Terms of Service
Last Updated: June 22, 2023
Welcome to the trakrSuite family!
trakrSuite Inc.(“trakrSuite”) is a software company based in Sault Ste Marie, Ontario. Established in October 2020, trakrSuite's mission is to help today's workforce by modernizing their business practices using paper and pen. We create software solutions that provide simpler, more cost-effective counting and reporting methods. Our focus is to streamline workflow while keeping the needs of the end-users in mind and reducing the opportunity for human error.
trakrSuite Inc. offers the following apps; trakr Counting, trakr Safety, and trakr Warehouse (the “Apps”). Each App has an iOS version for handheld use and a companion browser-supported version. All the apps are available for download through Apple’s App Store and our Website, trakrsuite.com, and trakr Safety is available on Google’s Play Store.
These Terms of Service (these “Terms”) govern your use of the trakrSuite Inc. website, www.trakrsuite.com (the “Website”), the App and the Service, which are owned, run, operated and managed by trakrSuite Inc., an Ontario corporation (“trakrSuite,” “we,” “us,” or “our”). If you entered into a separately executed order form issued pursuant to these Terms (“Order Form”), that Order Form is incorporated by reference into these Terms unless explicitly stated otherwise. In the event of a conflict between these Terms and any terms and conditions contained within an incorporated Order Form, the Order Form governs.
THESE TERMS ARE A LEGALLY BINDING CONTRACT BETWEEN YOU AND TRAKERSUITE INC., SO PLEASE READ THESE TERMS CAREFULLY. BY ACCESSING OR USING THE WEBSITE OR OUR SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL POLICIES, GUIDELINES, AND ORDER FORMS INCORPORATED BY REFERENCE HEREIN. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS, YOU MAY NOT USE THE WEBSITE OR THE SERVICE. WE SUGGEST YOU PRINT A COPY OF THESE TERMS FOR YOUR RECORDS.
These Terms of Service apply to all site users, including, without limitation, browsers, vendors, customers, merchants, and/or contributors of Content.
Please read these Terms of Service carefully before accessing or using our Website or services.
If you are using the Website or the Service on behalf of any organization, you represent and warrant that you are authorized to accept these Terms on such organization’s behalf (in which case, “you” and “your” will refer to that organization), and that such organization agrees to indemnify you and us for violations of these Terms. Nothing in these Terms will be deemed to confer rights or benefits on any third party.
Any new features or tools added to the current Store shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our Website.1. Changes to these Terms
We reserve the right to change or modify these Terms and any policies or guidelines governing your use of the Website, the App and the Service at any time in our sole discretion. Any such changes or modifications will be effective immediately upon posting revisions on the Website or through the App. Your continued use of the Website, the App and the Service following the posting of such changes or modifications constitutes your acceptance thereof. Therefore, you should frequently review these Terms and all applicable policies or guidelines on the Website or through the App in order to understand the terms and conditions applicable to your use of the Website, the App and the Service. It is your responsibility to check this page periodically for changes. Your continued use of or access to the Website or apps following the posting of any changes constitutes acceptance of those changes.
To create an account, you must be 13 or older. If children between the ages of 13 and 18 wish to use the Website, App or Service, they must be registered by their parent or guardian. By registering, you represent and warrant that you are 13 or older.
4. Your Account
We require you to register and create an account in order to use the Service. To create an account, you must complete an online registration form designating a user ID and password.
You are solely responsible for all materials and information you upload, post or otherwise transmit via the Service. Only you may use your trakrSuite account, and you are responsible for your account. Please also refer to our Acceptable Use Policy mentioned in Section 8 below.
If you become aware of any unauthorized use or access of your account or have any account-related questions, please contact support@trakrSuite.com.
5. Account Terms
You represent and warrant that you;
- Are authorized to use the Website, the App and the Service;
- All of your registration, account and payment information is true, accurate and complete at all times;
- You will maintain the security of your password, if any; and
- You accept all responsibility for all activity that occurs under your user name.
