Terms of Service for Trakref applications

ATTENTION! THE FOLLOWING TERMS AND CONDITIONS (“TERMS OF SERVICE”) WILL BE LEGALLY BINDING ON CUSTOMER UPON EXECUTION OF THE TRAKREF STANDARD SUBSCRIPTION SERVICES AGREEMENT. CUSTOMER SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE BEFORE EXECUTING THE AGREEMENT.

Section Headings and Numbers.

Certain Sections may have been renamed and/or renumbered in this document for convenience only and such renaming and/or renumbering shall not affect the validity, construction or interpretation of the Agreement. References in the Trakref Subscription Services Agreement to any Section names or numbers under this document shall be deemed to be a reference to the identified or corresponding provisions in this document to accomplish the reasonable intent and objectives of such provisions to the greatest extent possible under applicable law.

Definitions
1. “Affiliates”
  Means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with a party to this Agreement, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of such party.
2. “Confidential Information”
  Means: (a) Customer Data; (b) the terms of this Agreement and (c) any commercial, financial, marketing, business, technical or other data, security measures and procedures, know-how or other information disclosed by or on behalf of the disclosing party to the receiving party for purposes arising out of or in connection with this Agreement, that: (i) in the case of information in tangible form, is marked “confidential” or “proprietary;” (ii) in the case of information disclosed orally, visually or any other intangible form, is designated confidential or proprietary at the time of disclosure, and if disclosed orally, is summarized in reasonable detail in a writing delivered to the receiving party within ten (10) days following disclosure; (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary; and (iv) will include any reproduction of such information in any form or medium, or any part of such information. The following shall not be deemed Confidential Information: (1) information that was in the public domain at the time of its disclosure, or which becomes public domain property through no fault of the receiving party; (2) information that was rightfully in the receiving party’s possession without restriction prior to disclosure; (3) information that was rightfully disclosed to the receiving party by a third party without restriction (4) information that was independently developed by employees and/or contractors of the receiving party who did not have access to and without use of or reference to the disclosing party’s Confidential Information and (5) aggregate data collected or generated by Trakref or on behalf of Trakref regarding Trakref’s products and services (for purposes of providing or improving Trakref products and services, benchmarking system performance, preparing statistics and system metrics, marketing and other purposes) that does not contain any personally identifiable or Customer-specific information.
3. “Customer Data”
  Means all electronic data or information submitted to and stored in the Service by Users. “Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service.
4. “Estimate/Order Form”
  Means a Trakref estimate, renewal notification or order form in the name of and executed by Customer or its Affiliate and accepted by Trakref which specifies the Service, and any Support Services and/or Professional Services to be provided by Trakref subject to the terms of this Agreement.
5. “Help Documentation”
  Means the online English language help center documentation describing the Service features, including User Guides which may be updated from time to time.
6. “Professional Services”
  Means the general consulting, implementation and/or training services to be provided to Customer pursuant to (i) the Trakref Professional Services Agreement, and (ii) a Statement of Work (as defined in such professional services agreement).
7. “Service”
  Means, collectively, Trakref’s online business application suite that is procured by Customer from Trakref in the Estimate/Order Form and any subsequent Estimate/Order Form from time to time, including associated offline components, but excluding Third Party Applications, Support Services and Professional Services.
8. “Support Services”
  Means Trakref’s supplemental, fee-based technical support services to be provided to Customer pursuant to the terms for Support Services.
9. “Third Party Applications”
  Means applications, integrations, services, or implementation, customization and other consulting services related thereto, provided by a party other than Trakref, as further described in Section 2.4 (“Third Party Applications”) that interoperate with the Service.
10. “Users”
  Means individuals who are authorized by Customer to use the Service pursuant to this Agreement or as otherwise defined, restricted or limited in an Estimate/Order Form or amendment to this Agreement, for whom subscriptions to a Service have been procured, and who have been supplied user identifications and passwords by Customer (or by Trakref at Customer’s request). Users may include but are not limited to Customer’s and Customer’s Affiliates’ employees, consultants, contractors and agents.
11. “User Guides”
  Mean the online English language user guides for the Service, accessible via login at http://www.trakref.com (under “Help”), as updated from time to time.
12. “Electronic Communications”
  Means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service.
13. “Service”
  Means Trakref online business application as described in the applicable User Guides that is purchased by Customer from Trakref in the Estimate/Order Form and any subsequent Estimate/Order Form from time to time, including associated offline components, but excluding Third Party Applications and implementation services.
