Traackr, Inc. (“Traackr”) provides an online market-research subscription service to customers utilizing its influencer marketing services on behalf of itself or it’s customers (“Customers”). The services include all of the information and analysis made available to Customers (the “Traackr Service”). These Terms of Service (the “Terms”) are applicable to all Customers who have executed an Order Form that references these Terms of Service. These Terms will govern the use of the Traackr Service by Customer. In the event of any conflict between these Terms and the Order Form, the Order Form will control.
1.1 Service. Throughout the subscription term identified in the Order Form (the “Subscription Term”), Traackr will provide the Traackr Service in accordance with the Terms and the Service Level Agreement available at the following link. Customer acknowledges that the Traackr Service contains links to, and content obtained from, third party sites that are not operated or controlled by Traackr (“Third Party Sites”). Customer agrees that Traackr is not responsible for, and does not endorse, the content or practices of the Third Party Sites. Any links to or content from Third Party Sites in the Traackr Service are provided for Customer’s convenience only. Traackr reserves the right to update or remove any content available through the Traackr Service at any time for any reason. Traackr uses YouTube API services to access some of the data provided as part of the Traackr Service and, as such, by agreeing to these Terms, Customer also agrees to the YouTube's Terms of Service.
1.2 Support and Professional Services. Traackr will provide relationship support for the Traackr Service, including account management, bi-weekly check-in meetings by phone and certain account configuration and on-boarding assistance. Traackr may perform additional professional services subject to the terms and conditions of an additional Order Form and any request for additional professional services will become effective only when agreed between the parties in writing in such additional, mutually signed Order Form. Traackr will perform support and professional services with reasonable skill and care. Unless otherwise agreed by Traackr, all such services will be delivered remotely.
1.3 Customer Use. Subject to limitations set forth in the applicable Order Form, Customer’s use of the Traackr 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. Throughout each Subscription Term, Customer will use the Traackr Service in accordance with Traackr’s reasonable instructions and other documentation issued by, in conjunction with or on behalf of Traackr. Customer shall be solely responsible for (i) maintaining the confidentiality of the accounts and related passwords of its Users, and (ii) all use of such accounts and related passwords.
1.4 Publicity. Traackr will not (i) make any public announcement regarding the Services as they relate to Customer; or (ii) use Customer’s name or the names of its brands or subsidiaries, or trademarks in any form of publicity, except with Customer’s prior written approval.
1.5 Ownership by Traackr. Traackr and its suppliers retain all right, title and interest in and to all Intellectual Property Rights in the Traackr Service, documentation, and all other materials provided or made available to Customer in connection with the Services, and any and all modifications, updates, and enhancements to the foregoing items.
1.6 Ownership by Customer. Customer retains all rights, title and interest, including all Intellectual Property, in and to Customer Confidential Information and Customer Personal Data.
2.1 Restrictions. Customer will use the Traackr Service only for its own internal business purposes and solely in accordance with the terms of the Agreement. Customer will not transfer, resell, license or otherwise make the Traackr Service available to third parties, except as expressly described in these Terms. Without limiting its generality, the foregoing limitation applies to the information and analysis derived from use of the Traackr Service, as well as the Traackr Service itself. Customer will be solely responsible for all use of the Traackr Service under its account, including the acts and omissions of its Users. Customer may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Traackr Service. Customer will not engage in any activity that violates the rights of others or that interferes with or disrupts the Traackr Service.
2.2 Compliance with Laws. The parties agree to comply with all applicable laws, regulations and industry standards, including laws concerning advertising and marketing disclosure standards in connection with the provision and use of the Traackr Service.
3.1 Payment Terms. Customer will pay the subscription fees (“Subscription Fees”) and any other fees specified in each Order Form (collectively, the “Fees”) in accordance with the payment terms detailed in the Service Order. If no payment terms are provided in the Service Order, Fees for the Traackr Service are due and payable in advance, net thirty days from the invoice date. All Fees are non-refundable. All past due invoices not subject to a good faith dispute will be subject to a 2% fee per month. If Traackr pursues collection of any overdue Fees payable hereunder, Customer will reimburse all reasonable third party costs and fees incurred by Traackr in connection with those collection activities.