Any breach or suspected breach of any of the above representations or warranties may result in immediate termination or suspension of your account without, if applicable, any refund.
You acknowledge and agree that you may only access and use the Website, the App, and the Service for lawful purposes and in accordance with any use or account restrictions defined in these Terms or any applicable Order Forms or imposed by the Website, the App, or the Service. If your account is subject to any seat restrictions, only one seat may be used per person, and you are responsible for purchasing a sufficient number of seats and access for your usage.
You can choose your email address(es) when registering for an account. If it is a personal email account, you solely will have the right to control it. If, however, your organization provided you with your account, you understand that such organization has rights to your account and may:
- Manage your account (including suspending or cancelling it);
- Reset your password;
- View your usage and profile data, including how and when your account was used;
- Manage the Content (as defined below) in your account.
If you are the primary contact and/or administrator of your organization’s relationship with trakrSuite, you acknowledge and agree that all users you authorize to access trakrSuite’s applications or websites on behalf of your organization have reviewed and will comply with all terms and conditions herein.6. Content and Feedback
You may post and/or submit reviews, comments, suggestions, ideas, information and/or other Content (“Content“) to the Website or on the App so long as such Content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam.” You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of a card or other Content. We reserve the right (but do not have the obligation) to remove or edit such Content. We do not regularly review posted Content. If you do post Content, and unless we indicate otherwise, you grant us a nonexclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such Content throughout the world in any media. You grant us and our sub-licensees the right to use the name that you submit in connection with such Content if we or they choose. You represent and warrant that;
- You own or otherwise, control all of the rights to the Content that you post and/or submit;
- The Content is accurate;
- The use of the Content you post and/or submit does not violate these Terms; and
- The Content will not cause injury to any person or entity.
We have the right, but not the obligation, to monitor and edit or remove any activity or Content. We take no responsibility and assume no liability for any Content posted by you or any third party.
If you or any of your employees or contractors sends or transmits any communications or materials to trakrSuite by mail, email, telephone, or otherwise, suggesting or recommending changes to the Website, the App, the Service or Documentation, including, without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), trakrSuite is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. You hereby assign on your behalf, and on behalf of your employees, contractors and/or agents, all rights, title, and interest in, and we are free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.7. Data Security
While we take reasonable measures to safeguard your Content, you are solely responsible for maintaining a backup of all of your Content outside of the Service that is readily available to you at all times in case of any loss, erasure or destruction of your Content stored on the Service. In particular, we are not responsible for any delays, problems or other issues that may arise during the process when you sync up the Services across various platforms, such as your smartphone, iPad and/or any laptop or desktop through which you access the Service. We do not control those devices and cannot ensure their safety or the security of your Content available through those devices, including, without limitation, any unauthorized access by anyone using those devices with or without your consent. You acknowledge and understand that we rely on third-party providers to provide us and users of the Service, including you, various security and encryption measures reasonably necessary to safeguard your Content. We have listed the measures that we currently take on the Website and/or App merely for illustration purposes, and we do not warrant their availability at all times or their efficacy. Our respective vendors are solely responsible for the security measures they provide, and your sole remedy for any security incident affecting your Content would be against them and not us.
You agree that you will not, nor will you encourage others or assist others to;
- Harm the Service or use the Service to harm, threaten or harass others;
- Build a similar or competitive service or Website using the information or other materials accessible only to those who create an account with trakrSuite;
- Damage, disable, overburden, or impair the Service (or any network connected to the Service);
- Resell or redistribute the Service or any part of it;
- Probe, scan or test the vulnerability of any system or network related to the Service;
- Breach or otherwise circumvent any security measures or authentication protocols, including any authorized third-party payment network protocols used by or through us;
- Use any authorized means or any automated process or Service (such as a bot, spider, or periodic caching of information stored on trakrSuite apps or websites) to modify, reroute, or gain access to or use of the Service or attempt to carry out any of these activities;
- Use the Service beyond the features or functionality allocations (including without limitation seat limits) and amounts or storage space limits provided in your specific Service or in violation of our fair use policy;
- Use the Service to violate any law or distribute malware, malicious, unlawful, indecent or pornographic Content;
- Distribute, post, or share information or Content you don’t have the right to or is illegal; or
- Violate the privacy or infringe the rights of others.
