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Terms & Conditions

TraknProtect General Terms & Conditions

 

These General Terms & Conditions (these “Terms”) are incorporated into the Agreement entered into by TraknProtect and the Customer identified on the applicable Agreement Cover Page. These Terms govern TraknProtect’s provision and Customer’s receipt and use of the Products & Services (as defined below). Capitalized terms used in these Terms but not defined have the meanings given to them in the Cover Page.

1. Scope

Subject to Customer’s compliance with these Terms, TraknProtect will provide to Customer the software applications and related products and services described in the Purchase Order (together, “Products & Services”). Products & Services includes the Software Services, the Documentation, the Support Services, the Professional Services, and the Hardware (each as defined below).

2. Software Services

  • Definition of Software Services and Documentation. “Software Services” means the software applications provisioned to the Customer by TraknProtect as well as any upgrades, updates, and other changes and modifications to those software applications. “Software Services” includes, for the avoidance of doubt, any related mobile applications and administrative websites made available by TraknProtect. TraknProtect reserves the right, in its sole discretion, to enhance, improve, update, and otherwise modify the Software Services at any time, provided those modifications do not materially reduce any functionality of the Software Services. “Documentation” means any training guides, technical documents reports, online dashboard contents, and other document related to the Products & Services that TraknProtect may make available to Customer.

  • License Grant. TraknProtect hereby grants to Customer a nonexclusive, revocable (but only upon termination or suspension as described in these Terms), nontransferable, non-assignable, non-sublicensable, limited license to, for the duration of the Subscription Term (as defined below), (i) access and use the Software Services solely for Customer’s internal business purposes and (ii) use and make a reasonable number of copies of the Documentation for Customer’s authorized employees and contractors solely for Customer’s internal business purposes. Customer will use the Software Services only in connection with the Customer premises identified on the Purchase Order.

  • Software Access. Customer will limit access to the Software Services and Documentation to its employees and contractors who both need to access the Software Services for purposes of their work for Customer and are bound by use restrictions and confidentiality obligations no less restrictive than those contained in these Terms. Customer will ensure that each such employee and contractor agree to any end-user terms contained in or on Software Services consisting of mobile applications prior to using the Software Services. If any provision of these Terms conflicts with any provision of any such end-user terms, then these Terms will control. Customer is responsible for all access to and use of the Software Services and Documentation by its employees, contractors, and other users. Customer is responsible for maintaining the confidentiality of any usernames, passwords, and other log-in credentials used to access or use the Software Services, including those assigned by TraknProtect. Customer will promptly notify TraknProtect of any unauthorized access to or use of the Software Services or Documentation of which Customer becomes aware.

  • Software Use Restrictions. Customer may not, nor may it authorize any other person to, (i) obscure, remove, or alter any proprietary markings, designations, or notices in or on the Software Services or Documentation; (ii) reconfigure, reverse-engineer, disassemble, decompile, discover the source code of, prepare any derivative works of, update, combine with other computer code, or otherwise modify the Software Services or Documentation; (iii) develop, assist in developing, or have developed on its any other person’s behalf software or services that compete with or are substantially similar to the Software Services; (iv) commercially exploit the Software Services or Documentation; or (v) use the Software Services for unlawful purposes.

3. ​Support Services

TraknProtect will, at no additional cost to Customer, provide remote technical support for the Software Services via telephone and email during TraknProtect’s normal business hours (“Support Services”). Support Services includes updating the range of any beacon or gateway Hardware installed under this Agreement upon Customer’s written request. If any Support Services require TraknProtect personnel to visit Customer’s premises after the applicable Hardware Warranty Period (as defined below) has ended, Customer will be responsible for paying fees for those support services at TraknProtect’s then-current hourly rates. Customer will cooperate with TraknProtect in its performance of the Support Services, including by providing TraknProtect with data, equipment, information, personnel access, and other assistance and materials as TraknProtect may reasonably request. Customer will maintain back-up copies of all data used in connection with the Software Services. TraknProtect is not responsible for providing Support Services if: (i) Customer uses the Software Services in combination with any hardware or software not authorized by TraknProtect in writing or by the Documentation; (ii) Customer uses the Software Services except in accordance with this Agreement; (iii) Customer uses any release or version of the Software Services other than the most current release or version; (iv) the request or need for Support Services results from Customer’s or its employees’ or contractors’ misuse, abuse, negligence, willful misconduct, noncompliance with regulations, violations of law, or breach of this Agreement; or (v) the request or need for Support Services results from a force majeure event (as contemplated below). Additionally and notwithstanding anything to the contrary in this Agreement, Customer understands and agrees that TraknProtect is not responsible for providing any maintenance or support services for any of Customer’s computers, other hardware, operating systems, databases, Internet, or wireless networks (including Wi-Fi), or any software not directly licensed from TraknProtect (together, “Customer Systems”).