3.2 Expenses. If the parties agree to the performance of any Services on site, Customer will pay all of Traackr’s reasonable travel expenses. Traackr will obtain prior approval of such expenses and will provide standard supporting documentation with any reimbursement request.
3.3 Taxes. If Traackr has the legal obligation (under applicable law) to pay or collect taxes for which the Customer is responsible, including but not limited to, sales, use, transfer, privilege, excise, and all other taxes and duties that are levied or imposed by reason of performance of the Services by Traackr under this Agreement, the appropriate amount shall be invoiced to and paid by the Customer, unless Customer provides Traackr with a valid tax exemption certificate authorized by the appropriate taxing authority. All amounts payable to Traackr under this Agreement shall be without set- off and without deduction of any taxes, levies, imposts, charges, withholdings and/or duties of any nature which may be levied or imposed, including without limitation, value added tax, customs duty and withholding tax.
4.1 In connection with the Traackr Service, each party may disclose, or may learn of or have access to, certain confidential proprietary information owned by the other party (“Confidential Information”). Confidential Information means any data or information, oral or written, that relates to a party, including but not limited to its business activities, product plans, designs, costs, technology, software, business opportunities, personnel, customers, research, development, know-how, financial information, customer and supplier lists, forecasts, and projections. Confidential Information of Traackr includes the terms of the Service Order and these Terms. Notwithstanding the foregoing, Confidential Information is deemed not to include information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the receiving party; (iii) is rightfully communicated to the receiving party by third parties not bound by confidentiality obligations with respect thereto; (iv) is already in the receiving party's possession free of any confidentiality obligations with respect thereto; (v) is independently developed by the receiving party without use of any Confidential Information of the other party; or (vi) is approved in writing for release or disclosure by the disclosing party without restriction. The receiving party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving party. The receiving party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing party. Each party accepts responsibility for the actions of its Representatives and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. However, a party may disclose Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that such party gives reasonable prior notice to the other party to contest such order or requirement.
5.1 By Traackr.
(a) General. Traackr will defend, indemnify and hold Customer, its officers, directors, employees and contractors harmless against any third-party claim, demand, suit, investigation, action or proceeding (each, a “Claim”) made or brought against Customer alleging that the use of the Traackr Service as permitted hereunder infringes or misappropriates a third party intellectual property right. Traackr will pay all costs, reasonable legal fees and any settlement amounts agreed to by Traackr or damages finally awarded by a court of competent jurisdiction in connection with such Claim.
(b) Infringement Options. If the use of the Traackr Service by Customer has become, or in Traackr’s opinion is likely to become, the subject of any Claim, Traackr may at its option and expense: (i) procure for Customer the right to continue using the Traackr Service as set forth herein; (ii) modify the Traackr Service to make it non-infringing; or (iii) if the foregoing options are not reasonably practicable, terminate this Agreement and refund Customer any unused pre-paid Fees.
(c) Limitations. Traackr will have no liability or obligation with respect to any Claim to the extent caused by: (i) use of the Traackr Service by Customer that is not in accordance with this Agreement; (ii) the combination, operation or use of the Traackr Service with other applications, portions of applications, products or services where the Traackr Service would not by itself be infringing; or (iii) any designs, instructions or contributions of Customer. This Section states Traackr’s entire and exclusive obligation, and Customer’s exclusive remedy for any claim of any nature related to the subject matter described in this Section ((i) through (iii) collectively, the “Excluded Claims”).
5.2 By Customer. Customer will defend, indemnify and hold harmless Traackr, its officers, directors, employees and consultants against any Claim made or brought against Traackr (i) alleging that Customer Personal Data, or Customer’s use of the Services in breach of this Agreement, violates, infringes or misappropriation such third party’s intellectual property or privacy rights or violated applicable law, order, rule or regulation, or (ii) arising from an Excluded Claim.
