1. Definitions. Certain definitions used in this Agreement are set forth below, other capitalized terms used herein shall have the respective meanings set forth elsewhere in this Agreement or in the Order Form.
- 1.1. “Evaluation Period” means the evaluation period to the Platform as determined by Trackstar in its sole discretion and communicated to Customer upon sign up.
- 1.2. “Order Form” means the cover page to this Agreement, an amendment to this Agreement or a supplemental order form, which shall be in writing and signed by both parties and shall specify Platform to be acquired by Customer.
- 1.3. “Personal Information” means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located, including without limitation all data considered “personal data”, “personally identifiable information”, or something similar under applicable laws, rules, or regulations relating to data privacy.
- 1.4. “Platform” means Trackstar’s proprietary universal API for warehouse management systems made available at www.trackstarhq.com.
- 1.6. “Sensitive Data” means (i) special categories of data enumerated in European Union Regulation 2016/679, Article9(1) or any successor legislation; (ii) protected health information as defined in the Health Insurance Portability and Protection Act, as amended (“HIPAA”); (iii) payment cardholder information or financial account information, including bank account numbers or other personally identifiable financial information; (iv) social security numbers, driver’s license numbers, or other government identification numbers;(v) other information subject to regulation or protection under specific laws such as the Children’s Online Privacy Protection Act (“COPPA”) or the Gramm-Leach-Bliley Act (“GLBA”), in each case as amended, or related rules or regulations; or (vi) any data similar to the above protected under applicable laws, rules, or regulations.
- 1.7. “U.S. Privacy Law Addendum” means Trackstar’s U.S. Privacy Law Addendum available at www.trackstarhq.com/u-s-privacy-law-addendum.
- 1.8. “Users” means an employee, consultant, or independent contractor of Customer who has been authorized by Customer to use the Platform.
- 1.9. “Warehouse Data” means data relating to Customer’s merchant customer’s business activities that is managed and provided by Warehouse Management System Provider to Trackstar, which includes Personal Information of end consumers.
- 1.10. “Warehouse Management System Provider” means a third party warehouse management system provider engaged by Customer’s merchant customers to manage such merchant customer’s inventory and business activities, including Warehouse Data.
2. Usage & Restrictions.
- 2.1. Access and Use of the Platform. Subject to the terms and conditions of this Agreement Customer may, solely through its Users, access and use the Platform via the internet during the Term (as defined in the Order Form) on a non-exclusive, non-transferable, non-sublicensable basis solely for the purpose of accessing the Inventory Provider Data in the form provided by Trackstar for its internal business purposes. The Platform is subject to modification from time to time at Trackstar’s sole discretion, for any purpose deemed appropriate by Trackstar. Customer will be responsible for maintaining the security of Customer’s and its Users’ accounts, passwords (including but not limited to administrative and User passwords) and files, and for all uses of Customer’s and its Users’ accounts with or without Customer’s knowledge or consent. Customer will cooperate with Trackstar in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Trackstar may reasonably request. Customer will also cooperate with Trackstar in establishing a password or other procedures for verifying that only designated Users of Customer have access to any administrative functions of the Platform. Users may not share their account credentials with one another or any third party. Customer is responsible for all of the acts and omissions of its Users in connection with this Agreement and for all use of Users’ accounts (whether or not authorized by Customer).
- 2.2 Ownership. Trackstar and its licensors retain all right, title and interest in and to the Platform, all copies, modifications and derivative works thereof; all Trackstar trademarks, names, logos; and all documentation for the Platform, including without limitation, all rights to patent, copyright, trade secret and other proprietary or intellectual property rights. Customer may (but is not obligated to) provide suggestions, comments or other feedback to Trackstar with respect to the Platform (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Trackstar notwithstanding anything else. Trackstar acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Customer shall, and hereby does, grant to Trackstar a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Platform, or any intellectual property rights.
- 2.3 Restrictions. Customer will not and will not allow its Users or a third party to: (i) decompile, reverse engineer, disassemble or otherwise attempt to derive, analyze or use any source code or underlying ideas or algorithms related to the Platform by any means whatsoever; (ii) use or allow the use of the Platform by or for the benefit of third parties, including without limitation by renting, leasing, lending, timesharing, or using for service bureau purposes; (iii) disseminate benchmark performance information or analysis for purposes other than internal issue resolution or as requested by Trackstar; (iv) sell, reproduce, distribute, translate or market the Platform; (v) modify or create derivative works based on the Platform; (vi) use the Platform in any infringing, defamatory, harmful, fraudulent, illegal, deceptive, threatening, harassing, or obscene way; (vii) compromise the performance, security or integrity of our Platform or related systems, network or data by probing, scanning, monitoring, crawling, or testing the vulnerability of the Platform or any system or network that hosts the Platform; (viii) tamper with, hack or circumvent any security or authentication measures, or attempt to gain unauthorized access to the Platform, related systems, networks or data; or (ix) use the Platform to engage in phishing, extortion, fraud; or (xii) use the Platform other than in accordance with this Agreement and in compliance with all applicable laws, regulations and rights(including but not limited to those related to privacy intellectual property, consumer and child protection, SPAM, text messaging, obscenity or defamation). Customer is responsible for any breach, compromise or violation, by its Users of such obligations and Trackstar’s rights and title to the Platform.