You also agree to comply at all times with all laws, regulations, government, court and regulatory orders, notifications, customs and trade usage as may apply to you and your use of the Service. In particular, you will not create or store any Content on trakrSuite apps or websites if such creation or storage would breach your legal or regulatory obligations and may expose us to any legal or regulatory action, investigation, penalty, fine or suspension. You understand and acknowledge that trakrSuite merely provides a service for individuals and businesses, and we do not control how or what Content or other information you specifically store on trakrSuite Apps, except for any overall account and storage limits that we may impose from time to time based on your account type.9. Copywrite
The Website and all Content and other materials on the Website, including, but not limited to, the “trakrSuite” effects, our logo and all designs, text, graphics, logos, icons, images, photographs, audio clips, digital downloads, data compilations, software and the selection and arrangement thereof (collectively, the “Materials“) are our property or that of our licensors or users and are protected by Canada and/or international copyright laws.10. Trademark
“trakrSuite,” “trakr Safety,” “trakr Counting,” and “trakr Warehouse” and the associated logos, and any other product or service names or slogans contained on the Website or the App (including, without limitation, App Store, Play Store) are trademarks of trakrSuite Inc. or its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of trakrSuite or the applicable trademark holder. You may not use any metatags or any other “hidden text” utilizing “trakrSuite” or any other name, trademark or product or service name of trakrSuite without our prior written permission. In addition, the look and feel of the Website and the App, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of trakrSuite and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Website or the App are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.11. Intellectual Property Ownership
You acknowledge that trakrSuite Inc. owns all rights, title, and interest, including all intellectual property rights, in and to the Website, the App and the Service [and, with respect to Third-Party Products, the applicable third-party licensors own all rights, title, and interest, including all intellectual property rights, in and to the Third-Party Products].
- Licence Grant. Subject to [and conditioned on your payment of Fees and compliance with all other/the] terms and conditions of this Agreement, we hereby grant you a non-exclusive, non-sublicensable, and non-transferable (except in compliance with Section 21, licence during the Term to (i) use the Website, the App and the Service solely for your internal business purposes [up to the number of Authorized Users outlined in your Subscription]; and (ii) use and make a reasonable number of copies of the Documentation \solely for your internal business purposes in connection with your use of the Website, the App and the Service. [The total number of Authorized Users will not exceed the number outlined in your Subscription, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the subscription fees payable hereunder.]
- Use Restrictions. You shall not use the Website, the App and the Service for any purposes beyond the scope of the Subscription Term granted in this Agreement. Without limiting the foregoing and except as otherwise expressly outlined in this Agreement, you shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Website, The App or the Service or the Documentation, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Website, The App or the Service or the Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Website, The App or the Service, in whole or in part; (iv) remove any proprietary notices from the Application or the Documentation; or (v) use the Website, The App or the Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other rights of any person, or that violates any applicable law.
- Reservation of Rights. We reserve all rights not expressly granted to you in this Agreement. Except for the limited rights and licences expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to the Website, The App or the Service.
- Limited License. We grant you a limited, non-sublicensable, non-exclusive and revocable license to access and make use of the Website, the App and the Service. Materials solely in accordance with, and subject to, these Terms (including any additional terms incorporated by reference) and any other of our policies and guidelines as posted on the Website, the App or the Store. Except as otherwise expressly permitted by these Terms, you may not: (i) collect, use, copy or distribute any portion of the Website, the App or the Materials; (ii) resell, publicly perform or publicly display any portion of the Website, the App or the Materials; (iii) modify or otherwise make any derivative uses of any portion of the Website, the App or the Materials; (iv) use any “deep-link,” “page-scrape,” “robot,” “spider” or other automatic devices, program, algorithm or methodology which perform similar functions to access, acquire, copy, or monitor any portion of the Website or the App; (v) use the Website or the App in a manner which results in the depletion of Website or the App infrastructural resources; (vi) download (other than page caching) any portion of the Website, the App the Materials or any information contained therein; or (vii) use the Website, the App or the Materials other than for their intended purposes.