5.3 Conditions. As a condition of the obligations set forth in this Section, a party entitled to indemnification (the “Indemnified Party”) will: (a) provide prompt written notice of the applicable Claim to the other party (the “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.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE TRAACKR SERVICE AND ALL RELATED SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ANY PROMISES CONTAINED IN THIS AGREEMENT 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 TRAACKR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT, AS A SAAS-BASED SERVICE, THE FUNCTIONALITY AND INTERFACES OF THE TRAACKR SERVICE MAY CHANGE OVER TIME, PROVIDED THAT SUCH CHANGE WILL NOT MATERIALLY DEGRADE THE TRAACKR SERVICE.
7.1. EXCEPT IN THE EVENT OF A PARTY’S INDEMNIFICATION OBLIGATIONS, A PARTY’S TOTAL CUMULATIVE LIABILITY FOR ANY AND ALL CLAIMS AND DAMAGES ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT AND THE SUBSCRIPTION, UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY, WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE TO TRAACKR BY CUSTOMER UNDER THE ORDER FORM CORRESPONDING TO THE SUBSCRIPTIONS OR SERVICES IN RESPECT OF WHICH THE LIABILITY AROSE AND LIMITED TO THE AMOUNT OF SUCH FEE CORRESPONDING TO THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE FIRST CLAIM GIVING RISE TO THE LIABILITY AROSE (THE “GENERAL CAP”).
7.2. NOTWITHSTANDING ANYTHING THE CONTRARY SET FORTH HEREIN, NEITHER PARTY WILL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR LOST PROFITS, OR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS AND COSTS IN CONNECTION WITH THE PERFORMANCE OF SERVICES OR THE PERFORMANCE OF ANY OBLIGATIONS UNDER THIS AGREEMENT EVEN IF IT IS AWARE OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES.
8.1 Term. This Agreement shall commence on the Effective Date and shall continue for the Subscription Term and any Renewed Subscription Term (as defined within the applicable Order Form).
8.2 Termination. Either party may terminate this Agreement immediately on giving notice in writing to the other party if the other party commits any material breach of any term of this Agreement and has not cured such breach within fifteen days of its receipt of written notice of the breach. In addition, either party may terminate this Agreement immediately on giving notice in writing to the other party if the other party files for bankruptcy or liquidation; becomes or is declared insolvent, or is the subject of any involuntary proceedings related to its liquidation, insolvency or the appointment of a receiver or similar officer for it, which proceedings are not dismissed within sixty days of filing; makes an assignment for the benefit of all or substantially all of its creditors; or enters into an agreement for the cancellation, extension, or readjustment of substantially all of its obligations.
8.3 Suspension of Traackr Service. Notwithstanding any provision herein to the contrary, Traackr may suspend the Traackr 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 Traackr Service.
8.4 Survival. The provisions of this Section and the following Sections will survive any termination of this Agreement: Section 2 (Additional Requirements), Section 3 (Payment), Section 4 (Confidentiality), Section 5 (Indemnification), Section 6 (Disclaimer), Section 7 (Limitation of Liability), Section 9 (General) and Section 10 (Personal Data).
9.1 Ownership. Traackr and its third party licensors will retain all ownership interest in and to the Traackr Service and its underlying systems and Customer’s rights are limited to those expressly stated in this Agreement. Notwithstanding any provision herein to the contrary, nothing in this Agreement is intended to limit Customer’s liability in the event of Customer’s violation of the intellectual property rights of Traackr and any claim with respect to such violation will not be deemed governed by this Agreement.
9.2 Force Majeure. Except with regard to payments due to Traackr, neither party will be liable under this Agreement for non-performance caused by events or conditions beyond that party's control if the party makes reasonable efforts to perform.
9.3 Notices. Marketing and business-related notices may be delivered by email. Any legal notices relating to this Agreement must be in writing and delivered by hand or by pre-paid first class mail or other next working day delivery service to each party at the address set forth in the applicable Service Order or such other address provided by the recipient. All notices will be sent by major commercial delivery courier service or mailed in a manner that requires a signature by the recipient.