- 2.4 Irreparable Injury. Customer acknowledges that there is no adequate remedy at law for a breach of this Section 2, that such breach would irreparably harm Trackstar for which monetary damages would be inadequate and that Trackstar is entitled to injunctive and equitable relief in addition to any other remedies.
3. No Support & Maintenance. Trackstar has no obligation under this Agreement to provide any support or maintenance of any kind.
4. Customer Data.
- 4.2 Safeguards. Trackstar will implement and maintain commercially reasonable administrative, physical, and technical safeguards designed to protect Warehouse Data from unauthorized access, use, alteration, or disclosure.
5. Third Party Services. Customer acknowledges and agrees that the Platform operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Trackstar is not responsible for the operation of any Third Party Services nor the availability or operation of the Platform to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Trackstar does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions. Certain aspects of the Platform may contain or be distributed with open source software code or libraries (“Open Source Components”). Trackstar will provide a list of Open Source Components for a particular version of any distributed portion of the Platform on Customer’s request. To the extent required by the license applicable to such Open Source Components: (i) Trackstar will use reasonable efforts to deliver to Customer any notices or other materials (such as source code); and (ii) the terms of such licenses will apply to such Open Source Components in lieu of the terms of these Terms. To the extent the terms of such licenses prohibit any of the restrictions in these Terms with respect to any particular Open Source Component, such restrictions will not apply to such Open Source Component. To the extent the terms of such licenses require Trackstar to make an offer to provide source code or related information in connection with the Open Source Component, such offer is hereby made. For purposes of clarity, Open Source Components are Third-Party Services.
6. Term & Termination.
- 6.1 Term.
6.1.1. Evaluation Term. Unless earlier terminated in accordance with Section 6.2, this Agreement shall become effective on the Effective Date and will remain in effect until the date on which this Agreement is terminated. Upon the expiration of the Evaluation Period, Customer’s access to the Platform will cease. If Customer does not subscribe to a paid version of the Platform prior to the expiration of the Evaluation Period, then Customer’s account may be deleted.
6.1.2. Paid SaaS Term. Unless earlier terminated in accordance with Section 6.2or as otherwise set forth in the Order Form, this Agreement shall become effective on the Effective Date of the first (1st) Order Form entered into by the parties that incorporates this Agreement by reference and will remain in effect until the date of the expiration or termination of the last Order Form entered into by the parties that incorporates this Agreement by reference. Each Order Form will be effective during the Term set forth thereon.
- 6.2 Termination. This Agreement may be terminated (i) by either party upon 30 days prior written notice in the event of a material breach of a material provision of this Agreement by the other party which is not cured within such period; (ii) by either party, immediately, if the other shall seek protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable insolvency proceeding, or if any such insolvency proceeding is instituted against the other (and not dismissed within 120 days). In addition, either party may terminate this Agreement for convenience on 15 days prior written notice if there are no then-current effective Order Forms in place. Either party may terminate this Agreement for convenience immediately with written notice during the Evaluation Period.
- 6.3 Effects of Termination. Upon termination of this Agreement, all licenses granted hereunder shall terminate and Customer shall immediately cease use of the Platform, provided that Sections 2.2, 2.3, 2.4, 6.3, 7, 8, 9, 10, 11, and 12, shall survive any expiration or termination of this Agreement. Termination is not the sole remedy under this Agreement and, whether or not termination is effected, all other remedies will remain available.
7. Fees & Payment Terms.
- 7.1 Fees. Customer shall pay to Trackstar all fees, in U.S. dollars, specified in any Order Form (collectively, the “Fees”).
- 7.2 Expenses. Customer is responsible for all reasonable costs and expenses (including without limitation reasonable travel and out-of-pocket expenses) incurred by Trackstar in connection with its performance of this Agreement.
- 7.3 Payment Terms. Except as specified in an Order Form, all amounts are due and payable within 30 days after invoice date. Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees.
