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END-USER AGREEMENT

Updated: 16 May 2020

This End-User Agreement is made by and between you (“Client”) and Trakaff, a company duly incorporated and validly existing in accordance with the laws of  India.  (“Provider”), being the Owner’s licensee, which has the right to provide the clients access to the performance marketing software solution (“Software”) via the website https://www.trakaff.com/ (“Site”) and to collect fees from them for the use of the Software.

The owner of the Site and the Software is Trakaff.,This End-User Agreement together with Terms and Conditions of Use, Privacy Policy and other Site Rules (as defined in the Terms and Conditions of Use), the Data Processing Addendum and any order forms, exhibits, appendices, addenda or schedules attached to the End-User Agreement as well as invoices to it constitutes the entire agreement between the Client and Provider (“Agreement”) with respect to the use of the Site, the Software and the Content (as defined in the Terms and Conditions of Use) and sets forth the terms and conditions under which the Client may access and use the Site, the Software and the Content.

Provider may modify the End-User Agreement, Terms and Conditions of Use, Privacy Policy and/or other operating rules, policies and/or procedures from time to time, in its sole and absolute discretion. Provider will notify the Client of any changes by posting the updated terms on the Site and will revise the “Updated” date above. Any changes shall be incorporated by reference herein. It is Client’s responsibility to review the terms frequently and to remain informed of any changes to them. Provider may also provide the Client with additional forms of notice of modifications and/or updates as appropriate under the circumstances including, but not limited to, sending the Client an email informing of the changes and/or by prominently posting notice of the changes on the Site. Client’s continued use of the Software after such modifications have been published shall constitute Client’s consent to the modified terms. If the Client does not agree with the changes and/or modifications, the Client shall not use the Software after the effective date of the changes. The then-current versions of the terms will supersede all earlier versions.

In the event of any conflict between the documents that make up the Agreement, the following order of precedence will apply (in descending order): (1) the invoice, (2) the Order Form to the End-User Agreement, (3) the End-User Agreement, (4) the Terms and Conditions of Use, (5) Privacy Policy. Notwithstanding anything to the contrary herein, if there is a conflict between the End-User Agreement, Terms and Conditions of Use, Privacy Policy and the Data Processing Addendum, the terms of the Data Processing Addendum shall control.

All definitions specified in Terms and Conditions of Use have the same meanings in this End-User Agreement.

1. DESCRIPTION OF SOFTWARE; GRANT OF LIMITED RIGHTS

1.1. Provider offers/grants the right to access and use the Software through the Site. The amount of payment for the right to access and use the Software depends and is based on the volume of features, tools and capacities sets ordered and used by the Client.

1.2. Provider grants the Client a worldwide, non-exclusive, non-transferable, revocable and limited right (“End-User License”) to access the Site and use the Software through the Site for a fee, as indicated in the Order Form to this End-User Agreement, in accordance with the terms and conditions of this End-User Agreement, during the Term of the End-User Agreement (as defined in clause 4.2 below).

1.3. End-User License grants the Client these limited rights: (i) to use the Software by logging to it via the Site or tailored gateway; (ii) to upload and download the data to and from the Software; (iii) to customize the built-in features and tools of the Software in order to retrieve, gather, process and analyze data; (iv) to review and analyze data processing results via Software or by downloading the reports and data.

1.4. The End-User License, if not terminated earlier under the terms of this End-User Agreement, is granted for the Term of the End-User Agreement (as defined in clause 4.2 below).

2. PRIVACY AND PERSONAL DATA

2.1. Client’s personal/corporate data shall be collected and processed in accordance with the provisions of law and in accordance with the Privacy Policy and Terms and Conditions of Use.

2.2. Provider has a right to transfer Client’s contact/identification information and details to any third party in order to recover debts.

3. ACCOUNT

3.1. The Client hereby agrees to assume sole responsibility for maintaining the confidentiality of Client’s account and login details. As such, the Client hereby agrees to assume sole responsibility for all activities that occur under the Client’s account or via use of Client’s password. If the Client becomes aware of any unauthorized use of its password or of its account, the Client agrees to notify Provider immediately. The Client is solely responsible for utilizing industry recognized software to detect and disinfect viruses, spyware, malware, and other harmful or otherwise undesirable components from any downloads that may jeopardize the security of the Client’s account or otherwise cause harm. The Client agrees to follow other requirements related to its account as provided in the Terms and Conditions of Use.