13. Your Responsibilities
- General. You are responsible and liable for all uses of the Website, The App or the Service and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. [Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you. You shall take reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Website, the App and the Service and shall cause Authorized Users to comply with such provisions.]
- Third-Party Products. We may distribute certain Third-Party Products with the Subscription Service. For purposes of this Agreement, such Third-Party Products are subject to their own licence terms and the applicable flow-through provisions referred to in the Signed Quote. If you do not agree to abide by the applicable terms for such Third-Party Products, then you should not install or use such Third-Party Products. [The Website, The App or the Service also contains certain open-source software. You understand and acknowledge that such open-source software is not licensed to you pursuant to the provisions of this Agreement and that this Agreement may not be construed to grant any such right and/or licence.
We may host or provide links to products, Web pages, Web sites and other content of third parties (“Third Party Sites and Content”). The inclusion of any link or the hosting of any content is provided solely as a convenience to our users, including you, and does not imply affiliation, endorsement, approval, control or adoption by us of any Web site or any information or content contained therein. We make no claims or representations regarding, and accept no responsibility for, such Third Party Sites and Content, or for the quality, accuracy, nature, ownership or reliability thereof. Users, including you, may use these links and the Third Party Sites and Content contained therein at their own risk. When you leave the Website or the App, you should know that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data-gathering practices, of any website to which you navigate from the Website or App.15. Advertisements and Promotions, Third-Party Products and Services
We may run advertisements and promotions from third parties on the Website or the App, or we may otherwise provide information or links to third-party products or services on the Website or the App. Your business dealings or correspondence with, or participation in promotions of our advertisers and any terms, conditions, warranties or representations associated with such dealings or promotions are solely between you and such third party. We are not responsible or liable for any loss or damage of any sort incurred as a result of any such dealings or promotions or as the result of the presence of such third-party advertisers or third-party information on the Website or the App.16. Customer Support
We may provide help tours, storage samples, creative samples and other support (collectively, “Support”) to enhance your experience using the Website, the App and the Service. Unless explicitly provided otherwise in an applicable Order Form, you agree that such Support is provided solely as a matter of convenience and for illustration purposes only and does not guarantee or warrant any specific user experience and is not intended to demonstrate, promise or represent the presence or absence of any features in the Website, the App and the Service. You agree to customize the Service to suit and tailor it to your individual and/or organizational needs, and you will be solely responsible for all such use. You agree to rely on Support solely to explore the ways and manner in which you may use the Service and to understand its possible uses to satisfy your needs. If you use the App or the Service, or any portion of it, for purposes of storage, moving or travel, you will take adequate precautions to ensure that you retain all relevant data (including copies thereof) in your possession outside of and independent of the Website and the App, specifically to protect yourself against loss or erasure of data or its unavailability in the event the Website, the App or the Service is unreachable or non-functional.17. DISCLAIMER OF WARRANTIES
THE WEBSITE, THE APP, THE SERVICE, THE MATERIAL AND THE SUPPORT, AND ANY SERVICE INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE WEBSITE, THE APP OR THE STORE ARE PROVIDED TO YOU ON AN “AS IS” OR “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF ANY KIND, UNLESS OTHERWISE EXPRESSLY OUTLINED IN WRITING. WE DO NOT WARRANT THAT THE WEBSITE, THE APP, THE MATERIALS, THE SUPPORT OR ANY SERVICE INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE WEBSITE OR THE APP ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE AVAILABILITY, RELIABILITY OR SECURITY OF THE WEBSITE, THE APP OR THE SERVICE. UNLESS OTHERWISE EXPRESSLY SET FORTH IN WRITING, WE DISCLAIM ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE WEBSITE, THE APP, THE MATERIALS, THE SUPPORT AND ANY SERVICE INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE WEBSITE OR THE APP WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING: (A) ANY AND ALL WARRANTIES OF MERCHANTABILITY; (B) ANY AND ALL WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT WE KNEW, HAVE REASON TO KNOW, HAVE BEEN ADVISED, OR ARE OTHERWISE AWARE OF ANY SUCH PURPOSE); (C) ANY AND ALL WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE; (D) ALL WARRANTIES WITH RESPECT TO UPTIME AND DATA ACCURACY; (E) ALL WARRANTIES WITH RESPECT TO ANY AND ALL CONTENT AND RELATED DELIVERIES PROVIDED IN CONNECTION WITH THIS AGREEMENT; AND (F) THAT THE WEBSITE, THE APP, THE MATERIALS, THE SUPPORT AND ANY SERVICE INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE WEBSITE OR THE APP WILL OPERATE WITHOUT INTERRUPTION OR ERROR. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE RELIED ON NO WARRANTIES. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.