- 7.4 Taxes. Any amounts payable hereunder are exclusive of, and Customer shall be responsible for, all sales taxes, value added taxes, duties, use taxes, withholdings and other governmental assessments, excluding taxes based on the net income of Trackstar, unless Customer provides to Trackstar a valid tax-exempt certificate.
8. Warranty Disclaimer. EXCEPT AS OTHERWISE STATED HEREIN, NEITHER TRACKSTAR NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES, AND HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, CORRECTNESS OR RELIABILITY RELATING TO PATIENT INFORMATION, REGARDING THE USE AND RESULTS OF THE PLATFORM, OR THAT USE WILL BE UNINTERRUPTED OR ERROR-FREE, AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE.
9. Limitations. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TRACKSTAR, AND ITS SUPPLIERS WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM; (II) ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS; (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES; (IV) FOR LOSS, INACCURACY, OR CORRUPTION OF DATA OR INTERRUPTION OF USE; OR (V) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- 10.1 Trackstar Indemnity. Trackstar will: (i) defend and settle, at its option, any claims, suits, actions, or proceedings brought by an unaffiliated third party (each a “Third Party Claim”) brought against Customer arising from any allegation by such third party that the Platform in fringes or misappropriates a valid United States patent, copyright or trade secret right of such third party; and (ii) indemnify Customer against any losses, liabilities, or expenses incurred (including reasonable attorneys’ fees), as well as amounts finally awarded in a settlement or by a court, in connection with any such Third Party Claim. If the Platform becomes or, in Trackstar’s opinion, is likely to become the subject of an injunction, Trackstar may, at its option, (a) procure for Customer the right to continue using the Platform,(b) replace or modify the Platform so that it becomes non-infringing without substantially compromising its functionality, or, if (a) and (b) are not reasonably available to Trackstar, then (c) terminate the Order Form under which the Platform has been made available to Customer. The foregoing states the entire liability of Trackstar with respect to infringement of patents, copyrights, trade secrets or other intellectual property rights.
- 10.2 Exclusions. The foregoing obligations shall not apply to: (i) the Platform being combined or bundled with any products, processes or materials not provided or approved by Trackstar where the alleged infringement relates to such combination; (ii) Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; (iii) Customer’s use of the Platform is not strictly in accordance with this Agreement; or (iv) infringement or misappropriation of any proprietary right in which Customer has an interest.
- 10.3 Customer Indemnity. Customer will: (i) defend and settle, at its option, any Third Party Claims brought against Trackstar arising from (a) an alleged violation of the restrictions set forth in Sections 2.3 or 5 otherwise from Customer’s use of the Platform or (b) that any Warehouse Data, or either party’s authorized activities hereunder with respect to any Warehouse Data, infringes or violates applicable laws or the rights of a third party; and; and (ii) indemnify Trackstar and its affiliates and its and their respective directors, officers, employees, contractors, agents, successors, and assigns against any losses, liabilities, or expenses incurred(including reasonable attorneys’ fees), as well as amounts finally awarded in a settlement or by a court, in connection with any such Third Party Claim.
- 10.4 Indemnity Procedures. The party seeking indemnification or defense (the “Indemnified Party”) will provide the party from whom indemnification or defense is sought: (i) prompt written notice of any Third Party Claim; (ii) sole control of the defense and settlement of the Third Party Claim (provided that neither party may enter into a settlement or otherwise dispose of a Third Party Claim in a manner that imposes any obligation on the other party without the other party’s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed); and(iii) reasonable assistance, at the Indemnified Party’s request and expense, in the defense and settlement of the Third Party Claim.
11. Confidential Information.
- 11.1 Definition. Each party agrees that the business, technical and financial information, including without limitation, the Platform, source code, inventions, algorithms, know-how and ideas and the terms and conditions of this Agreement, that is designated inwriting as confidential, or is disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the disclosing party and its licensors (“Confidential Information”). Confidential Information does not include information that (i) is previously rightfully known to the receiving party without restriction on disclosure, (ii) is or becomes known to the general public, through no act or omission on the part of the receiving party, (iii) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, or (iv) is independently developed by the receiving party without use or reliance on the Confidential Information.
- 11.2 Confidentiality. Except as expressly and unambiguously allowed herein, the receiving party will hold in confidence and not use or disclose any Confidential Information and shall similarly bind its employees, consultants, and independent contractors inwriting to confidentiality restrictions at least as restrictive as those contained herein.
- 11.3 Return of Confidential Information. Upon the expiration or termination of this Agreement, all of the Confidential Information (including any copies) will be returned to the disclosing party, and receiving party will make no further use of such materials.
