Terms and Conditions

TERMS OF SERVICE AGREEMENT FOR TRAQSPERA

READ THIS SERVICE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE TRAQSPERA SERVICES (THE “SERVICES”). THIS AGREEMENT RELATES TO AND GOVERNS YOUR USE OF OUR SERVICES.
IN ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE AND BY USING THE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS IN THIS AGREEMENT, CLICK THE BOX TO INDICATE THAT YOU DO NOT ACCEPT THE AGREEMENT AND YOU ARE NOT PERMITTED TO USE THE SERVICES.

This Agreement is effective between You and TRAQSPERA as of the date the terms.

1. DEFINITIONS
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this TERMS OF SERVICE.
“Beta Services” means any Services that are not generally available to customers.
“Content” means information obtained by TRAQSPERA from TRAQSPERA’s content licensors or publicly available sources and provided to You as part of the Services.
“Documentation” means TRAQSPERA online user guides, documentation, and help and training materials, as updated from time to time.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, works, time bombs and Trojan horses.
“Non-TRAQSPERA Applications” means a Web-based or offline software application that is provided by any party other than TRAQSPERA and interoperates with a Service.
“Order Form” means mean an ordering document specifying the Services to be provided hereunder that is entered into between You and TRAQSPERA or any of TRAQSPERA’s Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Purchased Services” means Services that You or Your Affiliate purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
“Services” means the products and services that are ordered by You under a free trial or an Order Form and made available online by TRAQSPERA, including associated offline components, as described in the Documentation. “Services” exclude Content and Non-TRAQSPERA Applications.
“User” means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or TRAQSPERA at Your request) have supplied a user identification and password. User may include, for example, Your employees, consultants, contractors and agents and third parties with which You transact business.
“TRAQSPERA” means SE Management Group Inc.
“You” or “Your” means the company or other legal entity for which You are accepting this Agreement and Affiliates of that company or entity.
“Your Data” means electronic data and information submitted by or for You to the Purchased Services or collected and processed by or for You using the Purchased Services, excluding Content and Non-TRAQSPERA Applications.

2. FREE TRIAL
If You register on TRAQSPERA’s website for a free trial, TRAQSPERA will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s). Additional terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING THE FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM ENTERPRISE EDITION TO PROFESSIONAL EDITION); THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING SECTION 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
Please review the User Guide during the trial period so that You become familiar with the features and functions of the Service before You make Your purchase.

3. TRAQSPERA RESPONSIBILITIES

3.1.
Provision of Purchased Services. TRAQSPERA will (a) make the Services and Content available to You pursuant to this Agreement and the applicable Order Forms, (b) provide our standard support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which TRAQSPERA shall give at least 8 hours electronic notice and which TRAQSPERA shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Pacific Time), and (ii) any unavailability caused by circumstances beyond TRAQSPERA’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake , civil unrest, act of terror, strike or other labor problem (other than one involving TRAQSPERA employees), Internet service provider failure or delay, Non-TRAQSPERA Application, or denial of service attack.

3.2.
Protection of Your Data. TRAQSPERA will maintain administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosures of Your Data by Our personnel except (a) to provide the Purchased services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 8.3 (Compelled Disclosures) below, or (c) as You expressly permit in writing.

3.3.
Our Personnel. TRAQSPERA will be responsible for the performance of TRAQSPERA personnel (including TRAQSPERA employees and contractors) and their compliance with TRAQSPERA’s obligations under this Agreement, except as otherwise specified herein.

4. USE OF SERVICES AND CONTENT

4.1.
Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Services and Content are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.

4.2.
Usage Limits. Services and Content are subject to usage limits, including, for example, the quantities specified in Order Forms. Unless otherwise specified, (a) a quantity in an Order Form refers to Users limited by the Total Number of Employees, and the Service or Content may not be accessed by more that that number of Users based on the Total Number of Employees (b) A User’s password may not be shared with any other
individual and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service or Content. If You exceed a contractual usage limit, TRAQSPERA may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding TRAQSPERA’s efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services or Content promptly upon TRAQSPERA’s request, and/or pay any invoice for excess usage in accordance with Section 6.2 (Invoicing and Payment)

4.3.
Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access or use, (d) use Services and content only in accordance with the Documentation and applicable laws and government regulation, and (e) comply with terms of service of non-TRAQSPERA Applications with which You use Services or Content.