18. LIMITATION OF LIABILITY
IN NO EVENT WILL TRAKRSUITE BE LIABLE TO YOU OR ANY THIRD PARTY FOR LOSS OF REVENUE, LOSS OF PROFITS, OR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE WEBSITE, THE APP, THE MATERIALS, THE SUPPORT AND/OR ANY SERVICE INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE WEBSITE, THE APP OR THE SERVICE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, YOU AGREE THAT TRAKRSUITE INC. SHALL NOT BE LIABLE TO YOU FOR ANY DELAY IN PERFORMANCE, NOR SHALL TRAKRSUITE INC. LIABILITY INCLUDE INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES WHETHER OR NOT TRAKRSUITE INC. HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH CLAIM INCLUDING, WITHOUT LIMITATION, LOSS OF TIME, OR LOSS OF ANTICIPATED PROFITS OR REVENUE. IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL TRAKRSUITE INC.’S LIABILITY TO YOU AND/OR YOUR CUSTOMERS EXCEED THE PRICE TO BUYER OF THE SPECIFIC SERVICES PROVIDED BY TRAKRSUITE INC. GIVING RISE TO THE CLAIM OR CAUSE OF ACTION.19. Indemnification
You hereby agree to indemnify, defend and hold us and our investors, officers, directors, affiliates, subsidiaries, licensors, partners, licensees, consultants, contractors, agents and employees (collectively, the “Indemnified Parties“) harmless from and against penalties, claims, demands, losses, causes of action, suits, judgments, costs and expenses, including reasonable attorneys' and paralegals' fees arising from or in connection with (a) your use of the Website, the App, the Materials, the Support and/or the Service; (b) your negligent or willful misconduct; (c) any breach by you of these Terms (including, but not limited to, any breach of any of your representations or warranties); and/or (d) any Content you upload to, posted on, create on, transmit through or link from the Website, the App and the Service.20. Confidentiality
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and additional sensitive or proprietary information[, whether orally or in written, electronic, or other form or media/in written or electronic form or media], [ that is/ and whether or not] marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that at the time of disclosure is:
- In the public domain;
- Known to the receiving Party at the time of disclosure;
- Rightfully obtained by the receiving Party on a non-confidential basis from a third party;
- Independently developed by the receiving Party.
The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
You and we agree that:
- Confidential information will remain the property of its owner;
- We will treat each other’s confidential information with the same degree of care that we treat our confidential information but, in any event, with no less than a reasonable degree of care;
- We will use each other’s confidential information only in connection with these Terms and the Service;
- We will share confidential information only on a “need to know” basis with those who agree in writing to maintain its confidentiality similarly; and
- We will not share any confidential information with any third party except as allowed by these Terms or through the Service.