14. “User Content”
  Means any such content that is not created by Trakref or Dealer but that is uploaded to the Site by users including Dealer’s customers is made available to Customer or other users through the Site, including, without limitation, text, data, graphics, photographs, artwork, hypertext links or other material, websites and content proximately reachable from such User Content
Terms of Service.
Customer acknowledges and agrees to the following terms of service, which together with the terms of the Trakref Subscription Services Agreement entered into between Customer and Trakref, shall govern Customer’s access and use of the Service (collectively, the “Agreement”). Capitalized terms not otherwise defined in these Terms of Service shall have the meaning given to them in the Agreement signed by Customer. In addition, Customer agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new service(s) subsequently purchased by the Customer will be subject to this Agreement. Trakref may modify these terms of service, as well as its Privacy Policy, at any time, for any or no reason. Such modified terms and conditions will become effective ten (10) days after they are initially posted (unless Trakref is required by law to modify such terms and conditions in less than ten (10) days. Continued use of the Service after such modified terms and conditions have been posted will constitute acceptance thereof and agreement to be bound by such modified terms.
1. Accuracy of Customer’s Contact Information.
  Customer shall provide accurate, current and complete information on Customer’s legal business name, address, email address, and phone number, and maintain and promptly update this information if it should change.
2. Users: Passwords, Access, And Notification.
  Customer shall authorize access to and assign unique passwords and user names to the number of Users procured by Customer on the Estimate/Order Form. User logins are for designated Users and cannot be shared or used by more than one User. Customer will be responsible for the confidentiality and use of User’s passwords and user names. Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Customer’s account. Trakref will act as though any Electronic Communications it receives under Customer’s passwords, user name, and/or account number will have been sent by Customer. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service and shall promptly notify Trakref of any unauthorized access or use of the Service and any loss or theft or unauthorized use of any User’s password or name and/or Service account numbers.
3. Customer Must Have Internet Access.
  In order utilize the Service, Customer must have or must obtain access to the World Wide Web, either directly or through devices that access Web-based content. Customer must also provide all equipment necessary to make such (and maintain such) connection to the World Wide Web. Customer understands that DSL, cable, or other high speed Internet connection is required for proper performance of the Service.
4. General Restrictions.
  Customer is responsible for all activities conducted under its User logins and for its Users' compliance with this Agreement. Customer’s use of the Service shall not include service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single User login, or time-sharing of the Service. Customer shall not and shall not permit any third party to: (a) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Service or any part thereof or otherwise attempt to discover any source code or modify the Service in any manner or form unless expressly allowed; (b) access or use the Service to circumvent or exceed Service account limitations or requirements; (c) use the Service for the purpose of building a similar or competitive product or service, (d) obtain unauthorized access to the Service (including without limitation permitting access to or use of the Service via another system or tool, the primary effect of which is to enable input of requests or transactions by other than authorized Users); (e) use the Service in a manner that is contrary to applicable law or in violation of any third party rights of privacy or intellectual property rights; (f) publish, post, upload or otherwise transmit Customer Data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; or (g) use or permit the use of any tools in order to probe, scan or attempt to penetrate or benchmark the Service. Customer shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to privacy, electronic communications and anti-spam legislation. (h) Customer shall not permit Users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (i) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located. Customer will not send any Electronic Communication from the Service that is unlawful, harassing, libelous, defamatory or threatening. Except as permitted by this Agreement, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the Service by any means other than through the interfaces that are provided by Trakref. Customer shall not do any "mirroring" or "framing" of any part of the Service, or create Internet links to the Service which include log- in information, user names, passwords, and/or secure cookies. Customer will not in any way express or imply that any opinions contained in Customer’s Electronic Communications are endorsed by Trakref. Customer shall ensure that all access and use of the Service by Users is in accordance with the terms and conditions of this Agreement. Any action or breach by any of such User shall be deemed an action or breach by Customer.
5. Third Party Applications.