4. Professional Services

  • Professional Service. TraknProtect is responsible for providing all necessary personnel for the performance of all installation, configuration, setup, training, and other professional services as may be described in the Purchase Order (together, “Professional Services”). TraknProtect is responsible for selecting, hiring, managing, training, paying, and determining all other terms of engagement for individuals and entities assigned to perform the Professional Services. To the extent TraknProtect's personnel perform Professional Services at premises owned, operated, or controlled by Customer, TraknProtect will comply with all reasonable security requirements in effect at those premises that have been provided to TraknProtect in advance and in writing.

  • Installation. Upon mutual execution of this Agreement, TraknProtect will provide an installation date(s) for the deployment of the Hardware identified above at the Property (“Installation Date”). Customer will ensure that it provides staff to assist TraknProtect during installation that is trained on the objective of the TraknProtect solution. Customer will provide all cooperation, resources, and access to premises as TraknProtect may reasonably request, to enable TraknProtect to perform its obligations under this Agreement. Customer will ensure that the TraknProtect installation team has access to the rooms where the Gateways will be installed during Installation Date(s) and an employee will be made available to accompany the TraknProtect installation team(s) to occupied rooms, to enable installation of the Gateways. Should the TraknProtect installation team be required to return to the Property due to rooms were not adequately made available, Property will pay a half-day minimum of $490 for up to four (4) hour return trip or $949 for a full-day return trip for the TraknProtect installation team to complete the installation.

  • Self-Installations. Where a Customer elects to self-install the TraknProtect Solution, the Customer shall complete the installation in accordance with the TraknProtect Installation Guide within thirty (30) days of receipt of equipment. Should the Customer fail to complete the installation within the thirty (30) day period, TraknProtect at its sole discretion may charge $490 for half-day support or $949 for full-day support for the installation after the thirty (30) day period.

    • The installation of the hardware shall be in a mutually agreed upon location within the guestrooms and restrooms, to ensure consistency and reliability of the solution. Customer shall ensure that the original agreed upon location of the gateways is not modified without prior written notification adn agreement of TraknProtect.​

  • Customer Systems. Notwithstanding anything to the contrary in any Purchase Order, Customer understands and agrees that TraknProtect is not obligated to provide any professional services with respect to Customer systems not directly licensed from TraknProtect including but not limited to wireless access points, IoT controllers etc.

  • Third-Party Contractors. TraknProtect may engage third-party contractors to provide the Professional Services. If TraknProtect assigns contractors to perform the Professional Services, TraknProtect is responsible for any breach of these Terms by those contractors.

  • Acceptance of Professional Services. Professional Services are deemed accepted by Customer upon the earliest of: (a) execution of TraknProtect's installation checklist (if applicable); (b) written (or electronic) indication by Customer of acceptance; or (c) five (5) days after TraknProtect has notified Customer that Professional Services have been completed.

5. Hardware

TraknProtect will deliver to Customer any hardware identified in the Purchase Order (“Hardware”) in the manner described in the applicable Purchase Order. With regards to Hardware shipped to Customer, title and risk of loss to the Hardware pass to Customer upon delivery to a carrier selected by TraknProtect. With regards to Hardware installed by TraknProtect at Customer’s premises, title and risk of loss to the Hardware pass to Customer upon delivery of the Hardware at the applicable Customer premises. Hardware is deemed accepted five (5) days after delivery to applicable Customer premises. Customer may not, nor may it authorize any other person to, (i) obscure, remove, or alter any proprietary markings, designations, or notices in or on the Hardware; (ii) uninstall, disassemble, tamper with, abuse, neglect, reconfigure, modify, or reverse-engineer the Hardware; (iii) develop, assist in developing, or have developed on its any other person’s behalf products that compete with or are substantially similar to the Hardware; or (iv) use the Hardware for any purpose other than as intended in connection with the Software Services and any applicable Documentation.

