract period. Departing users will be removed on the next billing cycle. Please note that we cannot refund partial months of usage, and billing occurs monthly regardless of usage.

8. Other Charges. In addition to fees for the Tracker Starter Plan, when applicable, Tracker will invoice and you shall pay for the following Services:

 

Hourly Support/Training Rate for Tracker Starter Plans	$150
Back-up Request (if requested by you)	$15
Custom Reporting	Price on Request
Initial Data Storage (20 GB)	Free
Additional Data Storage (10 GB increments)	$100/year

 

9. Technical Support Services. We will provide you with technical support services as part of the Services. You must make all requests for technical support services through our Help Desk, and all such requests must include at least the following information: your name, email address, type of issue, description of issue, and indication of the priority.

Tracker will:

1. use reasonable endeavors to respond to requests for technical support services made through the Help Desk; and

1. use reasonable endeavors to resolve issues raised by you promptly and generally in accordance with the following response time matrix:

Severity	Examples	Estimated Response Time	Estimated Resolution Time
Critical	System outage or connection failure	1 hour	1 day
Urgent	Issues preventing further use of core functionality	2 hours	1 day
High	Issues preventing further use of non-core functionality	4 hours	2 days
Medium	Inconveniences or issues that do not prevent further use of functionality	1 day	5 days
Low	General requests or any cosmetic issues	2 days	14 days

Tracker will determine, acting reasonably, into which severity category an issue raised through the technical support services falls. All technical support services will be provided remotely unless expressly agreed otherwise by Tracker.

Tracker shall have no obligation under this Agreement to provide technical support services in respect of any fault or error caused by improper use of the Services.

5. Upgrades. You acknowledge that from time to time, we may upgrade, modify, or make enhancements to the Services at our discretion to reflect changes to our service offerings and features, including, without limitation, to reflect enhanced capabilities, changes in the service terms, changes in regulatory requirements, and/or any other modification intended to improve the efficacy of Services or better address a perceived need among our customers (“Upgrades”). No Upgrade will disable, delete, or significantly impair protected functionality unless otherwise explicitly noticed. You shall not be subject to any additional charges arising out of the application of such Upgrades, except where:

1. the Upgrade introduces new functionality to the Services;

1. that new functionality does not serve the same purpose as legacy functionality that ceases or has ceased to be available as a result of any upgrade; and

1. access to or use of the new functionality is chargeable to Tracker customers using the Services generally.

Any decision by you not to pay the charges for the Upgrade will not prejudice your access to and use of the rest of the Services.

6. Back up and Restoration. Tracker will:

1. make back-ups of the data, information and other materials stored on the Services by you (“Customer Materials”) on a daily basis, and will retain such back-ups for at least seven (7) days; and

1. at least once every seven (7) days, Tracker will arrange for the off-site storage of a current back-up of the Customer Materials stored on the Services (of which three (3) copies will be stored, over-writing the oldest off-site back-up date).

In the event of the loss of, or corruption of, Customer Materials stored on the Services, Tracker shall attempt to notify you. If so directed by you, we will use reasonable endeavors promptly to restore your Customer Materials from the most recent available back-up copy. NOTWITHSTANDING THE FOREGOING, YOU ACKNOWLEDGE AND AGREE THAT TRACKER IS NOT RESPONSIBLE FOR ANY LOSS OF CUSTOMER MATERIALS STORED ON THE SERVICES.

7. Scheduled Maintenance. Tracker may suspend access to the Services in order to carry out scheduled maintenance, which shall be carried out outside regular business hours. Such suspension will not regularly be for more than two (2) hours in each calendar month.

8. Your Warranty. By providing or uploading any Customer Materials, you, as the individual posting the information, warrant and represent that you either (a) have sole ownership of such Customer Materials or (b) are authorized to take such action with respect to such Customer Materials, and that such materials are free of any intellectual property claims by any third party. You also represent that you are in full compliance with all applicable state and federal laws, rules, and regulations. In particular, and without limitation, you warrant and represent that your use of the Website and Services will not violate any obligation with respect to the Telephone Consumer Protection Act of 1991, the Health Insurance Portability and Accountability Act of 1996, the Gramm-Leach-Bliley Act of 1999, and any other applicable federal or state law and amendments thereto. You also represent and warrant that, with respect to any information regarding potential employees, recruits, or other individuals whose information is gathered or processed by the Services (“Subject Information”), (i) you are authorized by the owner of the Subject Information to provide us with such Subject Information, including any personally identifying information of the relevant parties; (ii) our gathering, possession, processing, and/or use of the Subject Information on your behalf in connection with the Services will not violate any contract, statute, or regulation; and (iii) any representations you and/or your authorized representative(s) make to any potential employee or recruit will be true and accurate. You agree that we are not liable for any consequences of false and/or inaccurate content provided or used by your, your clients, or employees as a result of your use of the Services.

