Traackr, Inc. (“Traackr”) has integrated a third-party payment platform into its influencer marketing tool to allow approved Customers to remit payment to influencers (“Payment Service”). The Payment Service allows approved Customers to fund a payment account specific to that Customer through which payments to influencers may be initiated (“Payment Account”). By using the Payment Service, Customer agrees to these Payment Service Terms (“Payment Terms”), which are governed by the Traackr Terms of Service at www.traackr.com/us-tos or the Agreement executed between the Parties (“Terms”) and constitute a part of the Agreement. Capitalized terms not defined in these Payment Terms are defined in the Terms or applicable Order Form. These Payment Terms are an agreement between Customer and Traackr. In the event of any conflict between these Payment Terms and the Terms with respect to the Payment Service, these Payment Terms will control.
1.1 Service. Throughout the Term (defined below), Traackr will provide the Payment Service in accordance with these Payment Terms, subject to approval as set forth in Section 1.2.
1.2 Onboarding and Approval. Upon execution of these Payment Terms, Customer must accurately complete the Payment Services intake form attached to these Payment terms as Exhibit A (“Intake Form”) to allow Customer and its Payment Services vendors to conduct diligence. Customer’s use of the Payment Services is contingent upon approval by Traackr and its vendors, in their sole and absolute discretion. Customer agrees to cooperate with the diligence process and complete any additional paperwork reasonably requested by Traackr or its Payment Services vendors from time to time (even after initial approval). Traackr or its vendors may conduct, and Customer hereby consents to, a credit check for Customer or contacting Customer’s banking institution to verify financial information of Customer. Traackr and its vendors may use third party service providers to assist with the diligence set forth in these Payment Terms and Customer agrees that its information may be disclosed to those third party services providers. In the event Customer is not approved to use the Payment Services for any reason, regardless of whether Customer’s use of the Payment Services has already commenced, these Payment Terms will immediately terminate and Traackr will have no further obligation to the Customer with respect to the Payment Services. Customer agrees to cooperate with Traackr and its vendors to provide all information and take actions reasonably necessary to comply with anti-money laundering and related obligations. Customer agrees that Traackr and its vendors may be required to disclose certain information regarding Customer or its transactions to enforcement agencies or other regulatory bodies. Customer acknowledges and agrees that each transaction that uses the Payment Services and each influencer designated as a payee is subject to review by Traackr, its Payment Services vendors and all involved financial institutions, which review process could prevent or delay the completion of a transaction and Traackr will not be responsible for any such prevention or delay. Customer also acknowledges and agrees that influencers may be required to provide information beyond their payment institution information in order to complete a transaction that uses the Payment Services.
1.3 Compliance. Traackr and the Payment Service do not provide tax, legal or accounting advice, despite the features available within the Payment Service. Customer is responsible for determining how to comply with all applicable tax, legal and accounting obligations in connection with Customer’s use of the Payment Service. Customer is solely responsible for remitting any amounts owed by Customer to the Tax authority or other governmental authority in a timely fashion according to IRS rules and regulations. Customer will update its settings within the Payment Service to reflect any material changes to Customer’s situation or circumstances that would affect Customer’s ability to comply with these Payment Terms or any conditions imposed by Traackr or its vendors to gain approval to use the Payment Service. Customer will update its settings within the Payment Service to reflect any material changes to Customer’s situation or circumstances that would affect Customer’s tax withholding rates, within 30 days of becoming aware of such material change; and Customer will inform Traackr of any errors or omissions Customer discovers that would affect a tax withholding calculation, within 30 days of becoming aware of such error or omission.
1.4 Customer Use. Subject to limitations set forth in the applicable Order Form, Customer’s use of the Payment Service is limited to the number of influencers, and number of users (each, a “User”), listed in the applicable Order Form. Each User must be an employee or consultant of Customer and/or under the direct control of Customer. Customer will be solely responsible for (i) maintaining the confidentiality of the Payment Service accounts and related passwords of its Users, (ii) all use of such accounts and related passwords; and (iii) all activity that occurs in the Customer’s account on the Payment Platform, including the acts and omissions of its Users. Customer must keep all information in its account current at all times. Customer consents to Traackr updating Customer’s account information from time to time based on information provided by Customer, Customer’s bank or other services providers. Traackr will in no way be liable to Customer or any third party (including, but not limited to, any taxation authority or an influencer) for any losses or penalties, pecuniary or otherwise, arising from Customer or an influencer entering inaccurate or false information, whether purposefully or not, or misrepresenting their situation in any manner. Customer’s use of the Payment Service is also subject to additional terms and conditions imposed by the vendors Traackr has engaged to power the Payment Service, including, without limitation, the Trolley Terms of Use at https://trolley.com/legal-agreements/. Customer’s use of the Payment Services is contingent upon compliance with those additional terms and conditions and Customer agree to the same.
