For purposes of this Agreement "You" shall mean either you as an individual or the business, government entity or entities on whose behalf You are accepting this Agreement and who is afforded all rights and bound by all terms under the Agreement. You represent that You are authorized to accept these terms and conditions. If You do not agree to be bound by this Agreement in its entirety, please do not attempt to use any of the Services accompanying this Agreement.
The "Service" means, collectively, Trackbridge's Library, SDK, the Client Portal, and any related documentation provided to You, all as defined below. Under this Agreement, Trackbridge may allow You to integrate the Service by implementing Trackbridge's proprietary libraries (the "Libraries") and software development kit with APIs (the "SDK") into Your mobile, desktop and/or server versions of software and sites ("Your Apps"), which will allow the Service to collect anonymous user data ("Your Data"). Trackbridge may also provide You with on-line access to a designated website where You can access reports generated by the Service (the "Client Portal"). The term "Service" also includes any modified versions or updates of thereof, to which You may be granted access under this Agreement.
"Your User" means an end user of Your Apps.
Trackbridge reserves the right to change or modify the Service or any of the terms and conditions contained in this Agreement, or any policy governing the Service, at any time, by posting the new Agreement; provided that Trackbridge remains in compliance with the restrictions and protections related to Your Data. You are responsible for regularly reviewing any updates to this Agreement. Any changes or modifications to this Agreement will become binding after Your continued use of the Service after Trackbridge has updated such terms.
Subject to the terms of this Agreement and during the Term (as defined below), Trackbridge hereby grants to You a limited, nonexclusive, worldwide, non-transferable, non-sublicenseable license to:
Restrictions on Use. Except as otherwise permitted in this Agreement, You agree not to: (a) sublicense, transfer, or otherwise provide access to the Service; (b) interfere in any manner with the Service; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for any software used or accessed by You that is part of the Service; (d) access or attempt to access any data that is controlled or provided by any other Trackbridge customer except as expressly permitted in writing in advance by Trackbridge and such other customer; (e) remove, modify or obscure any proprietary marks, notices or restrictions that appear on or in the Service; (f) in any way access, use, or copy any portion of the Service (including any logic, architecture or trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Service, or (g) use the Service, alone or in combination with each other or with third party services, to track or collect personally identifiable information.
Your Data. You hereby grant to Trackbridge a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license during the Term of this Agreement to use, reproduce, create derivative works of, distribute, modify, and aggregate, Your Data, for the purpose of delivering and improving Trackbridge products and services in general; provided that in no event will Trackbridge disclose or make available any Your Data in a manner that does or reasonably could permit the recipient of such information to determine that Your Data pertained to You in particular, or to specifically identify any end user.
Updates. During the Term, Trackbridge may provide any corrections, updates, upgrades and enhancements to the Service and Library that it makes generally available to its other clients, without additional cost to You.
Right of Removal. Trackbridge has the right, but not the obligation, to refuse or remove any data that is available via the Service that violates any of the terms of this Agreement, any applicable law, or any requirements of any third party service provider or Subcontractor.
The Service is currently provided to You, free of charge. Trackbridge reserves the right to charge a fee for use of the Service at any time, and will provide You prior notice and opportunity to leave the Service before Trackbridge applies any such fees.
You represent and warrant that: (a) Your Apps will not contain any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware; (b) Your Apps and Trackbridge's use of Your Data do not violate any agreement with Your Users, or any applicable law or regulation; and (c) it shall not include or incorporate into any Your App any software that contains, or is derived in any manner from any software that is distributed as free software, open source software or similar publicly available licensing or distribution models; and that requires as a condition of use, modification or distribution that such software or other software incorporated into, derived from or distributed with such software be disclosed or distributed in source code form, be licensed for the purpose of making derivative works, or be redistributable at no charge (e.g., GPL).
Except as expressly set forth herein, each party provides its services, materials and data "as is" without any warranty of any kind. Each party expressly disclaims all warranties, express, implied, or statutory, including any implied warranties of merchantability, fitness for a particular purpose, title, data accuracy, system integration, quiet enjoyment, and non-infringement of third party rights relating to any services, materials or data provided by a party under this Agreement. Each party acknowledges that it has relied on no representations or warranties other than any express representations and warranties set forth in this Agreement.