9. Claims of Copyright Infringement. We comply with the “safe harbor” provisions of the Digital Millennium Copyright Act of 1998. If you see any materials on the Website or the Services that you believe violate any copyright rights, including yours, please send an e-mail describing the violation you believe exists to the copyright agent designated below. If we become aware of any such items on the Website or the Services, we will promptly take action to ensure we are in full compliance with all privacy and copyright laws.

10. Privacy Policy. Tracker’s Privacy Policy is incorporated and made a part of this Agreement. You hereby agree to such Privacy Policy. Any personal information that you transmit to or through the Website or Services will be used by Tracker in accordance with the Privacy Policy.

11. Communications. When you visit the Website, use the Services, or send e-mails to us, you are communicating with us electronically, and you consent to also receive communications from us electronically. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

12. Confidential Information. You may receive proprietary or confidential information relating to the Services that is not known to the general public (“Confidential Information”), including, without limitation, Services content and/or materials, designs, specifications and documentation, business and product plans, other confidential business information, and non-public personal information. You agree that: (a) all Confidential Information shall remain Tracker’s exclusive property; (b) you shall use Confidential Information only as is necessary for your use of the Services; or (c) you shall not otherwise disclose Confidential Information to any other person.

13. DISCLAIMER OF LIABILITY AND WARRANTY. YOUR ACCESS AND USE OF THE WEBSITE AND SERVICES ARE AT YOUR OWN RISK. THE WEBSITE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TRACKER DOES NOT WARRANT OR GUARANTEE THE AVAILABILITY, ACCURACY, OR TRUTHFULNESS OF THE WEBSITE OR SERVICES, INCLUDING ANY SUBJECT INFORMATION CONTAINED WITHIN THE SYSTEM. WITHOUT LIMITING THE FOREGOING, TRACKER DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE WEBSITE OR DELIVERY OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES LIMIT THE APPLICABILITY OF SUCH LIMITATIONS AND DISCLAIMERS. IN SUCH STATES, THESE LIMITATIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT ALLOWABLE BY LAW.

14. LIMITATION ON LIABILITY. IN NO EVENT WILL TRACKER, ITS SHAREHOLDERS, OFFICERS, EMPLOYEES, AGENTS, OR AFFILIATES BE LIABLE FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES ARISING OUT OF THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL TRACKER’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNT OF THE FEES PAID BY YOU IN THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM OR $500, WHICHEVER IS GREATER. THE PARTIES AGREE THAT THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE SERVICES CAN BE MADE AVAILABLE FOR FREE OR AT REDUCED PRICES ONLY BECAUSE OF TRACKER’S RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. SOME STATES LIMIT THE APPLICABILITY OF SUCH LIMITATIONS AND DISCLAIMERS. IN THOSE STATES, THESE LIMITATIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT ALLOWABLE BY LAW.

15. Indemnity and Hold Harmless. You agree to defend, indemnify, and hold harmless Tracker, its shareholders, officers, employees, agents, and affiliates, from and against any losses, claims, judgments, damages, and settlements, including, without limitation, third-party claims which arise out of or are related in any way to (a) your use of or reliance upon the Website, Services, or any other information provided by Tracker to plan or carry out any activity, (b) a claim that the Customer Materials infringe upon any intellectual property or privacy rights of any third party, (c) any claim of a governmental entity or other party that you have violated any law, rule, or regulation, and (d) any breach by you of the obligations, representations, and warranties made by you through this Agreement.