1.5 Ownership by Traackr. Customer agrees that, as between Customer and Traackr, Traackr is the owner or licensee of all right, title and interest in and to all intellectual property rights in the Payment Service, documentation, and all other materials provided or made available to Customer in connection with the Payment Service, and any and all modifications, updates, and enhancements to the foregoing items.
2.1 Issuing Payment. Customer will not be able to use the Payment Service to remit payment in excess of the balance in Customer’s Payment Account on the specified payment date. Any balance in Customer’s Payment Account represents an unsecured claim against Traackr and is not insured by the Federal Deposit Insurance Corporation (FDIC). Traackr is not a bank and Customer will not receive any interest on the funds in Customer’s Payment Account. All deposits into Customer’s Payment Account must be in U.S. dollars and payments initiated from Customer’s Payment Account must be in U.S. dollars. To the extent that payments to influencers are converted into non-U.S. currencies other, transaction exchange rates will be determined at the time the transaction is confirmed by Traackr’s payment processor and there may be a reconciliation in Customer’s Payment Account after any such transaction.
2.2 Restrictions. Customer will use the Payment Service solely to remit and track payments to influencers, their loan out corporations or an influencer agency under contract with Customer and only in accordance with these Payment Terms. Customer will not use the Payment Service to transfer payment to any other individuals or entities, or for any other purpose, or otherwise transfer, resell, license or otherwise make the Payment Service available to third parties. Traackr will have no liability to Customer, influencer or any third party for any (i) failure of Customer to pay an influencer or any disputes arising out of timing or size of payments; (ii) Customer’s failure to adequately fund its Payment Service Account; (iii) misdirection of funds; or (iv) and disputes between Customer and influencer. Customer will not engage in any activity that violates the rights of others or that interferes with or disrupts the Payment Service.
2.3 Compliance with Laws. Customer agrees to comply with all applicable laws, rules, regulations and industry standards, including laws concerning privacy, banking, finance and anti-money laundering, in connection with the use of the Payment Service, and to comply with the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (“FTC Guides”). Customer is responsible for (i) ensuring all payments it makes using the Payment Services comply with all applicable laws, rules and regulations, and (ii) ensuring that any payments to influencers using the Payment Services are made for services rendered that in no way violate any applicable civil or criminal law, in either Customer’s jurisdiction or the jurisdiction of the influencer. Traackr and its vendors retain the absolute right to refuse to offer the Payment Services or facilitate or complete any payments to influencers where payments are to be made for services that Traackr or its vendors may consider high risk or in violation of the FTC Guides.
3.1 Payment Funding Order Form Amount. Customer will pay the Amount in accordance with the payment terms set forth in the Payment Funding Order Form. If no payment terms are provided in the Payment Funding Order Form, Amount for the Payment Service is due and payable in advance, net thirty (N30) days from the invoice date. All fees are non-refundable. Additional payment terms and any applicable tax obligations are set forth in the Terms.
3.2 Processing Fee. The Customer agrees to pay a processing fee equal to the greater of $5,000 or five (5%) percent of the applicable Payment Funding Order Form Amount that will be assessed on each applicable invoice. This fee will be assessed and payable in accordance with the terms and conditions and the applicable Payment Funding Order Form. The Customer acknowledges and agrees that this processing fee is an integral part of the overall transaction and is non-refundable.
Traackr utilizes certain vendors to provide the Payment Services and the parties acknowledge those vendors are Representatives who will receive Confidential Information of Customer in the course of the performance of their duties and in accordance with the Confidentiality restrictions set forth in the Terms.
5.1 Traackr will defend, indemnify and hold harmless Customer, its officers, directors, employees, vendors and consultants against any third-party claim, demand, suit, investigation, action or proceeding made or brought against Customer alleging that the Payment Services violate an applicable law, order, rule or regulation and a court of competent jurisdiction determines that the Payment Services do violate an applicable law, order, rule or regulation. However, Traackr’s obligations in this Section 5.1 will not apply to the extent such allegation and determination arises as a result of Customer breaching these Payment Terms.
5.2 Customer will defend, indemnify and hold harmless Traackr, its officers, directors, employees, vendors and consultants against any third-party claim, demand, suit, investigation, action or proceeding made or brought against Traackr (i) arising out of Customer’s breach or alleged of these Payment Terms or use of the Payment Service by Customer not in accordance with these Payment Terms; (ii) arising out of any dispute between Customer and influencer or any third party; or (iii) alleging that Customer’s use of the Payment Services violated applicable law, order, rule or regulation.