4. TERM AND TERMINATION

4.1. Effective date.

The Client is considered to start using the Software as of the date that the Client’s free trial is expired and the Client continues/agrees to access the Software subject to terms and conditions of this End-User Agreement (“Account Start Date”). This End-User Agreement is effective as of the Account Start Date subject to the signing of the Order Form to this End-User Agreement by the Client (“Effective Date”) and until expiration of the Term of the End-User Agreement (as defined in clause 4.2 of the End-User Agreement).

Prior to the Effective Date, the Client’s account and use of the Site shall be controlled only by the Terms and Conditions of Use and Privacy Policy found on the Site until the Effective Date hereof, and upon such Effective Date this End-User Agreement shall apply together with Terms and Conditions of Use and Privacy Policy. In case of conflict between this End-User Agreement and Terms and Conditions of Use, this End-User Agreement shall prevail.

4.2. Term.

For the purposes of this End-User Agreement, the Term of the End-User Agreement means an original term and all renewal terms during which the Client is granted the right to access and use the Software through the Site under this End-User Agreement and pays Service Fees. Upon expiration of the original term of this End-User Agreement, specified in the Order Form to this End-User Agreement, or any renewal term, the End-User Agreement will automatically renew for a period of equal duration (renewal term), unless the Client provides a written notice of its intent not to renew at least 30 (thirty) days prior to the end of the original term or any renewal term.

4.3. Termination.

The Client can terminate the End-User Agreement by giving to Provider a written notice of the intent to terminate this End-User Agreement at least thirty (30) days prior to the cancelation date.

Provider may terminate this End-User Agreement and the revocable End-User License at any time without cause (at will) upon prior written notice to the Client. Provider may terminate this End-User Agreement and the revocable End-User License with immediate effect and without prior notice in case the Client makes any breach of this End-User Agreement, Data Processing Addendum and/or Terms and Conditions of Use.
On termination, the Client loses the right to access or use the Software. The following shall survive termination: (i) Provider’s rights to use and disclose the Client’s feedback regarding the use of the Software through the Site and Provider’s team work; (ii) any amounts owed by either Party prior to termination remain owed after termination.

5. PRICING AND PAYMENT

5.1. In consideration for use of the Software, the Client agrees to pay the Service Fees, which includes License fees, fees for overcap conversions and impressions and fees for feature add-ons, if any, as indicated in the Order Form to this End-User Agreement. Fees for feature add-ons, if any, and License Fees shall be paid in advance. Fees for overcap conversions and impressions, if any, shall be paid in arrears.

The Client acknowledges and agrees that Provider may once a year, at its sole discretion, change the Service Fees by giving the Client at least 45 days’ prior notice. 

Unless otherwise stated, all fees are quoted in USD.

5.2. Duration of the billing period (invoicing frequency) and the payment time limit shall be specified by the Parties in the Order Form to this End-User Agreement.The first billing period begins on the Account Start Date and shall recur as specified in the Order Form to the End-User Agreement.

5.3. All rates quoted in the Order Form are exclusive of any sale or other applicable taxes. The Client is responsible for paying all applicable sales, use, transfer or other taxes, including withholding tax, and all duties including correspondent bank fees. The Client shall not offset or deduct any amounts from the invoice, and is liable to make full payment for each invoice within invoice due date (payment term) indicated.
Any deducted amounts (including but not limited to: bank fees, taxes and other charges) must be paid extra in accordance with the prevailing law, if other has not been approved prior by Provider in writing.

VAT is not included into the Service Fees therefore the Client is responsible for paying VAT if provided within an invoice.
5.4. The access to the Software is subject to the payment of the Service Fees. If the Client does not pay whole amount of invoice in time indicated, Provider is entitled to suspend access to Software and/or apply 6 percent annual interest.
5.5. If the Client decides to change volume of used features, tools and capacities sets of the Software, the Client acknowledges and agrees that downgrading changes to be applied starting from the beginning of the renewal term provided that the Provider has been notified of these changes not less than 30 days before the end of the original or renewal term. Upgrading changes shall be applied starting anytime provided that Provider has been notified of these changes not less than 30 days before these changes come into effect.

