Last Revised: June 28, 2017
Thank you for choosing to use our services.
Below we have listed important legal terms that apply to anyone who uses our services. These terms are necessary in order to protect both you and us, and to make our services possible and more enjoyable for everyone.
1. CONTRACT STRUCTURE & ORDER-OF-PRECEDENCE
This Totaltrac Master Subscription Agreement (“Agreement”) is entered into between Totaltrac, LCC. (“Totaltrac”) and the customer (“Customer”) identified on the first order document signed by both Parties referencing this Agreement (“Order Form”), effective as of the effective date identified in that Order Form (“Effective Date”). Capitalized terms in this Agreement are defined in Section 17 (Definitions) and elsewhere in this Agreement. This Agreement and all Order Forms govern Customer’s access to and use of Totaltrac’s Service, and SOW govern any Professional Services Totaltrac provides to Customer. “Customer” and “Totaltrac” also include such Party’s respective Affiliates, and Customer and Totaltrac may be referred to in this Agreement individually as a “Party” and collectively as the “Parties.” In the event of any conflicts between this Agreement, any Order Form, and/or any SOW, the following order-of-precedence applies: SOW take precedence and prevail over Order Forms solely with respect to the subject matter of SOW; and Order Forms and SOW take precedence and prevail over this Agreement solely with respect to their respective subject matter.
THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN TOTALTRAC AND CUSTOMER. CUSTOMER IS RESPONSIBLE FOR CAREFULLY READING ALL TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE SIGNING AN ORDER FORM, CLICKING “ACCEPT,” OR ACCESSING OR USING ANY TOTALTRAC SERVICE. BY SIGNING AN ORDER FORM, OR ACCESSING OR USING ANY TOTALTRAC SERVICE, CUSTOMER CONFIRMS THAT CUSTOMER HAS ACCESSED ONLINE AND/OR BEEN PROVIDED A COPY OF THIS AGREEMENT, AND HAS READ AND ACCEPTS THIS AGREEMENT IN ITS ENTIRETY. NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS CUSTOMER MAY REFERENCE OR PROVIDE, TOTALTRAC’S OFFER OR ACCEPTANCE TO ENTER INTO AN AGREEMENT WITH CUSTOMER WITH RESPECT TO ANY TOTALTRAC SERVICE IS EXPRESSLY LIMITED TO THE TERMS OF THIS AGREEMENT AND CONDITIONED ON CUSTOMER’S CONSENT TO THIS AGREEMENT.
2. OWNERSHIP OF SERVICE & CUSTOMER DATA
2.1 Ownership of the Service. The Service is the property of Totaltrac, and is protected by copyright, trade secret and other intellectual property laws. Totaltrac and its licensors retain any and all rights, title and interest in and to the Service (including, without limitation, all Intellectual Property Rights), including all copies, modifications, extensions and derivative works thereof. Customer’s right to use the Service is limited to the rights expressly granted in this Agreement and the applicable Order Form(s). All rights not expressly granted to Customer are reserved and retained by Totaltrac and its licensors.
2.2 Ownership of Customer Data. As between Customer and Totaltrac, (a) all Customer Data is the property of Customer, and (b) Customer retains any and all rights, title and interest in and to the Customer Data, including all copies, modifications, extensions and derivative works thereof.
3. GRANT OF RIGHTS
Subject to the terms and conditions of this Agreement, Totaltrac hereby grants to Customer the non-exclusive, non-transferable (except as specified in Section 16.2 (Assignment)), worldwide, royalty-free right to access and use the Service during the Service Term in accordance with the terms of this Agreement and all applicable Order Form(s) and SOW (e.g., any transaction volume terms and limitations to particular Customer legal entities, business units, projects, brands, products and/or services set forth therein). Except to the extent otherwise indicated in the applicable Order Form, Customer’s rights to access and use the Service are limited to a single Production Tenant.