4.4.
Usage Restrictions. You will not (a) make any Service or Content available to, or use any Service or Content for the benefit of anyone other than You or Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or content in any service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy right, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in any way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function, or user interface thereof, (i) copy Content except as permitted herein or in a Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access any Service of Content in order to build a competitive produce or service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law).

4.5.
Removal of Content and Non-TRAQSPERA Applications. If TRAQSPERA is required by a licensor to remove content, or receive information that Content provided to You may violate applicable law or third-party rights, TRAQSPERA may so notify You and in such an event You will promptly remove such Content from Your Systems. If TRAQSPERA receives information that a Non-TRAQSPERA Application hosted on a Service by You may violate TRAQSPERA’s External-Facing Services or applicable law or third-party right, TRAQSPERA may so notify You and in such event You will promptly disable such Non-TRAQSPERA Application or modify the Non-TRAQSPERA Application to resolve the potential violation. If You do not take the required action in accordance with the above , We may disable the applicable Content, Service and/or Non-TRAQSPERA Application until the potential violation is resolved.

5. NON-TRAQSPERA PROVIDERS

5.1.
Acquisition of Non-TRAQSPERA Products and Services. TRAQSPERA or third parties may make available third-party products or services, including for example, Non-TRAQSPERA Applications or implementation another consulting services. Any acquisition by You of such non-TRAQSPERA products or services, and any exchange of data between You and any non-TRAQSPERA provider, is solely between You and the applicable non-TRAQSPERA provider. TRAQSPERA does not warrant or support non-TRAQSPERA Applications or other non-TRAQSPERA products or services, whether or not they are designated by TRAQSPERA as “certified” or otherwise, except as specified in an Order Form.

5.2.
Non-TRAQSPERA Applications and Your Data. If You install or enable a non-TRAQSPERA Application for use with a Service, You grant TRAQSPERA permission to allow the provider of that Non-TRAQSPERA Application to access Your Data as required for the interoperation of that Non-TRAQSPERA Application with the Service. TRAQSPERA is not responsible for any disclosure, modification, or deletion of Your Data resulting from access by a Non-TRAQSPERA Application.

5.3.
Integration with Non-TRAQSPERA Applications. The Services may contain features designed to interoperate with Non-TRAQSPERA Applications. to use such features, You may be required to obtain access to Non-TRAQSPERA Applications from their providers and may be required to grant TRAQSPERA access to Your account(s) on the Non-TRAQSPERA Applications. If the provider of a Non-TRAQSPERA Application ceases to make the Non-TRAQSPERA Application available for interoperation with the corresponding Service
features on reasonable terms, TRAQSPERA may cease providing those Service features without entitling You to any refund, credit or other compensation.

6. FEES AND PAYMENT FOR PURCHASED SERVICES

6.1.
Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.

6.2.
Invoicing and Payment. You will provide TRAQSPERA with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to TRAQSPERA. If You provide credit card information to TRAQSPERA, You authorize TRAQSPERA to charge such credit cared for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form Specifies that payment will be by a method other than a credit card, TRAQSPERA will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to TRAQSPERA and notifying TRAQSPERA of any changes to such information.

6.3.
Overdue Charges. If any invoiced amount is not received by TRAQSPERA by the due date, then without limiting TRAQSPERA’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) TRAQSPERA may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).

6.4.
Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for TRAQSPERA services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized TRAQSPERA to charge to Your credit card), TRAQSPERA may, without limited TRAQSPERA’s rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend TRAQSPERA’s services to You until such amounts are paid in full. TRAQSPERA will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section 13.2 (Manner of Giving Notice), before suspending services to You.

6.5.
Payment Disputes. We will not exercise TRAQSPERA’s rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonable and in good faith and are cooperating diligently to resolve the dispute.