5.3 The indemnified party will: (a) provide prompt written notice of the applicable claim to indemnifying party; (b) provide the indemnifying party with sole control of the applicable defense and settlement; and (c) cooperate as requested by the indemnifying party, at the indemnifying party’s expense. The indemnifying party will not agree to any settlement unless such settlement includes a full release of the claim against the indemnified party.
Traackr will use commercially reasonable effort to ensure that the Payment Service is functional so that payment of money directed by Customer to an influencer will take place in a timely fashion, however Customer agrees that Traackr will not be liable for any losses or damages suffered by Customer as a result of delays in money being received by an influencer.
THE PAYMENT SERVICE AND ALL RELATED SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ANY PROMISES CONTAINED IN THESE PAYMENT TERMS ARE IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. TRAACKR DOES NOT REPRESENT THAT THE PAYMENT SERVICE WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, OR ERROR-FREE OR MEET CUSTOMER’S REQUIREMENTS, OR THAT DEFECTS OR ERRORS OR OMISSIONS WILL BE CORRECTED. CUSTOMER ACKNOWLEDGES THAT, AS A SAAS-BASED SERVICE, THE FUNCTIONALITY AND INTERFACES OF THE PAYMENT SERVICE MAY CHANGE OVER TIME, PROVIDED THAT SUCH CHANGE WILL NOT MATERIALLY DEGRADE THE PAYMENT SERVICE.
For the avoidance of doubt, the limitations of liability in the Terms apply to the Payment Service.
8.1 Term. These Payment Terms will commence upon signature by both parties and will continue for the term set forth in the applicable Order Form (“Term”).
8.2 Termination. Either party may terminate these Payment Terms in accordance with these Terms and Traackr will not be required to stop or attempt to stop any transaction authorized prior to the effective date of termination. . Traackr may also immediately terminate these Payment Terms if Traackr believes Customer has acted inconsistently with the Payment Terms, Terms or any vendor terms that govern Customer’s use of the Payment Services. In that event, Traackr reserves the right (but not the obligations) to cancel any scheduled or incomplete transactions without liability, including, without limitation, for Customer’s failure to timely make any payments
8.3 Suspension of Payment Service. Notwithstanding any provision herein to the contrary, Traackr may suspend the Payment Service in the event of any activity by Customer or any of its Users, if such activity has, or in Traackr’s reasonable assessment is likely to have, an adverse effect on the Payment Service or if Traackr believes Customer’s activities may be in violation of any applicable law, rule or regulation.
8.4 Withdrawal of Funds. Customer may withdraw funds from its Payment Account at any time (including at or after expiration or termination of the Term), subject to Traackr’s payment processor transaction fees (if any). However, Customer acknowledges and agrees that withdrawal of funds from its Payment Account can be suspended at any time due to legal or regulatory reasons. .
8.5 Survival. The provisions of this Section and the following Sections will survive any termination of these Payment Terms: Section 1.3 (Compliance) Section 2 (Payment Account), Section 3 (Fees), Section 4 (Confidentiality), Section 5 (Indemnification), Section 6 (Disclaimer), Section 7 (Limitation of Liability), and Section 9 (General).
9.1 Severability. If any provision of these Payment Terms is held to be unenforceable, such provision will be reformed to the extent necessary to make it enforceable, and such holding will not impair the enforceability of the remaining
9.2 No Third-Party Beneficiary. Nothing express or implied in these Payment Terms is intended to, or does, confer upon any person other than Traackr, Customer and their respective successors or assigns (to the extent permitted under these Payment Terms), any rights, remedies, obligations or liabilities whatsoever.
9.3 Change of Payment Terms. Traackr reserves the right, in its sole discretion, to change the Payment Terms. The most current version of the Payment Terms will supersede all previous versions.
9.4 Sub-Processors. Customer authorizes Traackr to engage any person as a Sub-Processor (defined below). Traackr’s initial Sub-Processors under these Payment Terms are listed in Exhibit B to these Payment Terms. Traackr will inform Customer of any additions or replacements of Sub-Processors, thereby giving Customer the opportunity to object to such additions or replacements. If Customer objects to such an addition or replacement and Traackr is not reasonably able to make adjustments to remove the objection, Customer will be entitled to terminate these Payment Terms by giving not less than thirty (30) days’ written notice to that effect to Traackr. Customer agrees to execute documents or take such actions as may be required to assist Traackr with data transfer compliance. “Sub-Processor” means any third party appointed by Traackr to process personal data under these Payment Terms.