9.5 Governing Law. This Agreement and any disputes hereunder will be governed by the laws of the State of New York, without regard to its conflict of law principles, and any litigation concerning this Agreement will be submitted to and resolved by a court of competent jurisdiction in New York City, New York.
9.6 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter herein and supersedes any and all prior communications and agreements whether written or oral concerning the subject matter hereof.
9.7 Modifications; Severability. Except as expressly provided herein, any modification to this Agreement must be made in writing and signed by an authorized representative of each party. If any provision of this Agreement 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 provisions.
9.8 Waiver. The failure by a party to exercise any right hereunder or to insist upon or enforce strict performance of any provision of this Agreement will not waive such party's right to exercise that or any other right in the future.
9.9 No Agency. Nothing herein will be construed to create a partnership, joint venture or any type of agency relationship between Traackr and Customer or any User.
9.10 Assignment. Neither party shall assign this Agreement without the prior written consent of the other party; provided that either party may assign this Agreement without the need for such prior written consent in the event of a sale of all or substantially all of such party’s assets, business or a majority of such party’s voting securities or in the event of any merger or other change of control with respect to such party.
9.11 No Third-Party Beneficiary. Nothing express or implied in this Agreement is intended to, or does, confer upon any person other than Traackr, Customer and their respective successors or assigns (to the extent permitted under this Agreement), any rights, remedies, obligations or liabilities whatsoever.
9.12 Change of Terms. Traackr reserves the right, in its sole discretion, to change the Terms. The most current version of the Terms will supersede all previous versions.
10.1 Data Processing. The terms of the Data Processing Addendum, shall apply to: (i) the processing (as defined in the GDPR) of personal data (as defined in the GDPR) that is regulated by the General Data Protection Regulation (EU) 2016/679 (the “GDPR”) by Traackr solely on behalf of Customer; and/or (ii) from and after the CCPA Effective Date (as defined in the DPA), the processing (as defined in the CCPA) of personal information (as defined in the CCPA) that is regulated by the California Consumer Privacy Act of 2018 (the “CCPA”) by Traackr solely on behalf of Customer.
10.2 Traackr Influencer Data. It is anticipated that, through the Traackr Service, Traackr will provide Customer with access to personal data relating to Influencers that is regulated by the GDPR (“Traackr Influencer Data”). Traackr Influencer Data does not include Customer Personal Data (as defined in the DPA) or any personal data that is not made available to Customer by Traackr through the Traackr Service. Customer’s access to Traackr Influencer Data is subject to Customer’s compliance with this Agreement. Each party acknowledges and agrees that each party is a separate and independent controller of such Traackr Influencer Data and that each such party shall have independent rights to determine the purposes and means of processing (as defined in the GDPR) of such Traackr Influencer Data. For the avoidance of doubt, each party acknowledges and agrees that each party is a separate and independent controller and that this Agreement does not create a co- or joint controller relationship (as provided in Article 26 of the GDPR) between the parties. Each party shall (i) comply with all the obligations imposed on a controller under all applicable laws relating to the Traackr Influencer Data, including without limitation the GDPR and (ii) provide commercially reasonable assistance to the other party, in complying with all of such other party’s obligations under all applicable laws relating to the Traackr Influencer Data, including without limitation the GDPR. Without limitation of the foregoing, Customer shall ensure that it has provided all legally required notices and obtained all consents required by applicable law, including the GDPR, to enable Customer’s lawful processing (as defined in the GDPR) of the Traackr Influencer Data. The parties hereby enter into the Standard Contractual Clauses for controllers as approved by the European Commission under Decision 2004/915/EC, which are incorporated herein in their entirety. As used in this Section 10.2, the following terms have the meanings given in the GDPR: “personal data” and “controller”.
Traackr welcomes your questions or comments regarding the Terms:
211 Sutter St., Suite 600
San Francisco, California 94108
Email Address: email@example.com
Last updated November 18th, 2019.