  • If as part of this Agreement, the Customer seeks to utilize the TraknProtect integration with their existing or new Wi-Fi access points (“WAPs”) at its Property, Customer understands and represents that Customer will procure and install the following: 

i. WAPs from their own Hospitality Service Provider;

ii. All additional necessary hardware (such as internet-of-things (IoT) modules), controller(s) or

iii. Any WAP software to enable the integration​as may be required for such WAPs to replace the TraknProtect Gateways. The Customer understands and agrees that the cost of such WAPs or any related hardware or software is not included in this Agreement and TraknProtect does not install such hardware or software. However, Customer permits TraknProtect to obtain any and all data necessary from the WAP manufacturer to implement the integration for the deployment of the TraknProtect solution(s) contemplated in this Agreement.

6. Customer Obligations

Customer is solely responsible for the following:

  • Setting up, maintaining, and operating its information technology infrastructure, including Customer Systems, as necessary to access and use the Software Services, whether that infrastructure is operated directly by Customer or through the use of third parties sourced by Customer.

  • Customer’s internet access and Wi-Fi must have sufficient bandwidth and speeds to access and use the Software Services. Customer will assign personnel with relevant training and experience to work in consultation with TraknProtect.

  • Customer will provide all cooperation, resources, and premises access as TraknProtect may reasonably request to enable TraknProtect to perform its obligations and exercise its rights under this Agreement and as may be required by the Purchase Order.

  • TraknProtect is not liable for any delay or failure of performance to the extent caused by Customer’s delay in performing or failure to perform any of its obligations under this Agreement and as may be required by the Purchase Order.

  • Customer will ensure there are sufficient power outlets available and adequate Wi-Fi coverage where the Gateways are to be installed.

  • Customer will ensure that the housekeeping staff is educated on the purpose of the system to help prevent incidents of tampering of and/or damage to the TraknProtect equipment.

  • Customer will conduct regular, and at least quarterly, self-tests on the safety buttons, as scheduled by TraknProtect, to ensure that the safety buttons are in good working condition.

  • Customer will provide employees to lift and move furniture or fixtures in the rooms that are in excess of 25 pounds since TraknProtect employees and contractors do not lift or move furniture or fixtures that in excess of 25 pounds. Customer will provide employees to lift and move furniture or fixtures back to their original place in the room that are in excess of 25 pounds.

7. Fees; Expenses

  • Fees. In consideration of the provision of Products & Services by TraknProtect and the rights granted to Customer under this Agreement, Customer shall pay all fees as set forth in the invoice submitted by TraknProtect in the applicable Purchase Order (“Fees”). Fees are exclusive of any applicable sales taxes, shipping, import taxes, customs & duties and similar charges. Except as may be expressly provided by Section 14.B, all Fees are nonrefundable.

  • Invoices. Fees for the Software Services will be invoiced annually in advance unless otherwise stated in the Purchase Order. Fees for all other Products & Services will be invoiced as stated in the Purchase Order. Customer will pay Fees to TraknProtect within thirty (30) days of the date of the invoice but in no event more than forty-five (45) days after delivery of Products, and/or notification by TraknProtect of completion of any Services performed pursuant to the applicable Purchase Order.

  • Deposit:

    • The Customer shall pay seventy percent (70%) of the First Year Contract Value as Deposit within forty-five (45) days of execution of this Agreement.

    • TraknProtect will notify Customer in writing if any deposit paid by Customer pursuant to the applicable Purchase Order has not been used within 90 days of the date of the Purchase Order or the Agreement (i.e., Customer has not completed the installation Professional Services provided by TraknProtect within such 90-day period). If Customer still does not use its deposit within 30 days of its receipt of such notice, any such deposit is forfeited and TraknProtect can retain such amount and terminate the Agreement or Purchase Order.  In such event, Customer must enter into a new purchase order with TraknProtect and pay TraknProtect a new deposit in order to obtain the Products & Services, which purchase order may reflect increased fees and expenses.