4. CUSTOMER RESPONSIBILITIES
4.1 Customer Responsible for User Accounts. Customer is responsible for all activity occurring under Customer’s User accounts (except to the extent any such activity is caused by Totaltrac), and for complying with all applicable laws and regulations in using the Service. Customer also must (a) notify Totaltrac promptly upon becoming aware of any unauthorized use of any Customer password or account (or any other breach of security of the Service), and (b) notify Totaltrac promptly upon becoming aware of, and stop, any unauthorized copying, distribution or other misuse of any aspect of the Service.
4.2 Use Restrictions. Customer must not, without Totaltrac’s prior written consent, cause or permit the: (a) use, copying, modification, rental, lease, sublease, sublicense, transfer or other commercial exploitation of, or other third party access to, any element of the Service, except to the extent expressly permitted by this Agreement (Customer may allow its own customers to access the functionality or output of the Service, via interfaces, portal applications and the like, solely for Customer’s internal business purposes in accordance with the applicable Order Form); (b) creation of any modifications or derivative works of the Service; (c) reverse engineering of the Service; (d) gaining of unauthorized access to the Service or its related systems or networks (for example, by impersonation of another user of the Service or provision of false identity information); (e) interference with or disruption of the integrity or performance of the Service or the data contained therein (for example, via unauthorized benchmark testing or penetration testing); (f) sending, storing or use of any Customer Data in connection with the Service for which Customer lacks sufficient ownership or other rights; or (g) sending, storing or use of any infringing, obscene, threatening, libelous or otherwise unlawful or tortious material in connection with the Service (including, without limitation, any illegal spam, or any material that is harmful to children or violates any third party privacy rights). Customer also must not send, store or use any material containing any viruses, worms, Trojan horses or other malicious or harmful computer code, files, scripts, agents or programs in connection with the Service. Totaltrac also reserves the right to take all steps reasonably necessary to protect the security, integrity or availability of the Service (e.g., by temporarily suspending access by anyone who introduces malicious code or attempts to do so), notwithstanding anything to the contrary in this Agreement.
4.3 Customer PCI Responsibilities. If Customer or its third party service provider processes any credit card information using the Service, Customer (and/or such service provider, as applicable) will: (a) comply with their responsibilities under the Payment Card Industry Data Security Standard (“PCI DSS”); (b) implement and maintain commercially reasonable security measures to protect all cardholder data in their possession or control; and (c) not take any action in connection with using the Service that places Totaltrac in non-compliance with the PCI DSS (for example, storing any cardholder data in any custom fields of the Service).
5. PRIVACY, SECURITY, CONTINUITY & SUPPORT
5.1 Compliance with Privacy Laws. Totaltrac will use Customer Data only as permitted by Privacy Laws and this Agreement. Notwithstanding the foregoing, if complying with Privacy Laws would materially change Totaltrac’s costs or risks in providing the Service (including, without limitation, by requiring that any Totaltrac data centers be located outside the U.S., or requiring Totaltrac to operate in violation of any U.S. laws), each Party will have the right to terminate this Agreement (including all Order Forms and SOW) under Sections 6.2 and 6.5 upon at least thirty (30) days prior written notice to the other Party, unless the Parties agree in writing within such 30-day period that Totaltrac may continue to provide the Service to Customer without complying with the Privacy Laws giving rise to such material change. In the event of such a termination, Customer’s sole right and Totaltrac’s sole obligation will be for Totaltrac to promptly refund to Customer, on a pro rata basis, any Fees paid under all Order Forms and SOW then in effect that are unused as of the termination effective date.
5.2 Security of the Service. Throughout the term of this Agreement, Totaltrac will maintain a data security program for the Service that will: (a) include reasonable administrative, physical, technical, organizational and other security measures to protect against unauthorized access to, or destruction, loss, unavailability or alteration of, any Customer Data processed or stored by the Service; and (b) comply with the PCI DSS (or prevailing successor industry standard, if replaced). Totaltrac will not be responsible or liable for any deletion, correction, damage, destruction or loss of Customer Data that does not arise from a breach by Totaltrac of its obligations under this Agreement.