You will defend, indemnify and hold harmless Trackbridge from and against any claims, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) brought by third parties resulting from or relating to any allegation or claim that Your App or that the use of Your Data violate any applicable law or regulation, or infringe any third party intellectual property rights.
Except as it relates to either party's breach of the licenses granted or confidentiality obligations hereunder, in no event will either party be liable to the other for any lost profits, lost data, or equipment downtime nor for any indirect, incidental, special, or consequential damages of any kind even if it has been advised of the possibility of such damages. Except as it relates to Trackbridge's breach of the license provisions or the confidentiality obligations hereunder, in no event will Trackbridge's total cumulative liability under this Agreement, exceed US$100.00. Each party acknowledges and agrees that the foregoing limitations of liability are essential elements of the bargain and that in the absence of such limitations, the financial and other terms of this agreement would be substantially different.
This Agreement is effective until terminated by either party (the "Term"). Either party may terminate this Agreement upon notice to the other party. Without prejudice to any other rights that may be available to it, Trackbridge may terminate this Agreement if You breach any provision of this Agreement at any time. Upon termination, all licenses hereunder will terminate and You shall immediately cease all access to and use of the Service; provided that any Library incorporated into Your Apps that are already distributed is not required to be removed from those apps immediately. The license restrictions, license granted Trackbridge, limitations of liability, disclaimers, proprietary rights section, confidentiality and miscellaneous sections of this Agreement will survive.
The Service, Trackbridge's Confidential Information, Trackbridge's trademarks, and all worldwide intellectual property rights therein, are the exclusive property of Trackbridge and its suppliers and licensors. All rights in and to the Service not expressly granted to You in this Agreement are reserved by Trackbridge and its suppliers and licensors. As between the parties, You retain all ownership in and to Your Apps and Your Data subject to the license granted to Trackbridge hereunder. Trackbridge (and its suppliers and licensors) may perpetually use, share, commercialize and exploit any and all feedback related to the Service or this Agreement that is provided by You (excluding Your Data or Your Confidential Information included therein) without additional consideration to You.
Each party (the "Receiving Party") will maintain in confidence all Confidential Information (as defined below) disclosed to it by the other party (the "Disclosing Party"). The Receiving Party will not use or disclose Confidential Information of the Disclosing Party except as expressly authorized by this Agreement. The Receiving Party will protect the Disclosing Party's Confidential Information with the same standard of care that the Receiving Party uses to protect its own confidential information, but in no event less than a reasonable degree of care. "Confidential Information" means any confidential or proprietary information of either party (whether in graphic, written, oral, or electronic form), relating to the Disclosing Party. The obligations of confidentiality contained in this Section will not apply to any information to the extent that it can be established by the Receiving Party: (a) was available to the public prior to the Disclosing Party's first disclosure to Receiving Party; (b) is lawfully received by the Receiving Party from a third party without obligation of confidentiality; or (c) is independently developed by Receiving Party without access to or use of the Confidential Information of the Disclosing Party. Receiving Party may disclose Confidential Information of the Disclosing Party if legally required to do so by judicial or governmental order, provided that the Receiving Party will give the Disclosing Party prompt notice of such requirement prior to disclosure and cooperate with the Disclosing Party in minimizing or contesting such disclosure.
This Agreement shall be governed by the laws of Pennsylvania, without reference to conflicts of law principles and the parties hereby consent to the exclusive jurisdiction of the competent courts in Philadelphia, Pennsylvania. Each party waives all defenses of lack of personal jurisdiction and forum non conveniens. You may not assign this Agreement in whole or in part, by operation of law or otherwise, without the express written consent of Trackbridge. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the successors and assigns of the Parties. The parties hereunder are operating as independent contractors, and nothing in this Agreement shall be construed as creating a partnership, franchise, joint venture, employer-employee or agency relationship. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. The Parties intend that the provisions of this Agreement be enforced to the fullest extent permitted by applicable law, and if any provisions are deemed not enforceable, they shall be deemed modified to the extent necessary to make them enforceable. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements or communications. It shall not be modified except by a written agreement and signed in accordance with this Agreement by their respective duly authorized representatives. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.