The initial Term of this Agreement begins on the Effective Date and unless terminated earlier pursuant to any of the Agreement's express provisions (the "[Initial]Term"). [This Agreement will automatically renew in accordance with your subscription term (monthly/yearly) as set out in your Agreement unless earlier terminated pursuant to this Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Term (each a "Renewal Term" and together with the Initial Term, the "Term").]22. Termination
Notwithstanding any terms to the contrary in these Terms, we reserve the right, without notice, without liability to you and in our sole discretion, to suspend or terminate your access to the Service at any time in our sole discretion, and/or any of your rights under these Terms (including, but not limited to, your right to use the Website, the App and the Service) and to block or prevent your access to and use of the Website, the App and the Service for any or no reason. We also reserve the right to deactivate, change and/or require you to change any trakrSuite user ID or password used in connection with the Service.
You understand that if your account is suspended or terminated, you may no longer have access to the Content that is stored with the Service.
Upon termination, you may request access to your Content, which we will make available, except in cases where we have terminated your account due to your violation of these Terms or our Acceptable Use Policy mentioned in Section 8 above. You must make such a request within 14 days following termination; otherwise, any Content you have stored with the Service may not be retrievable, and we will have no obligation to maintain Content stored in your account after this 14-day period.
In addition to any other express termination right outlined in this Agreement:
- We may terminate this Agreement, effective on written notice to you, if you [: (i) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after our delivery of written notice thereof, or (ii)] breaches any of its obligations under Section 2(b) or Section 5(c);
- Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party [materially] breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
- Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, the licence granted hereunder will also terminate, and without limiting your obligations under Section 20, you shall cease using the Service. trakrSuite shall terminate your access administratively. No expiration or termination will affect your obligation to pay all Fees that may have become due before such expiration or termination or entitle you to any refund.
- Survival. This Section 22 and Section 25 (Subscriptions; Fees; Automatic Renewals), Section 20 (Confidentiality), Section 11 (Intellectual Property Ownership), Section 19 (Indemnification), Section 18 (Limitations of Liability), and Section 28 (Miscellaneous) survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
We reserve the right to make necessary deployments of changes, updates or enhancements to the Service at any time. We also may add, remove, upgrade or downgrade any functionality or features or suspend or stop the Service altogether at any time.24. Electronic Communications
Notwithstanding any terms to the contrary in these Terms, trakrSuite may choose to electronically deliver all communications with you, which may include:
- Email to your email address indicated in your communications with trakrSuite or upon registration with or use of the Website, the App or the Support; or
- Posting messages that are displayed to you when you log in to or access the Website, the App or the Support.
trakrSuite’s electronic communications to you may transmit or convey information about action taken on your request, portions of your request that may be incomplete or require additional explanation, any notices with respect to modifications to these Terms, any notices required under applicable law and any other notices. You agree to do business electronically with trakrSuite, and to receive all current and future notices, disclosures, communications and information electronically, and that the aforementioned provided electronically satisfies any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received when the email is sent to you. If you don’t consent to receive notices (other than promotional materials) electronically, you must stop using the Service.25. Subscriptions; Fees; Automatic Renewals
trakrSuite provides the Service under both free and paid plans that may include different features and functionalities (“Subscriptions”).
trakrSuite offers free Subscriptions to individual users for the purposes of testing out the features and functionalities provided by trakrSuite. We believe that a free account will enable our users to realize the value of our apps. Please note that trakrSuite reserves the right to discontinue free Subscriptions at any time. If we do, and your account with us is affected, you may convert to a paid Subscription to continue using the Service or discontinue use of the Service under the free Subscription by the date provided.
trakrSuite offers premium, paid Subscriptions through the Website and App, pursuant to separately executed Order Forms. If you sign up for a paid Subscription, you agree to pay any and all applicable fees (“Fees”) presented to you at the time you enroll in a Subscription or as described in the Order Form, as applicable. If you sign up for a Subscription through the Store, please note that we and/or the Store reserve the right to change the quoted currency and price anytime. In addition to any Fees, you may still incur charges incidental to using the Service, such as currency exchange settlements, Internet access, data roaming, and other data transmission charges. All Fees and other amounts payable by you under this Agreement are exclusive of taxes and similar assessments. Subscriber is responsible for all goods and services, harmonized sale, sale, service, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial or territorial governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on your income. We may calculate the taxes you pay based on `the billing information you provide us at the time of Subscription.