    • ​If the Customer does not pay TraknProtect the deposit within 45 days after the date of the Purchase Order or the Agreement, TnP can in its sole discretion terminate the Agreement or Purchase Order without liability or increase the Fees for the Professional Services or other fees and expenses in the Purchase Order if TnP has a price increase implemented for such services and expenses and Customer will pay such increased Fee

  • Balance Payments.

    • The Customer pay the Balance thirty percent (30%) of the First Year Contract Value and any other hardware, software, or support fees that may be due, within forty-five (45) days of receipt of the invoice. 

  • Expenses. Customer will reimburse TraknProtect the cost, without mark-up, of TraknProtect’s reasonable out-of-pocket expenses incurred during and in furtherance of the performance of the Products & Services, including without limitation all travel and accommodation expenses.

  • Additional Charges. Should the Customer provide incorrect and/or inaccurate floor plans, or WAP locations, TraknProtect may charge the Customer $125 per hour for a minimum of two (2) hours for additional time that may be required to ensure appropriate installation.​

  • Travel Expenses. Customer understands the installation is intended to be completed by an authorized third-party installation team on behalf of TraknProtect. Customer will reimburse TraknProtect the cost of the economy class flight, train or other transportation charges (such as mileage) for installer(s) travel costs to the Customer's property location. In addition, the Property will provide adequate accommodations for the duration of the Installation Dates during installation, on-site testing and training. The Property shall also pay a seventy-nine-dollar ($79.00) USD per diem per person for meals and incidental expenses. TraknProtect shall provide a receipt for the related travel costs to the Customer for reimbursement within a reasonable time after the Installation Date.

  • Late Payment. TraknProtect will provide receipts for those expenses to Customer upon Customer’s reasonable written request. Any amounts not paid when due will bear late charges equal to the rate of 1.0% per month or the maximum rate permitted by applicable law, whichever is less. Customer shall also reimburse TraknProtect for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which TraknProtect does not waive by the exercise of any rights hereunder), TraknProtect shall be entitled to suspend the provision of any Products & Services if the Customer fails to pay any amounts/fees when due hereunder and such failure continues for 30 days following written notice thereof.

8. Term; Termination

  • Term. The Agreement commences on the Effective Date and continues until terminated in accordance with this Agreement have expired or terminated.

  • Subscription Term. The “Initial Subscription Term” for Software Services is set forth in the applicable Purchase Order and commences on the start date identified in the applicable Purchase Order or, if the Purchase Order states otherwise, the time period stated in the Purchase Order. Unless the Purchase Order states otherwise, the Initial Subscription Term will automatically renew for successive twelve (12) month periods unless either party provides the other party with at least ninety (90) days’ prior written notice of non-renewal (each, a “Renewal Subscription Term”). The Initial Subscription Term and all Renewal Subscription Terms are, together, the “Subscription Term.” TraknProtect may increase Fees for any Renewal Subscription Term by providing Customer with written notice at least ninety (90) days prior to the commencement of that Renewal Subscription Term. Upon any such Fee increase, the applicable Purchase Order will be deemed to be amended accordingly.

  • Suspension. If the Customer fails to make timely payments within forty-five (45) days from receipt of invoices, TraknProtect shall notify the Customer of overdue invoices. If the Customer fails to make any and all outstanding payments within sixty (60) days of the invoice due date(s), TraknProtect may temporarily suspend the Customer's account and require the Customer to pay a Reactivation Fee in addition to the outstanding payments before unsuspending the account. Should the Customer fail to make all outstanding payments within ninety (90) days of the invoice due date, TraknProtect may at it's sole discretion terminate this Agreement and suspend all Customer access to any Platform Data (as defined below) or incident reports. 

  • Termination for Cause. Either party may terminate the Agreement for the other party’s material breach of the Agreement, provided the terminating party provides the breaching party with at least thirty (30) days’ prior written notice. The breaching party will have thirty (30) days from the date of receipt of the termination notice to cure the breach. Upon any termination by TraknProtect under this subsection, Customer will promptly pay TraknProtect all outstanding Fees and other amounts due under the Agreement or the Purchase Order, as applicable.