  Trakref may offer certain Third Party Applications under Estimate/Order Forms. Any procurement of such Third Party Applications by Customer shall be subject to the terms specified in such Estimate/Order Forms. In addition, Trakref or third party providers may offer Third Party Applications through the Service or otherwise related to Customers’ use of the Service. Except as expressly set forth in the Estimate/Order Form, Trakref does not warrant any such Third Party Applications. Any procurement by Customer of such Third Party Applications or services is solely between Customer and the applicable third party provider. Customer may not use Third Party Applications to enter and/or submit transactions to be processed and/or stored in the Service, unless Customer has procured the applicable subscription to the Service for such use and access. Trakref is not responsible for any aspect of such Third Party Applications that Customer may procure or connect to through the Service, or any descriptions, promises or other information related to the foregoing. If Customer installs or enables Third Party Applications for use with the Service, Customer agrees that Trakref may enable such third party providers to access Customer Data as required for the interoperation of such Third Party Applications with the Service, and any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider pursuant to a separate privacy policy or other terms governing Customer’s access to or use of the Third Party Applications. Trakref shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Third Party Applications or third party providers. No procurement of such Third Party Applications is required to use the Service.
6. Transmission of Data.
  Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to use of the Service. Customer is responsible for securing DSL, cable or another high speed Internet connection and up-to-date “browser” software in order to utilize the Service. Customer expressly consents to Trakref’s interception and storage of Electronic Communications and/or Customer Data, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Trakref. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Trakref is not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by Trakref, including, but not limited to, the Internet and Customer’s local network.
7. Service Level.
  During the Term, the Service will meet the service level specified in the “Service Level Commitment” located in Schedule I, If the Service fails to achieve the service level, then Customer will be entitled, as its sole and exclusive remedy, to a credit for the Service in accordance with the terms set forth in the Service Level Commitment. The Service’s system logs and other records shall be used for calculating any service level events.
8. Trakref’s Support Services and Professional Services.
  As part of the Service, Trakref will provide Customer with Help Documentation and other online resources to assist Customer in its use of the Service. Trakref also offers optional “for fee” Support Services and Professional Services. Support. Trakref will make commercially reasonable efforts to promote Customer’s successful utilization of the Service, including but not limited to providing Customer with User Guides, Knowledge Base and online help, as well as optional and “for fee” training classes. Trakref also offers customer support and professional services consultation. Customer acknowledges that Trakref has extensive experience helping Customers improve utilization and realization of benefits of the Service, and that not following the advice of Trakref or engaging Trakref in the provision of professional services may substantially limit Customer’s ability to successfully utilize the Service or to enjoy the power and potential of the Service.
9. Confidentiality.
  Each party agrees to use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (at all times exercising at least a commercially reasonable degree of care in the protection of such confidential information) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by Customer. Either party may disclose Confidential Information on a need to know basis to its Affiliates, contractors and service providers who have executed binding written agreements requiring confidentiality and non-use obligations at least as restrictive as those in this Section. For purposes of this Agreement, confidential information shall include the terms of this Agreement, Customer Data, and any information that is clearly identified in writing at the time of disclosure as confidential (“Confidential Information”). Each party agrees: (a) to keep confidential all Confidential Information disclosed to it by the other party or by a third-party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights under this Agreement; and (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. Notwithstanding the foregoing, this Section 2.9 will not prohibit the disclosure of Confidential Information to the extent that such disclosure is permitted by law or order of a court or other governmental authority or regulation. With respect to any information received by either party from the other as a result of any other relationship between the parties other than in the course of performance under this Agreement (i.e., business development, partnership, alliance, etc.), the parties will abide by the terms and conditions of any applicable Nondisclosure Agreement (or similar agreement) executed between the parties.
10. Ownership of Customer Data.
  As between Trakref and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer. Customer acknowledges and agrees that in connection with Service, Trakref as part of its standard Service offering makes daily backup copies of the Customer Data in Customer’s “live” account and stores and maintains such data for a period of time consistent with Trakref standard business processes, which period shall not be less than one year.