5.3 Financial Account Data. The Service allows Customer to export and back-up Customer Data at its discretion, and Totaltrac encourages Customer to do so regularly. Customer will need assistance from Totaltrac, however, to export credit card account information or other Customer Data (e.g., ACH direct debit account information) that is subject to the PCI DSS or other financial industry rules or regulations regarding account information (collectively, “Financial Account Data”). Totaltrac will provide Financial Account Data only to recipients that have the required certifications and qualifications (e.g., certification to receive information that is subject to the PCI DSS). Any export or transfer of Financial Account Data must occur no later than thirty (30) days after expiration or termination of this Agreement, and will require Customer to first pay all amounts owed Totaltrac and to sign a separate written agreement to (a) help ensure the security and integrity of such data is maintained, and (b) give Totaltrac reasonable protection against liability relating to extraction, transfer and potential misuse of such data. Totaltrac will assist with one extraction of Financial Account Data free of charge; Customer will be charged for any other data extraction at Totaltrac’s prevailing Professional Services rates.
5.4 Business Continuity & Disaster Recovery. Totaltrac will implement and maintain throughout the term of this Agreement commercially reasonable business continuity and disaster recovery plans to help ensure availability of the Customer Data following any significant interruption or failure of critical business processes or systems affecting the Service.
5.5 Support & Service Level Agreement. Totaltrac will provide technical support for the Service in accordance with Exhibit A to this Agreement (Support and Service Level Agreement) as long as Customer is entitled to receive support under the applicable Order Form and this Agreement.
6. TERM & TERMINATION
6.1 Term of Agreement. This Agreement will begin on the Effective Date and continue in effect until all Order Forms and SOW expire or are terminated in accordance with Section 6.5.
6.2 Termination of Agreement. Neither Party will have the right to terminate this Agreement without legally valid cause (a/k/a “for convenience”). This Agreement may only be terminated by written notice after all Order Forms and SOW have expired or been terminated in accordance with Section 6.5.
6.3 Effect of Expiration or Termination of Agreement. Sections 1, 2, 4.2, 5.3, 6.3, 6.6, 8, 9, 10, 11, 12.3, 13, 14, 15, 16 and 17 of this Agreement will survive any expiration or termination of this Agreement. The applicable Order Forms and SOW may identify additional terms that will survive any expiration or termination of this Agreement. Regardless of the basis for expiration or termination of this Agreement, Totaltrac will not be obligated to retain any Customer Data for longer than thirty (30) days after any such expiration or termination.
6.4 Term of Order Forms. The term of particular Order Forms will be set forth therein, starting on the Effective Date specified therein and continuing for the initial term specified therein (“Initial Service Term”).
PLEASE CAREFULLY REVIEW THESE AUTOMATIC RENEWAL TERMS AND THOSE IN SECTION 7.2. Unless otherwise set forth in the applicable Order Form, or unless the Order Form is terminated in accordance with Section 6.5, upon expiration of the Initial Service Term, the relevant Order Form will renew automatically for a subsequent renewal term of twelve (12) months (“Renewal Service Term“), unless either Party notifies the other Party in writing, at least thirty (30) days (subject to Section 7.2) prior to the end of the then-current Service Term, that it chooses not to renew. The Initial Service Term and all Renewal Service Terms (if any) are referred to in this Agreement collectively as the “Service Term.”
6.5 Termination of Order Forms or SOW. Either Party may terminate any Order Forms and/or SOW in accordance with their respective terms. If not specified in the applicable Order Form or SOW, then subject to the exclusive remedy provisions in this Agreement (e.g., in the sections regarding warranties and Service Credits): either Party may terminate any Order Forms or SOW for cause upon written notice if the other Party fails to cure any material breach thereof within thirty (30) days after receiving reasonably detailed written notice from the other Party alleging the breach.
6.6 Effect of Termination of Order Forms or SOW.
Subject to the exclusive remedy provisions in this Agreement (e.g., in the sections regarding Compliance with Privacy Laws, Indemnification, Warranties and Service Levels): (a) if Customer terminates an Order Form or SOW in accordance with Section 6.5, Customer will be entitled to a refund, on a pro rata basis, of any Fees paid thereunder that are unused as of the termination effective date; and (b) if Totaltrac terminates an Order Form or SOW in accordance with Section 6.5, all amounts owed by Customer thereunder will become due and payable.