  • Termination Due to Insolvency. Either party may terminate the Agreement immediately upon written notice if the other party ceases to conduct business in the normal course, becomes insolvent, admits in writing its inability to meet its debts as they mature, makes an assignment for the benefit of creditors, commences any bankruptcy proceedings, or has commenced against it any bankruptcy proceedings that are not dismissed within sixty (60) days.

  • Obligations Upon Termination. Upon termination of the Agreement or any Purchase Order or upon expiration of any Subscription Term, (i) Customer and its employees and contractors will immediately cease all access to and use of the Software Services and Documentation; and (ii) Customer will promptly destroy or, at TraknProtect’s request, return to TraknProtect, all of TraknProtect’s Confidential Information in its possession, including deleting or rendering unusable all electronic files and data that contain that Confidential Information.

9. ​Intellectual Property Rights

TraknProtect and its suppliers and licensors, as applicable, are the exclusive owners of all right, title, and interest in and to the Software Services, all Documentation and materials, and all ideas, concepts, know-how, methodologies, and techniques related to the same, including all patent, copyright, trademark, trade secret, and other intellectual property rights, whether developed by or on behalf of TraknProtect prior to or during the term of the Agreement. TraknProtect will be free to use any general knowledge, experience, skills, ideas, concepts, techniques, and know-how that are retained in the memory of TraknProtect’s personnel in connection with these Terms or the Products & Services. TraknProtect is the exclusive owner of and Customer hereby irrevocably assigns to TraknProtect all right, title, and interest (including all intellectual property rights) in and to all feedback pertaining to the Products & Services as may be provided by Customer or Customer's employees or contractors, including suggestions, enhancements, recommendations, and other comments, but excluding any components that consist of Customer’s Confidential Information (as defined below). Customer understands that feedback may be used by or on behalf of TraknProtect for any purpose but that under no circumstances is TraknProtect required to use any feedback. Except as expressly stated in these Terms, no licenses or other rights, express or implied, are granted by TraknProtect to Customer under any patent, copyright, trademark, trade secret, or other intellectual property right of TraknProtect.

10. Platform Data

"Platform Data" means all data that is submitted or uploaded to the Software Services by or on behalf of Customer or otherwise collected by the Software Services in course of Customer’s use of the Products & Services, including geographical location information and other data pertaining to the use of the Hardware. “Platform Data” also includes all reports generated by the Software Services containing, based on, or reflecting that data. TraknProtect is the exclusive owner of all Platform Data and, accordingly, TraknProtect may copy, modify, prepare derivative works of, distribute, commercially exploit, and otherwise use Platform Data in any manner for its business purposes, provided that TraknProtect will not use Platform Data in a way that allows Customer or any particular individual to be identified by any third party.

11. Use of Marks; Publicity Cooperation

Neither party may, without the other party’s prior written consent, use the names, logos, or trademarks of the other party, except that Customer may identify TraknProtect as a vendor and TraknProtect may identify Customer as a customer in its marketing materials and on its customer lists. Customer will, to the extent permitted by Customer’s media and publicity policies, cooperate with TraknProtect’s reasonable requests in producing, participating in, and sharing testimonials and references regarding TraknProtect’s products and services.

12. Confidentiality

  • Confidential Information. “Confidential Information” is all information disclosed in connection with the Products & Services or the Agreement by or on behalf of either party (“Disclosing Party”) to the other party or otherwise obtained by the other party (“Receiving Party”), whether or not identified as “confidential,” that the Disclosing Party considers or protects as confidential and that is reasonably understood to be confidential given the content of the information and the circumstances of disclosure, including: marketing, advertising, distribution, and sales practices; financial information; customer and vendor lists and information; strategies, tactics, and business plans; business models; policies, methods, and processes; technical specifications; designs, drawings, schematics, models, and prototypes; software applications; computer code; technology; know-how; ideas; trade secrets; algorithms; and data. TraknProtect’s Confidential Information includes without limitation the Software Services, all Documentation, Platform Data, and the terms of the Agreement. Customer will not provide any personally identifiable information. Customer is solely responsible for any liability or obligations resulting from Customer's submission of personally identifiable information and will notify TraknProtect in writing if Customer ever becomes aware of any personally identifiable information submitted to allow TraknProtect to remove that personally identifiable information. Confidential Information may be in any form and includes all copies of Confidential Information. Confidential Information is solely the property of the Disclosing Party. Confidential Information does not include information that (i) is or becomes generally available to the public other than as a result of a direct or indirect disclosure by the Receiving Party; (ii) is or becomes available to the Receiving Party from a third-party source, provided the source is not under an obligation of confidentiality to the Disclosing Party; (iii) was lawfully known to the Receiving Party prior to its disclosure by or on behalf of the Disclosing Party; or (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. For the avoidance of doubt, nothing in this Section 12 will limit or otherwise impact TraknProtect’s ability to use Platform Data as described in Section 10.

