Customer Terms of Service

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These Terms of Service are part of the SaaS Services Agreement between the Customer and Trackingplan, as defined in the corresponding Agreement. The Agreement, once signed by the Customer, incorporates these Terms of Service by reference, and together they constitute a binding agreement governing the provision of services and products.

1. SAAS SERVICES AND SUPPORT

1. Subject to the terms of this Agreement, Trackingplan will use commercially reasonable efforts to provide the Customer the Services. As part of the registration process, the Customer will identify an administrative username and password for the Customer’s Trackingplan account.  Trackingplan reserves the right to refuse registration of or cancel passwords it deems inappropriate.
2. Subject to the terms hereof, Trackingplan will provide the Customer with reasonable technical support services.
3. the Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  the Customer shall also be responsible for maintaining the security of the Equipment, the Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Customer account or the Equipment with or without the Customer’s knowledge or consent.

2. CONFIDENTIALITY & PROPRIETARY RIGHTS

1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Trackingplan includes non-public information regarding features, functionality and performance of the Service.  Proprietary Information of the Customer includes non-public data provided by the Customer to Trackingplan to enable the provision of the Services (“the Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without the use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.  
2. the Customer shall own all rights, title, and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to the Customer as part of the Services.  Trackingplan shall own and retain all rights, title, and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.     
3. Notwithstanding anything to the contrary, Trackingplan shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies 

3. PAYMENT OF FEES

1. The Customer will pay Trackingplan the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”).   Trackingplan reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or the current renewal term, upon thirty (30) days prior notice to the Customer (which may be sent by email). In respect of any Trackingplan change to Fees, the Customer shall be entitled to terminate this Agreement (to take effect on the date the proposed revision of the Fees shall take effect).  If the Customer believes that Trackingplan has billed the Customer incorrectly, the Customer must contact Trackingplan no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to Trackingplan’s support department.  Trackingplan will not exercise any of its rights in respect of the Customer non-payment if the Customer is disputing an invoice charge (or part of it) reasonably and in good faith and proactively cooperating with Trackingplan to resolve it quickly and efficiently.
2. Trackingplan may choose to bill through an invoice, in which case, full payment for invoices issued in any given period must be received by Trackingplan thirty (30) days upon the Customer’s receipt of the invoice.  Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. 

4. TERM AND TERMINATION

1. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of one (1) year (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
2. In addition to any other remedies it may have, either party may also immediately terminate this Agreement if the other party: (i) materially breaches any of the terms or conditions of this Agreement, and such breach is incapable of remedy; or if capable of remedy, if such breach is not so remedied within thirty (30) days’ of the relevant party receiving notice of it; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. The Customer shall also be entitled to terminate this Agreement at its convenience (and without the need to provide a compelling reason) at the end of each contract year during the Initial Term, provided it serves 30 days advance written notice to Trackingplan. Save for any Fees that are disputed reasonably and in good faith, the Customer will pay in full for the Services up to and including the last day on which the Services are provided. the Customer’s non-payment of an invoice shall only be deemed a material breach if it fails to remedy such non-payment within ten (10) days of its receipt of notice from Trackingplan.  All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. 

5. WARRANTY AND DISCLAIMER

Trackingplan shall use all commercially reasonable efforts consistent with good industry practice (and no less than reasonable care) to deliver the Services and ensure they are maintained and supported in a manner which minimizes errors and interruptions to them and shall perform the Implementation Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Trackingplan or by third-party providers, or because of other causes beyond Trackingplan’s reasonable control, but Trackingplan shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Trackingplan does not warrant that the services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the services. except as expressly set forth in this section, the services and implementation services are provided “as is” and trackingplan disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.

6. INDEMNITY 

Trackingplan shall hold the Customer harmless from liability to third parties resulting from infringement by the Service of any intellectual property right (including patent or any copyright) or misappropriation of any trade secret, provided Trackingplan is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Trackingplan will not be responsible for any settlement it does not approve in writing.  The foregoing obligations do not apply with respect to portions or components of the Service (i) that are integrated by the Customer with a third party service; (ii) that are modified by the Customer after delivery by Trackingplan, (iii) combined with other third-party products, processes or materials (only on the Customer’s request) where the alleged infringement relates to such combination, (v) where the Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where the Customer’s use of the Service is not strictly in accordance with this Agreement.  If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Trackingplan to be infringing, Trackingplan may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for the Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable or cannot be provided (annd the Customer’s use of the Services has been suspended for a period in excess of 30 days), then eighty party may terminate this Agreement and the Customer’s rights hereunder and Trackingplan shall provide the Customer a refund of any prepaid, unused fees for the Service.  

7. LIMITATION OF LIABILITY

Notwithstanding anything to the contrary, except for bodily injury of a person, Trackingplan and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond Trackingplan’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid or payable by the customer to Trackingplan for the services for the term of this agreement, in each case, whether or not Trackingplan has been advised of the possibility of such damages. 

8. MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable, or sublicensable by the Customer except with Trackingplan’s prior written consent.  Trackingplan may transfer and assign any of its rights and obligations under this Agreement without consent.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and the Customer does not have any authority of any kind to bind Trackingplan in any respect whatsoever.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received if personally delivered; when receipt is electronically confirmed if transmitted by facsimile or e-mail; the day after it is sent if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  This Agreement shall be governed by the laws of the domicile of Trackingplan, without regard to its conflict of laws provisions.