11. Trakref Intellectual Property Rights.
  All rights, title and interest in and to the Service (including without limitation all intellectual property rights therein and all modifications, extensions, customizations, scripts or other derivative works of the Service provided or developed by Trakref) are owned exclusively by Trakref or its licensors. Except as provided in this Agreement, the rights granted to Customer do not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. Customer grants Trakref a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Service (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by Customer or any Users related to the operation or functionality of the Service. Any rights in the Service or Trakref’s intellectual property not expressly granted herein by Trakref are reserved by Trakref. Trakref service marks, logos and product and service names are marks of Trakref. Customer agrees not to display or use the Trakref Marks in any manner without Trakref’s express prior written permission.
12. U.S. Government Rights.
  The Service is a “commercial item” as that term is defined at FAR 2.101. If Customer or User is a US Federal Government (Government) Executive Agency (as defined in FAR 2.101), Trakref provides the Service, including any related software, technology, technical data, and/or professional services in accordance with the following: (a) if acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to the public as defined in this Agreement; or (b) if acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement. In addition, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative Agency or Federal Judicial Agency shall obtain only those rights in technical data and software customarily provided to the public as set forth in this Agreement. If any Federal Executive Agency, Federal Legislative Agency, or Federal Judicial Agency has a need for rights not conveyed under the terms described in this Section, it must negotiate with Trakref to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement to be effective. This U.S. Government Rights Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Agreement.
13. Dispute Resolution.
  (a) The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. Except as provided in 2.14(b), each party agrees that before it seeks mediation, arbitration, or any other form of legal relief, it shall provide written notice to the other of the specific issues in dispute (and referencing the specific portions of any contract between the parties and which are allegedly being breached). Within thirty days after such notice knowledgeable executives of the parties shall hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith to resolve the dispute. Mediation may be commenced by a party providing a written request for mediation setting forth the subject of the dispute and the relief requested. The parties will cooperate in selecting a single mediator and scheduling a mediation, which should take place within 45 days following a request for mediation. The mediator shall be a retired judge who has had experience with technology disputes. The parties agree that they will participate in the mediation in good faith and share equally in its costs. The mediation shall take place in either Nashville or Davidson County, Tennessee. (b) The dispute resolution procedures in this Agreement shall not apply prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.
14. Storage Limits.
  Trakref currently limits the amount of storage of attachments and files, not including database storage to 250GB. Any customers using storage in excess of this limit will be charged additional fees.
15. Copyright Infringement.
  Trakref is committed to respecting the intellectual property rights of others, and expects users of the Sites and Services to do the same. Trakref may terminate your registration with the Site or deny Customer or any user access to or use of the Site and/or Service if Customer or any user infringes, or are believed to be infringing, a copyright or other intellectual property right. In addition, Trakref reserves the right to remove, or disable access to, infringing material.
Warranties.
1. Warranty of Functionality.
  Trakref warrants that: (i) the Service will achieve in all material respects the functionality described in the User Guides applicable to the Service procured by Customer, and (ii) such functionality of the Service will not be materially decreased during the then-current subscription term. Customer’s sole and exclusive remedy for Trakref’s breach of this warranty shall be that Trakref shall be required to use commercially reasonable efforts to modify the Service to achieve in all material respects the functionality described in the User Guides and if Trakref is unable to restore such functionality, Customer shall be entitled to terminate the Agreement and receive a pro-rata refund of the subscription fees paid under the Agreement for its use of the Service for the terminated portion of the then-current subscription term. Trakref shall have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem, and such notice must be sent to ops@trakref.com. The warranties set forth in this Section are made to and for the benefit of Customer only. Such warranties shall only apply if the applicable Service has been utilized in accordance with the User Guides, this Agreement and applicable law.
2. Warranty of No Malicious Code.
  Each party warrants that it will not introduce viruses, Trojan horses, worms, spyware, or other such malicious code (“Malicious Code”) into the Service.
3. Security, Data Integrity and Backup Warranty.