5.6. The Client is required to provide Provider with a valid credit card details and authorization to bill for the Client’s use of the Software. If the Client chooses another payment method for the invoice (bank wire transfer or paypal), its payment should be made until the date provided in the invoice.

5.7. By purchasing paid access and usage rights of the Software, the Client (if it is an individual user, not authorized person of a company (user)) expressly understands and agrees to the Provider’s refund policy: within fourteen (14) days of Client’s payment date as shown on Client’s payment bill, the Client can request a full refund by contacting Provider. No refund of any kind will be permitted after fourteen (14) days of the Client’s payment date. In case of termination before the completion of the billing period, any money paid for the Software are non-refundable. In order to avoid misunderstandings, the right of refund of Service Fees belongs just to the user who is individual person (consumer) and accesses Software for personal not business reasons.

5.8. If the Client decides to cancel the End-User Agreement prior to the end of the original term or any renewal term, the Client acknowledges and agrees:

1) that, in case of termination before the completion of the billing period, any Service Fees paid for the Software are non-refundable; and/or

2) to pay the Service Fees for the whole original or renewal term, whichever is applicable.

6. USE OF SOFTWARE

6.1. In addition to the Client’s obligations and responsibilities provided in the End-User Agreement and the Terms and Conditions of Use, the Client: (i) shall not access (or attempt to access) the Site and/or Software by any means other than through the interface that is provided by the Site or Owner/Provider; (ii) shall not gain or attempt to gain unauthorized access to Owner’s/Provider’s computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Software (or the servers and networks in connection with the Site); (iii) shall not reproduce, duplicate, copy, sell, trade or resell the Site and/or Software (including platform or software), or any portion thereof, to any individual or entity for any purpose whatsoever, as well the Client shall not decompile or reverse engineer any part of the Site and/or the Software, these actions are specifically prohibited. Also, the Client shall use the Site and the Software for the lawful uses only. Violation of any provision of this section shall be considered a material breach of this End-User Agreement.

6.2. Owner shall have the right to make modifications and updates as provided in the Terms and Conditions of Use.

6.3. The Client will have access to support as provided in the Terms and Conditions of Use.

6.4. The operation and maintenance of the Site and the Software in terms of significant changes and major improvements shall be provided solely by the Owner. Provider has no right to significantly modify the Site and the Software and amend their core features as well as no right to use the Software. Provider does not provide any services to the Client, except for support services, which do not involve changes to object code, source code of the Site and/or the Software or any portion of the foregoing.

7. DISCLAIMERS AND LIMITATIONS OF LIABILITY

7.1. IN ADDITION AND WITHOUT LIMITATIONS TO WHAT IS PROVIDED IN TERMS AND CONDITIONS OF USE, TO THE FULLEST EXTENT OF ALL APPLICABLE LAWS, THE SITE (INCLUDING ALL INFORMATION THEREON) AND THE SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS AND OWNER AND PROVIDER DISCLAIM: (I) ALL REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, REGARDING THE SITE OR INFORMATION THEREON, THE SOFTWARE OR ITS PRODUCTS, OR OTHERWISE RELATING TO THIS END-USER AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE; AND (II) ANY WARRANTY THAT THE SOFTWARE OR INFORMATION WILL OPERATE UNINTERRUPTED, ERROR-FREE, OR THAT THE SERVERS ARE FREE OF VIRUSES, SPYWARE, MALWARE OR OTHER HARMFUL COMPONENTS. FURTHER, OWNER AND PROVIDER MAKE NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE SOFTWARE, THE SITE AND/OR ASSOCIATED PRODUCTS. NO ADVICE OR INFORMATION, WHETHER VERBAL OR WRITTEN, GIVEN BY OWNER OR PROVIDER THROUGH THE SOFTWARE, THE SITE AND/OR OTHERWISE SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN HEREIN.