Subscriptions will automatically renew at the end of the applicable period, either monthly or after the Term defined in the applicable Order Form unless you cancel or downgrade your account (as applicable) before the end of the applicable period in accordance with these Terms. If you do not wish your Subscription to renew automatically, you either (i) need to manage your Subscription through the Website, App, or Store, as applicable, or (ii) by contacting us at support@trakrSuite.com. You acknowledge and agree that deleting the App off of your device without following the process described in this subsection will not terminate the automatic renewal of your Subscription.
We reserve the right to change our Fees at any time in our sole discretion. We will notify you in advance, either through the Service, the App, the Store or to the email address you have most recently provided to us if we change the Fees applicable to your Subscription. If there is a specific length and price for your Subscription, the Fees will remain in force at that rate for that time unless otherwise specified in the Store or in an applicable Order Form. After the offer period ends, you will be assessed the modified Fees your use of the Service will be charged at the new price. If your Subscription is on a period basis (for example, monthly or annual) with no specific term, we will notify you of any change in Fees at least 30 days in advance unless the Store specifies a shorter period. If you don’t agree to these changes, you must cancel and stop using the Service by sending us an email (with cancellation confirmation from a trakrSuite representative or agent) no later than 30 days before the conclusion of your current payment term, whether monthly, annual, or otherwise.
For all Subscriptions for which you are charged Fees, you agree that you:
- Are required to have a trakrSuite account for each user;
- You will only receive the features and functionality that are included in the specific subscription plan that you have purchased;
- You are responsible for setting the configurations of your specific Service and;
- You are responsible for managing all of your devices and/or systems that you use to access your specific Service.
From time to time, in our sole discretion, we may offer trial or pilot Subscriptions or other access to some of the features and functionalities of the Service on a trial or pilot basis. We reserve the right to modify or alter the offerings (including any and all features and functionalities) of trial or pilot Subscriptions at our sole discretion. You may cancel at any time until the last day of your trial.
You may be required to provide a payment mechanism as a condition of your trial or pilot Subscription. After the trial period expires, your trial or pilot Subscription may convert automatically to a paid Subscription unless you cancel before the last day of your trial.27. Billing, Payments and Refunds
At this time, trakrSuite does not provide any payment gateway or handle any payment processes for any users of the App, including you, except that you may be asked to provide your payment details through the Website, although such details are accessed and processed at the back-end entirely by our third-party payment processor(s). The entire billing and payment process is handled either by the Store (if you download the App through the Store) or through a third-party payment processor (if you access the Service through the Website). You must comply with the payment terms and other instructions, as specified on the Store or such third-party processor, as well as any additional terms stated on the Website, the App or in these Terms. Without limiting the foregoing, and only by way of explanation, you must be authorized to use the payment method that you enter when you create a billing account. You authorize the Store or our third-party processor (as applicable) to charge you for the Service using your payment method and for any paid feature of the Service that you choose to sign up for or use while these Terms or any Store terms are in force.
We typically bill in advance on a recurring monthly or annual basis for Subscription. Also, the Store may charge you up to the amount you have approved and may choose to notify you in advance of the difference for recurring Subscriptions.
You must keep all information in your billing account current. You may access and modify your billing account information (including your payment method) or modify or cancel your Subscription through your account or through the Store or by contacting us at support@trakrSuite.com. If you choose to downgrade your Subscription, you may lose access to the features or functionalities of your previous Subscription for the remainder of the Subscription term. If you decide to cancel your Subscription, you may be required to delete your account, after which you will not be able to access the Service. Cancelling the Service will not result in any refunds whatsoever for the remainder of your subscribed Term. You will not be charged for a subsequent renewal if you have timely cancelled your Subscription at least 30 days in advance for monthly plans and annual plans unless provided otherwise in an applicable Order Form.