  Trakref warrants during the Term of this Agreement that Trakref will use commercially reasonable efforts to safeguard and accurately maintain Customer Data, utilizing at a minimum industry standard security and backup procedures. In the event of a breach of this provision, Trakref will use commercially reasonable efforts to restore the Customer’s Data as quickly as possible but in any case not to exceed three (3) business days.
Disclaimer of Warranties.
EXCEPT AS STATED IN SECTION 3.1 AND 3.2 ABOVE, TRAKREF DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 3 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY TRAKREF. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS STATED IN SECTIONS 2.6, 3.1, and 3.2 ABOVE, THE SERVICE IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS FOR COMMERCIAL USE ONLY. TRAKREF EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE SERVICE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
Limitations of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE SUCH DAMAGES SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN THE FOLLOWING PARAGRAPH.
MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY LICENSE, USE OR OTHER EMPLOYMENT OF THE SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY DUTY, OR OTHERWISE, SHALL BE AN AMOUNT EQUAL TO THE EQUIVALENT OF TWELVE (12) MONTHS OF SUBSCRIPTION FEES APPLICABLE AT THE TIME OF THE EVENT, AND IN THE EVENT OF A BREACH OF SECTION 2.9 (CONFIDENTIALITY) OF THESE TERMS OF SERVICE, SUCH MAXIMUM LIABILITY OF EITHER PARTY SHALL BE AN AMOUNT EQUAL TO TWO (2) TIMES THE EQUIVALENT OF 12 MONTHS OF SUBSCRIPTION FEES APPLICABLE AT THE TIME OF THE EVENT. NOTWITHSTANDING THE PREVIOUS SENTENCE, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY TO THE EXTENT SUCH LIABILITY WOULD NOT HAVE OCCURRED BUT FOR THE OTHER PARTY’S FAILURE TO COMPLY WITH THE TERMS OF THIS AGREEMENT.
BOTH PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON THEIR LIABILITY. THE LIMITATIONS OF LIABILITY SET FORTH IN THE SECOND PARAGRAPH OF THIS SECTION SHALL NOT APPLY TO: (A) FEES DUE UNDER THIS AGREEMENT; (B) A BREACH OF SECTION 2.4 OF THESE TERMS OF SERVICE; OR (C) EITHER PARTY’S INDEMNITY OBLIGATIONS EXCEPT AS SET FORTH IN SECTION 6 BELOW.
Indemnification.
1. Infringement.
  Subject to the terms and conditions set forth in this Section 6, Trakref shall, at its own expense, defend Customer from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) alleging that the Service, as used in accordance with this Agreement, infringes such third party’s copyrights or trademarks, or misappropriates such third party’s trade secrets and shall indemnify Customer from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such a Claim.
  Trakref will have no liability for Claims to the extent arising from (a) use of the Service in violation of this Agreement or applicable law, (b) use of the Service after Trakref notifies Customer to discontinue use because of an infringement claim, (c) modifications to the Service not made by Trakref or made by Trakref based on Customer specifications or requirements, (d) use of the Service in combination with any non-Trakref software, application or service, or (e) services offered by Customer or revenue earned by Customer for such services.
  If a Claim of infringement as set forth above is brought or threatened, Trakref shall, at its sole option and expense, use commercially reasonable efforts either (a) to procure a license that will protect Customer against such Claim without cost to Customer; (b) to modify or replace all or portions of the Service as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement and refund to the Customer a pro-rata refund of the subscription fees paid for under the Agreement for the terminated portion of the Term. The rights and remedies granted Customer under this Section 6.1 state Trakref’s entire liability, and Customer's exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party.
2. Customer’s Indemnity.
  Subject to the terms and conditions set forth in this Section 6, Customer shall, at its own expense, defend Trakref from and against any and all Claims (i) alleging that the Customer Data or any trademarks or service marks, or any use thereof, infringes the copyright or trademark or misappropriates the trade secrets of a third party, or has caused harm to a third party, or (ii) arising out of Customer’s breach of Section 2.4 (General Restrictions) above and shall indemnify Trakref from and against liability for any Losses to the extent based upon such Claims.
3. Indemnification Procedures and Survival.
  In the event of a potential indemnity obligation under this Section 6, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section 6 are expressly conditioned upon the indemnified party’s compliance with this Section 6.3 except that failure to notify the indemnifying party of such Claim shall not relieve that party of its obligations under this Section 6 but such Claim shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section 6 shall survive termination of this Agreement for one year.
4. Disclosure of Customer Data.