16. Outside Links and Services. Tracker may use or access tools or programs provided by third parties as part of the Services. You agree to hold harmless Tracker from and against any claim based on the inaccuracy or other fault of such third-party services. Certain third-party providers, some of which may be listed on Tracker’s Website, offer products and services related to the Services, including implementation, customization, and other consulting services related to customers’ use of the Services and related applications (both offline and online) or services that work in conjunction with the Services, such as by exchanging data with the Services or offering additional functionality within the user interface of the Services through the use of relevant application programming interfaces. Tracker does not warrant any such third-party providers or any of their products and services, whether or not such products or services are designated by Tracker as “certified,” “validated,” or the like. Any exchange of data or other interaction between you and a third-party provider, and/or any purchase by you of any product or service offered by such third-party provider is solely between you and such third-party provider. In addition, from time to time, certain additional functionality (not defined as part of the Services) may be offered by Tracker to you, for an additional fee, on a pass-through or OEM basis pursuant to terms specified by the third-party licensor and agreed to by you in connection with a separate purchase by you of such additional functionality. Your use of any such additional functionality shall be governed by such terms or by other applicable terms and conditions, which shall prevail in the event of any inconsistency with the terms of this Agreement.

17. Governing Law and Jurisdiction. This Agreement and any dispute hereunder will be subject to the applicable laws and rules 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.

If you are located 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, the 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, or the rest of the 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.

 

18. Notices. All notices and other communications hereunder shall be in writing and shall be deemed effective when delivered by hand, reputable overnight delivery service, or certified mail (return receipt requested), postage prepaid to: (a) in the case of Tracker, to the address set forth on the Website to the attention of the CEO; and (b) in the case of you, to the address set forth in your account information.

19. Publicity. You hereby grant Tracker a non-exclusive license solely during the term of this Agreement to use your name and display your logo in Tracker’s customer lists and in the customer section of the Website.

20. Attorney Fees. In case of an action to enforce any rights or conditions of this Agreement, or appeal from said proceeding, it is mutually agreed that the losing party in such suit, action, proceeding, or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.

21. Entire Agreement. This Agreement is a binding contract and constitute the entire agreement and understanding of the parties, whether oral or written, relating to the subject matter hereof; are intended as the parties’ final expression and complete and exclusive statement of the terms hereof, superseding all prior or contemporaneous agreements, representations, communications, and understandings, whether written or oral.

22. Amendment. Tracker may amend this Agreement at any time in our sole discretion. When we do, we will let you know by appropriate means, such as by posting the revised statement on this page with a new “Last Updated” date. It is your responsibility to periodically review this Agreement to stay informed of updates. Your continued use of the Services following the effective date of any such amendment may be relied upon by Tracker as your consent to any such amendment.

23. Non-Waiver. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement shall not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision.

24. No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer on any person, other than the parties to this Agreement, any right or remedy of any nature whatsoever.

25. Headings. The headings used in this Agreement are for ease of reference only. They are not intended as a complete re-statement of the matters contained under each heading, and you acknowledge that you have read and understand all the text of this Agreement, and not just the headings.

26. Independent Contractors. It is the express intention of the parties that the parties act as independent contractors. Neither party is, nor will be deemed to be, an agent, legal representative, joint venturer or partner of the other party for any purpose.

27. Severability. If any provision of this Agreement shall be found to be invalid or unenforceable by a court of competent jurisdiction in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of this Agreement shall not be impaired.

28. Assignment. You may not assign this Agreement to any party without the prior written consent of Tracker. Any assignment by you in violation of this Section shall be void and have no effect. Tracker may assign this Agreement to any party without your consent. This Agreement shall inure to the benefit of each party’s permitted successors and assigns.

29. Force Majeure. Tracker will not be liable for, be considered to be in breach of, or in default under this Agreement on account of any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Tracker’s reasonable control, including, without limitation, any act of God, strike, fire, flood, pandemic, governmental acts or orders or restrictions, failure of suppliers, internet service and/or telecommunication issues.

30. Anti-Corruption. The parties agree to always comply 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 in connection with their performance under this Agreement. Each party 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 their performance under this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

31. Linking Policy. If you link to the Website, we require that you follow these guidelines: You may link only to the home page, and the link must be in plain text, unless otherwise approved in writing by an authorized representative of Tracker. The link to this Website must not damage, dilute, or tarnish the goodwill associated with any Tracker names and/or intellectual property, nor may the link create the false appearance that your website and/or organization is sponsored, endorsed by, affiliated and/or associated with Tracker. You may not “frame” this Website or alter its intellectual property or material in any other way. You may not link to the Website for purposes of harming the Website’s ranking in search engines. You agree that if Tracker requests that you remove a link to the Website for any reason, you will do so immediately without charge to Tracker. If you fail to remove any such link after request, you agree to pay Tracker’s costs incurred in enforcing this provision.