6.6.
Taxes. TRAQSPERA’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If TRAQSPERA has the legal obligation to pay or collect Taxes for which You are responsible under this Section 6.6, TRAQSPERA will invoice You and You will pay that amount unless You provide TRAQSPERA with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, TRAQSPERA is solely responsible for taxes assessable against TRAQSPERA based on TRAQSPERA’s income, property and employees.

6.7.
Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependant on any oral or written public comments made by TRAQSPERA regarding the future functionality or features.

7. PROPRIETARY RIGHTS AND LICENSES

7.1.
Reservation of Rights. Subject to the limited rights expressly granted hereunder, TRAQSPERA and TRAQSPERA’s licensors reserve all or TRAQSPERA/their right, title and interest in and to the Services and Content, including all of TRAQSPERA/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

7.2.
License by TRAQSPERA to Use Content. TRAQSPERA grants to You a worldwide, limited-term license, under applicable intellectual property rights and licenses, to use Content acquired by You pursuant to Order Forms, subject to those Order Forms, this Agreement and the Documentation.

7.3.
License by You to Host Your Data and Applications. You grant TRAQSPERA and TRAQSPERA’s Affiliates a worldwide, limited-term license to host, copy, transmit and display Your Data and any Non-TRAQSPERA Applications and program code created by or for You using a Service, as necessary for TRAQSPERA to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, TRAQSPERA acquires no right, title or interest from You or Your licensors under this Agreement in or to Your Data or any Non-TRAQSPERA Application or program code.

7.4.
License by You to Use Facebook. You grant to TRAQSPERA and TRAQSPERA’s Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Services.

8. CONFIDENTIALITY

8.1.
Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your confidential information includes Your Data; TRAQSPERA’s Confidential Information includes the Services and Content; and Confidential Information of Each party includes the terms and conditions for this Agreement and All Order Forms (including pricing), as well as business and marketing plan, technology and technical information, product plans and designs , and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally knows to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owned to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

8.2.
Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information for the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreement with the Receiving party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 8.2.

8.3.
Compelled Disclosure. The Receiving Party may disclosure Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost. If the Disclosing Party wishes to contest the disclosure. If the Receiving party is compelled by law to disclosure the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

9. REPRESENTATION, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

9.1.
Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

9.2.
TRAQSPERA Warranties. TRAQSPERA warrants that (a) this Agreement, the Order Forms and the Documentation accurately describe the applicable administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) TRAQSPERA will not materially
decrease the overall security of the Purchased Services during a subscription term, (c) the Purchased Services will perform materially in accordance with the applicable Documentation, (d) subject to Section 5.3 (Integration with Non-TRAQSPERA Applications), TRAQSPERA will not materially decrease the functionality of the Purchased Services during a subscription term, and (e) the Purchased Services and Content will not introduce Malicious Code into Your systems. For any breach of an above warranty, Your exclusive remedies are those described in Sections 12.3 (Termination) and 12.4 (Refund or Payment Upon Termination).

9.3.
Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS”, EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

10. MUTUAL INDEMNIFICATION

10.1.
Indemnification by TRAQSPERA. TRAQSPERA will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of a Purchased Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You (a) promptly give TRAQSPERA written notice of the Claim Against You, (b) give TRAQSPERA sole control of the defense and settlement of the Claim Against You (except that TRAQSPERA may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give TRAQSPERA all reasonable assistance at TRAQSPERA’s expense. if TRAQSPERA receives information about an infringement or misappropriation claim related to a Service, TRAQSPERA may in TRAQSPERA’s discretion and at no cost to You (i) modify the Service to that it no longer infringes or misappropriates, without breaching TRAQSPERA’s warranties under Section 9.2 (Our Warranties), (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Non-TRAQSPERA Application or Your breach of this Agreement.

10.2.
Indemnification by You. You will defend TRAQSPERA against any claim, demand, suit or proceeding brought against TRAQSPERA by a third party alleging that Your Data, or Your use of any Service or Content in breach of the Agreement infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against TRAQSPERA”), and will indemnify TRAQSPERA from any damages, attorney fees and costs finally awarded against TRAQSPERA as a result of, or for any amount paid by TRAQSPERA under a court-approved settlement of, a Claim Against TRAQSPERA, provided TRAQSPERA (a) promptly gives You written notice of the Claim Against TRAQSPERA, (b) give You sole control of the defense and settlement of the Claim Against TRAQSPERA (except that You may not settle any Claim Against TRAQSPERA unless it unconditionally releases TRAQSPERA of all liability) and (c) give You all reasonable assistance, at Your expense.