  Trakref will indemnify, defend and hold Customer harmless from and against any Losses arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Customer which arise out of or result directly from Trakref’ gross negligence in preventing an authorized access to confidential Customer Data or Trakref’ willful misconduct in disclosing Customer Data, as determined by a court of competent jurisdiction in connection with a claim by a third party alleging a breach of confidentiality. Trakref will indemnify Customer up to an amount equal to five (5) times the equivalent of 12 months of license fees applicable at the time of the event, from and against any Losses incurred by Customer with respect to any third party claim, suit, action, or proceeding arising out of or relating to Trakref’ breach of Section 2.10 of this Agreement (which breach does not rise to the level of gross negligence in preventing unauthorized access to confidential Customer Data or willful misconduct in disclosing such confidential Customer Data as described in this Section 6.4). Trakref’ indemnification obligations under this Section 6.4 are expressly premised upon Customer (a) promptly giving Trakref notice of any such third party claim, suit, action, or proceeding; (b) giving Trakref sole control of the defense and related settlement negotiations; and (c) promptly providing Trakref with all reasonably available information and assistance necessary to perform Trakref’ obligations under this Section 6.4. Provided that Trakref complies with this Section 6.4, Customer shall be entitled as its sole and exclusive remedy to terminate the Agreement and receive a pro-rata refund of the license fees paid for under the Agreement for the terminated portion of the Term.
5. Survival.
  The indemnification obligations contained in this Section 6 shall survive termination of this Agreement for one year.
Suspension/Termination.
1. Suspension for Delinquent Account.
  Trakref reserves the right to suspend Customer’s and any Customer Affiliates’ access to and/or use of the Service and/or Support Services if any payment is due but unpaid but only after Trakref has provided Customer two (2) delinquency notices, and at least thirty (30) days have passed since the transmission of the first notice. Customer agrees that Trakref shall not be liable to Customer or to any Customer Affiliate or other third party for any suspension of the Service pursuant to this Section.
2. Suspension for Ongoing Harm.
  Trakref may with reasonably contemporaneous telephonic notice to Customer suspend access to the Service if Trakref reasonably concludes that Customer’s Service is being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of Customer’s Service is causing immediate, material and ongoing harm to Trakref or others. In the extraordinary event that Trakref suspends access to the Service, Trakref will use commercially reasonable efforts to limit the suspension to the offending portion of the Service and work with Customer to resolve the issues causing the suspension of Service. Customer agrees that Trakref shall not be liable to Customer nor to any third party for any suspension of the Service under such circumstances as described in this Section.
3. Termination for Cause, Expiration.
  Either party may immediately terminate this Agreement and all Estimates/Order Forms issued hereunder in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of written notice from the non-breaching party. Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and shall be sent to the General Counsel of the alleged breaching party at the address listed in the heading of this Agreement (or such other address that may be provided pursuant to this Agreement) (“Notice”). Upon termination or expiration of this Agreement, Customer shall have no rights to continue use of the Service. If this Agreement is terminated by Customer for any reason other than a termination expressly permitted by this Agreement, then Trakref shall be entitled to all of the fees due under this Agreement for the entire Term. If this Agreement is terminated as a result of Trakref’s breach of this Agreement, then Customer shall be entitled to a refund of the pro rata portion of any subscription fees paid by Customer to Trakref under this Agreement for the terminated portion of the Term.
4. Handling of Customer Data.
  In the Event of Termination. Customer agrees that following termination of Customer’s account and/or use of the Service, Trakref may immediately deactivate Customer’s account and that following a reasonable period of not less than 90 days shall be able to delete Customer’s account and related Customer Data from Trakref’s “live” site, while retaining Customer Data offsite storage. However, in the event that Customer’s Service with Trakref terminates, Trakref will grant Customer temporary, limited access to the Service for the sole purpose of permitting Customer to retrieve lawful Customer Data, provided that Customer has paid in full all good faith undisputed amounts owed to Trakref. Customer further agrees that Trakref shall not be liable to Customer nor to any third party for any termination of Customer access to the Service or deletion of Customer Data, provided that Trakref is in compliance with the terms of this Section 7.4.
Modifications; Discontinuation of Service.
1. To the Service.
  Trakref may make modifications to the Service or particular components of the Service from time to time and will use commercially reasonable efforts to notify Customer of any material modifications. Trakref reserves the right to discontinue offering the Service at the conclusion of Customer’s then current subscription term for such Service. Trakref shall not be liable to Customer nor to any third party for any modification of the Service as described in this Section.
2. To Applicable Terms.
  If Trakref makes a material change to any applicable Terms, then Trakref will notify Customer by either sending an email to the notification email address or posting a notice to the administrator in Customer’s account. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify Trakref via ops@trakref.com within thirty days after receiving notice of the change. If Customer notifies Trakref as required, then Customer will remain governed by the Terms in effect immediately prior to the change until the end of the then current subscription term for the affected Service. If the affected Service is renewed, it will be renewed under Trakref's then current Terms.