Payments for all premium features are due at the time you sign up for them unless we expressly agree otherwise in writing on a case-by-case basis. You retain the responsibility for settling all outstanding balances in a timely manner and maintaining updated billing information. If not complied with, at the end of 7 days (unless the Store specifies another period), your account will be deactivated, and all files will no longer be retrievable.
Except as specifically outlined in this Section, all Subscriptions are pre-paid for the period selected (monthly, annual or otherwise) and are non-refundable. This includes accounts that are renewed automatically or manually.
As stated above, we do not provide a payment gateway or store any of your payment details, including any credit card details. Your payment details are stored in the Store or with a third-party payment processor in conformance with the Store’s or such processor’s policies, as they may be updated from time to time. In addition to complying with these Terms and other of our applicable policies, you are required to comply with all our third-party provider policies from time to time. In the event of any conflict between our policies and those of any third-party provider, the most restrictive policies will bind you.
Except as prohibited by law, we or the Store may assess a late charge if you do not pay on time. You must pay these late charges when we or the Store bill you for them. The late charge will be the lesser of 1% of the unpaid amount each month or the maximum rate permitted by law unless the Store specifies a higher interest rate. We or the Store may use a third party to collect past-due amounts. You must pay for all reasonable costs we or the Store incur to collect any past due amounts, including reasonable attorneys’ fees and other legal fees and costs. We or the Store may suspend or cancel your Service if you fail to pay in full on time.28. Miscellaneous
- Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire Agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
- Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid)[, or email] (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section.
- [Force Majeure. In no event shall [TRAKRSUITE/eitherParty] be liable to [YOU/the other Party], or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement [, (except for any obligations to make payments)], if and to the extent such failure or delay is caused by any circumstances beyond [TRAKRSUITES/such Party's] reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, epidemics, pandemics[, including the 2019 novel coronavirus disease (COVID-19) pandemic], war, terrorism, invasion, riot or other civil unrest, strikes, labour stoppages or slowdowns or other industrial disturbances, or passage of a law or any action taken by a governmental or public authority, including imposing an embargo (each, a "Force Majeure Event").]
- Amendments and Modifications. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
- Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise outlined in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such Term or provision in any other jurisdiction.
- Governing Law. This Agreement and all exhibits and schedules attached hereto [and all matters arising out of or relating to this Agreement] are governed by and construed in accordance with the laws of the province of Ontario and the federal laws of Canada applicable therein [without giving effect to any choice or conflict of law provision or rule (whether of the province of Ontario of or any other jurisdiction)].
- Choice of Forum. Any legal suit, action, litigation or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all statements of work, exhibits, schedules, attachments and appendices attached to this Agreement, the services provided hereunder, and all contemplated transactions, shall be instituted in the courts of the Province of Ontario. Each Party irrevocably submits to the [non-]exclusive jurisdiction of such courts in any such suit, action, litigation or proceeding. Service of process, summons, notice or other documents by mail to such Party's address set forth herein shall be effective Service of process for any suit, action, litigation or other proceeding brought in any such court. Each Party agrees that a final judgment in any such suit, action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. [The Parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.]
- Assignment. You may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of trakrSuite[, which consent shall not be unreasonably withheld, conditioned, or delayed]. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
- Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 20 (Confidentiality) or, in the case of Licensee, Section 12(b) (Use Restrictions), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
- Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same Agreement.
If you believe there is a violation of these Terms and you would like to report it to us, please direct the information to firstname.lastname@example.org. Any reports of violations you submit to us, including your identity, may not be kept confidential. In response to your report, we may take actions in accordance with these Terms or other applicable agreements between us and the alleged violator of the Terms and may pursue other remedies available under all applicable local, state, federal or international laws, regulations, rules, orders and other requirements, now or hereafter in effect. However, we are under no obligation to respond to any reports we receive. Please note that a personal reply to reports you submit to us may not always be possible.