  • Nonuse; Nondisclosure. The Receiving Party may not use the Disclosing Party’s Confidential Information for any purpose except as necessary to perform its obligations or exercise its rights under these Terms. The Receiving Party may not disclose the Disclosing Party’s Confidential Information except to its employees, contractors, and agents who have a need to know for purposes of performing the Receiving Party’s obligations or exercising the Receiving Party’s rights under these Terms, provided those individuals are bound by confidentiality obligations as least as stringent as those contained in this Section 12. The Receiving Party will use the same measures to protect the Disclosing Party’s Confidential Information from unauthorized use and disclosure as it uses to protect its own most confidential information, but in no event less than a reasonable degree of care. The Receiving Party will be responsible for any breaches of this Section 12 by its employees, contractors, and agents.

  • Third-Party Disclosure Requests. If a third party requests that the Receiving Party disclose the Disclosing Party’s Confidential Information pursuant to a subpoena, summons, search warrant, governmental order, or other lawful process, the Receiving Party will notify the Disclosing Party in writing promptly upon its receipt of the request (to the extent permitted by law) and will, at the Disclosing Party’s expense, provide cooperation as the Disclosing Party may reasonably request in resisting the release of the Confidential Information. If the Receiving Party remains obligated to release the requested Confidential Information, the Receiving Party may release that Confidential Information, provided it releases only the Confidential Information that the Receiving Party’s legal counsel advises is required to be released in order to comply with the request.

13. Warranties; Disclaimer

To enhance the safety and well-being of individuals across various industries by providing innovative safety solutions rooted in empathy and integrity

Except as may be expressly stated in this section 13 and to the maximum extent permitted by applicable law, the products & services are provided on an “as is,” “as available,” and “where is,” basis, without warranties of any kind. To the maximum extent permitted by applicable law, TraknProtect disclaims all warranties, express, implied, statutory, and otherwise, with regards to the products & services, including without limitation the warranties of merchantability, fitness for a particular purpose, title, and noninfringement, and any warranties arising from a course of dealing or usage in trade. TraknProtect does not warrant that the products & services will be free of error, viruses, or other harmful components, or that any defects will be corrected. TraknProtect does not guarantee the quality, accuracy, or availability of the products & services. Customer acknowledges and agrees that the software services may be subject to limitations, delays, and other problems inherent in the use of the internet, wireless networks (including Wi-Fi), and electronic communications. TraknProtect is not responsible for any delays, inaccuracies, delivery failures, or other failures or damage resulting from those problems or any other problems outside of TraknProtect’s reasonable and direct control, including without limitation customer’s internet, wireless networks (including Wi-Fi), and any third-party software. No advice or information, oral or written, obtained by customer from TraknProtect or in any manner from the products & services creates any warranty.

14. ​Indemnification

  • Indemnification by TraknProtect. TraknProtect will defend Customer from and against any third-party claims, complaints, actions, lawsuits, demands, and proceedings (together, “Claims”), and pay for any losses, liabilities, damages, judgments, settlements, fees, fines, penalties, costs, and expenses (including reasonable attorneys’ fees) (together, “Losses”) directly incurred as a result of those Claims arising out of or in connection with (i) the gross negligence, willful misconduct, or other tortious acts or omissions of TraknProtect; or (ii) an allegation that the Software Services as provided by TraknProtect and used as permitted by these Terms infringes, violates, or misappropriates the patent, copyright, trademark, trade secret of a third party (“IP Infringement Claim”).