8. LIMITATION OF LIABILITY

8.1. IN NO EVENT SHALL OWNER AND/OR PROVIDER, THEIR OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, LICENSORS, AND/OR SUPPLIERS BE LIABLE TO THE CLIENT AND/OR ANYONE ELSE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL AND/OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING THOSE RESULTING FROM LOSS OF PROFITS, USE AND/OR DATA, BUSINESS INTERRUPTION, THE USE OR INABILITY TO USE THE SITE, THE SOFTWARE AND THE CONTENT, WHETHER OR NOT FORESEEABLE, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT OWNER AND/OR PROVIDER HAVE/HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

8.2. LIMITATION ON AMOUNT OF LIABILITY. THE MAXIMUM AGGREGATE LIABILITY OF PROVIDER (INCLUDING OWNER) TO THE CLIENT FOR ALL DIRECT DAMAGES ARISING FROM THE SITE, THE SOFTWARE AND THE CONTENT IS LIMITED TO THE AMOUNT PAID BY THE CLIENT TO PROVIDER HEREUNDER DURING SIX MONTHS PRECEDING THE DATE OF THE CLAIM.

9. OWNERSHIP

9.1. The Software and all content and materials on the Site, including, without limitation, the logos, and all designs, text, graphics, pictures, reviews, information, data, software, sound files, other files and the selection and arrangement thereof are the proprietary property of Owner or its licensors and are protected by laws of the location of the Owner and international copyright laws. Any unauthorized use, copying, redistribution and/or publication by the Client of any part of the Software and/or the Site are strictly prohibited.

9.2. The Client does not acquire any ownership rights to the Software, the Site or any material made available by and through the Site. However, all information and data uploaded by the Client or retrieved, processed by the Software on the Client’s behalf shall remain the Client’s property. The Client shall have a right to download, retrieve, copy, duplicate any of this data as stored on the Site or in/by the Software during the Term of the End-User Agreement. This information shall not be disclosed to third parties.

9.3. Any use of the materials, except for the Client’s data/information, contained on the Software and/or the Site without the prior written permission of Owner or Provider, is strictly prohibited and will immediately terminate the End-User License granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes.

10. GOVERNING LAW AND DISPUTE RESOLUTION

10.1. This End-User Agreement is governed by the laws of the State of California, U.S.A., without respect to its conflict of laws principles. The courts of the State of California, U.S.A. shall have exclusive jurisdiction to hear any disputes arising out of or relating to this End-User Agreement. The Parties shall solve all disputes within 30 (thirty) days by negotiation, if dispute will not be solved during mentioned term, the case shall be submitted to the court.

 11. FORCE MAJEURE

11.1. The Parties agree that neither Party will be liable, or be considered to be in breach of the End-User Agreement, on account of either Party’s delay or failure to perform as required under the terms of the End-User Agreement as a result of any causes or conditions that are beyond either Party’s reasonable control and such Party is unable to overcome through the exercise of commercially reasonable diligence (“Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, breakdown of or lack of access to IT systems, or of damage to the data maintained in these systems as a result of any of the reasons listed herein, a power supply failure or failure in Owner’s and/or Provider’s systems, legislative or administrative interventions, natural disasters, storm or other natural occurrences, national emergencies, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected Party will give the other Party notice and will use commercially reasonable efforts to minimize the impact of any such event.

 12. MISCELLANEOUS

12.1. If any provision of this End-User Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions, which shall remain in full force and effect.

12.2. No waiver of any provision of this End-User Agreement shall be deemed a further or continuing waiver of such term or any other term.

12.3. All provisions of this End-User Agreement which by their nature shall be intended to continue shall survive termination, including terms relating to exclusions and limitations of Owner’s and Provider’s liability, intellectual property restrictions and reimbursement of damages.

12.4. Owner and Provider shall be entitled to sub-contract any third party for the purposes of operation and/or maintenance of the Site/the Software under this End-User Agreement (Owner – in terms of significant changes and major improvements, Provider – only to the extent not involving significant modifications and/or amendments to core features).

Provider is entitled to sub-contract third parties for provisions of support services, which do not involve changes to object code, source code of the Site and/or the Software or any portion of the foregoing, under this End-User Agreement.

12.5. Parties are independent contractors, and nothing in the End-User Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the Parties. The Client has no authority to make or accept any offers or representations on behalf of Owner or Provider. The Client is prohibited from making any statements on behalf of Owner or Provider.

12.6. Provider shall be entitled, without the Client’s consent, to assign this End-User Agreement to any third party, whether in whole or in part. In such cases, this End-User Agreement shall continue in force, without changes, with the new person entering into Provider’s place as the contracting party. The Client shall not be entitled to assign or in any other way transfer this End-User Agreement to a third party, whether in whole or in part, without Provider’s prior written consent.