Schedule I

SERVICE LEVEL COMMITMENT FOR SUBSCRIBERS OF TRAKREF
Service Level Commitment

Trakref commits to provide 99.5% uptime with respect to the Customer’s Service during each month of the Term, excluding regularly scheduled maintenance times. If in any month this uptime commitment is not met by Trakref and Customer was negatively impacted (i.e., attempted to log into or access the Service and failed due to the unscheduled downtime of the Service), Trakref shall provide, as the sole and exclusive remedy, a service credit equal to one month’s fee for the use of the Service.

Scheduled and Unscheduled Maintenance

Regularly scheduled maintenance time does not count as downtime. Maintenance time is regularly scheduled if it is communicated in accordance with the notice section set forth below at least two full business days in advance of the maintenance time. Regularly scheduled maintenance time typically is communicated at least a week in advance, scheduled to occur at night on the weekend, and takes less than 10-15 hours each quarter. Trakref hereby provides notice that every Saturday night 10:00pm -10:20pm Pacific Time is reserved for routine scheduled maintenance for use as needed. Trakref in its sole discretion may take the Service down for unscheduled maintenance and in that event will attempt to notify customer in advance in accordance with the Notice section set forth below. Such unscheduled maintenance will be counted against the uptime guarantee.

Credit Request

In order to receive a credit under this service level commitment, Customer must request it simply by emailing Trakref at ops@trakref.com, within five days of the end of the applicable quarter. If Customer submits a credit request and does not receive a prompt automated response indicating that the request was received, Customer must resubmit the request because the submission was not properly received and will not result in a credit. Customers who are past due or in default with respect to any payment or any material contractual obligations to Trakref are not eligible for any credit under this Service Level Commitment. The service credit is valid for up to two years from the quarter for which the credit was issued. Trakref shall calculate any service level downtime using Trakref’ system logs and other records.

Updates/Notice

This Service Level Commitment may be amended by Trakref in its discretion but only after providing thirty day advance notice. Notices will be sufficient if provided to a user designated as an administrator of your Trakref account either: (a) as a note on the screen presented immediately after completion of the log in authentication credentials at the log in screen, or (b) by email to the registered email address provided for the administrator(s) for Customer’s account.

Exclusion of Beta Accounts

Trakref Beta and debugger accounts and other test environments are expressly excluded from this or any other service level commitment.