  • IP Infringement Claim Exclusions and Procedures. TraknProtect has no obligations with respect to any IP Infringement Claim to the extent the IP Infringement Claim arises from use of the Software Services in any manner not expressly permitted by these Terms, modification or configuration of the Software Services by any person other than TraknProtect, use of the Software Services in combination with any software, hardware, or materials not provided or authorized in writing by TraknProtect, use of the Software Services for unlawful purposes, or TraknProtect’s compliance with Customer’s instructions. If an IP Infringement Claim arises or, in TraknProtect’s reasonable opinion, if an IP Infringement Claim is likely to disrupt Customer’s use of the Software Services, then TraknProtect will, at its own option and expense, (I) modify the infringing component(s) of the Software Services so as to make them non-infringing while maintaining similar functionality; (II) secure for Customer the right to access and use the infringing component(s) of the Software Services; (III) replace the Software Services with a compatible, functionally equivalent and non-infringing software service; or, (IV) if TraknProtect determines the foregoing options are not commercially reasonable, terminate the Agreement or the applicable Purchase Order(s) and provide Customer a pro rata refund of any recurring Fees paid for the infringing Software Services, provided Customer ceases all access to and use of the same. The obligations in this Section 14 are TraknProtect’s entire liability and Customer’s exclusive remedy for IP Infringement Claims.

  • Indemnification by Customer. Customer will indemnify, defend, and hold harmless TraknProtect, its affiliates, and its and their respective directors, officers, employees, owners, contractors, agents, and representatives from and against all Claims, as well as any Losses directly incurred as a result of those Claims, arising out of or in connection with (i) the gross negligence, willful misconduct, or other tortious acts or omissions of Customer or its employees or contractors; (ii) misuse of the Products & Services or any Documentation by Customer or its employees or contractors; or (iii) use of the Products & Services for unlawful purposes.

  • Indemnification Procedures. Upon learning of any Claim or Loss, the party seeking indemnification will notify the indemnifying party in writing; permit the indemnifying party to control the defense of the Claim or Loss at the indemnifying party’s own expense, provided the indemnified party may participate with counsel of its own choice at its own expense; and provide reasonable assistance to the indemnifying party, at the indemnifying party’s expense, in the defense of the Claim or Loss. Any failure by the indemnified party to satisfy these obligations will limit the indemnifying party’s indemnification obligations only to the extent that it suffers actual prejudice as a result of that failure. The indemnifying party may not enter into any settlement agreement, consent to the entry of any judgment, or otherwise settle any Claim or Loss without the indemnified party’s specific prior written consent, which consent may not be unreasonably withheld conditioned or delayed. If the indemnifying party does not assume full control over the defense of a Claim, the indemnified party has the right to defend against the Claim or Loss in any manner it deems appropriate at the indemnifying party’s expense.

15. Limitation of Liability

In no event will either party be liable under the agreement for any special, indirect, exemplary, incidental, punitive, or consequential damages, or loss of profits, loss of revenues, loss of business, loss of data, or costs of procurement of substitute goods or services, whether based on breach of contract, warranty, tort, or otherwise, and whether or not the damages were foreseeable, excluding any damages available under applicable law for violation of TraknProtect’s intellectual property rights. In any event, TraknProtect’s maximum liability under the agreement arising out of any claim whatsoever, regardless of the form of action, will be limited to the amount of fees paid or payable by customer under the applicable purchase order during the twelve (12)-month period immediately preceding the event that gave rise to the liability.

16. Compliance with Laws

Each party will perform its obligations and exercise its rights under these Terms in compliance with all applicable laws and regulations.

17. Force Majeure

Neither party will be liable for failure or delay in performing any obligation under the Agreement due to circumstances beyond its reasonable control that prevent it from performing its obligations, including without limitation acts of God or nature, epidemics, pandemics, actions of the government, fires, floods, strikes, civil disturbances, or terrorism, or power, communications, satellite, or network failures.

18. Audit; Suspension

Upon reasonable prior written notice and in a manner that does not unreasonably disrupt Customer’s day-to-day operations, TraknProtect and its designated representatives may, at TraknProtect’s expense, audit, examine, and make copies of data and other information in the possession or control of Customer that relate to or concern Customer’s compliance with these Terms. Additionally, TraknProtect may remotely monitor Customer’s use of the Software Services for purposes of evaluating compliance with these Terms. TraknProtect may suspend Customer’s access to the Software Services if TraknProtect reasonably suspects a material breach of these Terms or if any undisputed Fees remain unpaid for more than thirty (30) days following any due date. TraknProtect will use commercially reasonable efforts to notify Customer prior to any suspension.