10.3.
Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.

11. LIMITATION OF LIABILITY

11.1.
Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL
NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).

11.2.
Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WITHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

12. TERM AND TERMINATION

12.1.
Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.

12.2.
Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party give the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless TRAQSPERA has given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.

12.3.
Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii)if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

12.4.
Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 12.3 (Termination), TRAQSPERA will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is termination by TRAQSPERA in accordance with Section 12.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to TRAQSPERA for the period prior to the effective date of termination.

12.5.
Your Data Portability and Deletion. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, TRAQSPERA will make Your Data available to You for export or download as provided in the Documentation. After that 30-day period, TRAQSPERA will have no obligation to maintain or provide Your Data, and will thereafter delete or destroy all copies of Your Data in TRAQSPERA’s systems or otherwise in TRAQSPERA’s possessions or control as provided in the Documentation, unless legally prohibited.

12.6.
Surviving Provisions. The Sections titled “Fees and Payment for Purchase Services”, “Proprietary Rights and Licenses”, “Confidentiality”, “Disclaimers”, “Mutual Indemnification”, “Limitation of Liability”, “Refund or Payment Upon Termination”, “Portability and Deletion of Your Data”, “Who Are You Contracting With Notices, Governing Law and Jurisdiction”, and “General Provisions” will survive any termination or expiration of this Agreement.

13. WHO ARE YOU CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION

13.1.
Notice. Notices under this Agreement may be delivered by hand, by mail or by electronic transmission to the addresses specified below or to such other addresses as the parties may from time to time inform each other by notice hereunder. Notice will be deemed given: (a) in the case of hand delivery, upon written acknowledgment of receipt by an officer or other duly authorized employee, agent or representative of the receiving Party (b) in the case of mail, three days after sending; and (c) in the case of facsimile, upon receipt of transmission if received on a business day or otherwise at the commencement of the first business day following transmission
to: TRAQSPERA 4-1335 Dalhousie Drive Kamloops, BC V2C 5P6 Email: sales@traqspera.com Notices to You shall be sent to the address provided under an Order Form.

13.2.
Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending the confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services systems administrator designated by You.

13.3.
Agreement to Governing Law and Jurisdiction. This Agreement shall be constructed, interpreted and governed by the laws of the Province of British Columbia. The parties acknowledge and agree that the International Sale of Goods and the United Nations Convention on Contracts for the International Sale of Goods shall have no application on this Agreement. Each party hereby waives to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceedings arising out of or relating to this Agreement or the transactions contemplated hereby.

13.4.
No Agency. For the avoidance of doubt, TRAQSPERA is entering into this Agreement as principal and not as agent for any other TRAQSPERA company. Subject to any permitted Assignment under Section 14.4, the obligations owed by TRAQSPERA under this Agreement shall be owed to You and Solely by TRAQSPERA and the obligations owed by You under this Agreement shall be owed solely to TRAQSPERA.

14. GENERAL PROVISIONS

14.1.
Export Compliance. The Services, Content, other technology TRAQSPERA makes available and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that is it not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service or Content in a U.S.-embargoed country (currently Cuba, Iran, North Korea,, Sudan or Syria) or in violation of any U.S. Export law regulation

14.2.
Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value from any of TRAQSPERA employees or agent in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify TRAQSPERA.

14.3.
Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and TRAQSPERA regarding Your use of Services and Content and supersedes all prior and contemporaneous agreement, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency amount the following documents, the order of the precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.

14.4.
Assignment. Neither party may assign any of its right or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

14.5.
Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

14.6.
Third-Party Beneficiaries. TRAQSPERA’s Content licensors shall have the benefit of TRAQSPERA’s rights and protections hereunder with respect to the applicable Content. There are not other third-party beneficiaries under this Agreement.

14.7.
Waiver. No Failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

14.8.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.