- 11.4 Required Disclosure. If required by law, the receiving party may disclose Confidential Information of the disclosing party, but will give adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment therefor.
- 11.5 Relief. Money damages will not be an adequate remedy if this Section 12 is breached and, therefore, either party may, in addition to any other legal or equitable remedies, seek an injunction or other equitable relief against such breach or threatened breach without the necessity of posting any bond or surety.
- 12.1 Relationship of Parties. The parties hereto shall each be independent contractors in the performance of their obligations under this Agreement, and nothing contained herein shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
- 12.2 Publicity. Trackstar may identify Customer as a user of the Platform and may use Customer’s name, logo, and other trademarks in Trackstar’s customer list, press releases, blog posts, advertisements, and website (and all use thereof and goodwill arising therefrom shall inure to Customer’s sole and exclusive benefit). Otherwise, neither party may use the name, logo, or other trademarks of the other party for any purpose without the other party’s prior written approval.
- 12.3 Notices. Notices under this Agreement shall be sufficient only if (i) in writing and personally delivered, delivered by a major commercial rapid delivery courier service, (ii) mailed by certified or registered mail, return receipt requested to a party at the address first set forth herein or as amended by notice pursuant to this subsection, or (iii) emailed to the email address set forth in Customer’s account, and if such notice is sent to Trackstar, such notice shall be addressed to the attention of “Legal”.
- 12.4 Force Majeure. If either party is unable to perform any of its obligations under this Agreement, other than payment obligations, due to any cause beyond the reasonable control of such party, the affected party’s performance shall be extended for the period of its inability to perform due to such occurrence.
- 12.5 Export Control. Customer shall comply with the U.S. Foreign Corrupt Practices Act and all applicable export laws, restrictions and regulations of the U.S. Department of Commerce, and any other applicable U.S. and foreign agency or authority. Customer represents and warrants that it is not (i) a person or entity that is the target of sanctions administered by U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), or other relevant sanctions authority or (ii) located in a Crimea Region of Ukraine, Cuba, Iran, North Korea and Syria. Violation of this Section 13.5 will result in immediate termination of this Agreement.
- 12.6 Headings. Headings and captions used in this Agreement are for convenience only and are not to be used in the interpretation of this Agreement.
- 12.7 Assignment. This Agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part, whether by operation of law or otherwise, by Customer without Trackstar’s prior written consent. Trackstar may freely assign this Agreement. Any assignment in violation of this provision is void and without effect. In the case of any permitted assignment or transfer of or under this Agreement, this Agreement or the relevant provisions shall be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties hereto.
- 12.8 Governing Law. This Agreement shall be governed by and construed under the laws of the State of New York and the United States without regard to conflicts of laws provisions thereof.
- 12.9 Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, each party will have a right to seek injunctive or other equitable relief in any court of competent jurisdiction. The prevailing party will be that party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues. Customer hereby consents to the arbitration in New York, New York.
- 12.10 Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover its costs, expenses and attorneys’ fees.
- 12.11 Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement otherwise remains in full force and effect and enforceable.
- 12.12 Entire Agreement. This Agreement together with the exhibits hereto and any Order Forms, constitute the entire agreement between the parties relating to the subject matter hereof and supersede all proposals, letters of intent, memoranda of understanding, or discussions, whether written or oral, relating to the subject matter of this Agreement and all past dealing or industry custom.
- 12.13 Waiver. No provision of, right or privilege under this Agreement shall be deemed to have been waived by any act, delay, omission or acquiescence on the part of any party, its agents or employees, but only by an instrument in writing duly executed by both parties. No waiver by any party of any breach or default of any provision of this Agreement by the other party shall be effective as to any other breach or default, whether of the same or any other provision and whether occurring prior to, concurrent with, or subsequent to the date of such waiver.
- 12.14 Modification. Trackstar may change these Terms from time to time at its discretion. The date on which these Terms were last modified will be updated at the top of these Terms. Trackstar will use reasonable efforts to provide Customer with reasonable notice prior to any amendments or modifications taking effect, either by emailing the email address associated with Customer’s account on the Platform or by another method reasonably designed to provide notice to Customer. If Customer accesses or uses the Platform after the effective date of the revised Terms, such access and use will constitute Customer’s acceptance of the revised Terms. Except as set forth in the foregoing, no other amendment or modification of these Terms will be effective unless in writing and signed by both Trackstar and Customer.
- 12.15 Counterparts. This Agreement may be executed in one or more counterparts, all of which shall constitute the same instrument.