19. Injunctive Relief

Customer’s breach of Sections 2 or 5 and either party’s breach of Sections 9, 11, or 12 would cause irreparable harm to the other party and monetary damages would be insufficient to remedy any that harm. Accordingly, in the event of actual or threatened breach of any of those sections, the nonbreaching party will be entitled to injunctive relief, without the need to post bond, prove damages, or meet any similar requirement, as well as any other remedy available at law or at equity.

20. Relationship of the Parties

TraknProtect is an independent contractor of Customer. The Agreement does not create any employment, agency, partnership, or joint venture relationship between the parties. Neither party has any authority to contract for or bind the other in any manner or make any representation or commitment on behalf of the other.

21. Notice

All notices, consents, and other communications permitted or required to be given under the Agreement must be in writing and addressed to the recipient’s address in this Agreement or such other address as the recipient provides in accordance with this section and will be deemed validly given upon delivery if personally delivered with fees prepaid, including by a recognized courier service; upon receipt if delivered by certified or registered United States mail, postage prepaid and return receipt requested, as indicated by the date on the signed receipt; or on the date the email is sent if via email, provided a hard copy is also provided. Where TraknProtect is the recipient, a copy of each communication must be sent to info@traknprotect.com in order to be valid.

22. Equal Opportunity Employer

TraknProtect is an equal opportunity employer and does not discriminate against any employee on the basis of race, color, religion, sex, sexual orientation, age, national origin, disability, or any other protected class status.

23. Governing Law

The Agreement is governed by the laws of the state of Illinois, without regard for its conflict of law principles. The Uniform Computer Information Transactions Act or any version thereof adopted by any state in any form does not apply to the Agreement. Venue is exclusively in the state or federal courts, as applicable, located in Cook County, Illinois, with respect to any dispute arising under the Agreement.

24. General

  • Entire Agreement. The Agreement is the entire agreement between the parties with respect to the subject matter of the Agreement and supersedes all previous agreements and understandings, whether oral or written, between the parties with respect to the subject matter of the Agreement. These Terms prevail over any of Customer's general terms and conditions or pre-printed regardless whether or when Customer has submitted its request for proposal, order, or such terms, or any other terms in a purchase order or similar purchasing document submitted by the Customer at any time. Provision of Product & Services to Customer does not constitute acceptance of any of Customer's terms and conditions and does not serve to modify or amend these Terms. The Agreement may be modified only in a writing signed by both parties. If any provision of these Terms conflicts with any provision of any Purchase Order, these Terms will control unless the Purchase Order expressly amends these Terms

  • Waiver. Waiver of any term of the Agreement must be in writing and signed by the party granting the waiver. The waiver by either party of any term of the Agreement will not be deemed a future waiver of the same term or a waiver of any other term.

  • Severability. If any term of the Agreement is held to be unenforceable in any jurisdiction, that term will be ineffective as to that jurisdiction to the extent of the invalidity or unenforceability and without invalidating any other term of the Agreement.

  • Survival. All provisions of these Terms that by their nature are intended to extend beyond the termination or expiration of this Agreement for any reason shall survive the termination or expiration of this Agreement.

  • Assignment. Customer may not assign these Terms without TraknProtect’s prior written consent. TraknProtect may assign the Agreement without obtaining Customer’s consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning party of any of its obligations under this Agreement. The Agreement will inure to the benefit of and be binding upon the parties’ respective successors and permitted assigns.

  • Headings. The headings in the Agreement are for convenience only and will not be construed to affect the construction or interpretation of any terms of the Agreement.

  • Counterparts.  This Agreement may be executed in one or more counterparts, each of which will be an original and together all counterparts are a single instrument.

  • No Presumption.  This Agreement has been carefully reviewed and fully negotiated by the parties.  It shall therefore not be construed against either party on the grounds that all or any section of the Agreement was drafted by any particular party.

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