7. ORDER PROCESS
Customer orders the Totaltrac Service via one or more Order Forms, and Customer may also order Totaltrac’s Professional Services via one or more SOW.
7.1 Purchase Orders. If Customer requires that a purchase order (“PO”) be issued before making payment under an Order Form or SOW, Customer must provide to Totaltrac such valid PO conforming to the applicable Order Form or SOW in time for Customer to meet its payment obligations. The terms and conditions of any PO (or of any other unilateral Customer document not agreed in writing by authorized representatives of both Parties) will have no effect on the rights or obligations of the Parties, regardless of any failure to object to such terms and conditions.
7.2. Modification of Fees Upon Renewal. Totaltrac reserves the right to modify the Fees for its Service under one or more Order Forms, effective upon commencement of the next Renewal Service Term of the relevant Order Form(s), by notifying Customer in writing at least thirty (30) days before the end of the then-current Service Term, unless Customer notifies Totaltrac in writing, at least twenty (20) days prior to the end of the then-current Service Term, that Customer chooses not to renew such Order Form(s).
8. FEES & PAYMENT
8.1 Payment Details. Customer must pay all fees and charges in accordance with this Agreement and each mutually executed Order Form and SOW (“Fees”). Except to the extent otherwise expressly stated in this Agreement or in an Order Form or SOW:
a. all obligations to pay Fees are non-cancelable and all payments are non-refundable;
b. Customer must make all payments without setoffs, withholdings or deductions of any kind;
c. Customer must pay all Fees due under all Order Forms and SOW within thirty (30) days after Customer receives each invoice (invoices are deemed received when Totaltrac emails them to Customer’s designated billing contact); and
d. all payments must be in U.S. dollars.
Except to the extent otherwise expressly stated therein, if an applicable Order Form or SOW provides for payment via credit card or electronic money transfer (e.g., ACH), Totaltrac is permitted to process such payment on the date of Totaltrac’s invoice.
In accordance with each Order Form: (i) Totaltrac charges and collects in advance Service Edition Fees for use of the Service based on the edition of the Service subscribed to by Customer, and Customer’s anticipated transaction volume using the Service. Totaltrac will invoice Customer for recurring Fees thirty (30) days prior to the start of each period following the applicable Initial Service Term; and (ii) Customer will pay the applicable additional fees, monthly in arrears, if Customer’s use of the Service exceeds the transaction volume specified in the applicable Order Form.
8.2 Taxes. Totaltrac’s Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities in connection with any Order Forms or SOW. Customer is responsible for paying all such taxes, levies, or duties, excluding only taxes based solely on Totaltrac’s income. If Totaltrac has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer unless Customer provides Totaltrac a valid tax exemption certificate authorized by the appropriate taxing authority.
8.3 Customer Contact Information. Customer agrees to provide Totaltrac accurate billing and other contact information for each Order Form and SOW at all times during the Service Term, including the name of Customer’s applicable legal entity, and the street address, e-mail address, name and telephone number of an authorized billing contact. Customer shall update this information within thirty (30) days after any changes, via email to Totaltrac’s Accounts Receivable team at for billing contact information. Customer shall also maintain, at all times during the Service Term, at least one User who is a current employee and is authorized to administer Customer’s use of the Service (e.g., by creating accounts and resetting passwords).
8.4 Consequences of Non-Payment. If Customer fails to make any payments required under any Order Forms or SOW, then in addition to any other rights Totaltrac may have under this Agreement or applicable law:
a. Customer will owe Totaltrac an interest penalty of one and one-half percent (1.5%) per month on any outstanding balance under each delinquent invoice, or the maximum permitted by law (whichever is less);
b. Totaltrac will be entitled to recover its reasonable attorneys’ fees, other legal expenses (including expert witness fees and expenses on appeal) and other reasonable costs to collect such amounts; and
c. Totaltrac reserves the right to temporarily suspend Customer’s access to the Service if Customer’s account remains delinquent for thirty (30) days after receipt of a delinquency notice from Totaltrac (which may be provided via email to Customer’s billing contact). Customer will continue to incur and owe all applicable Fees irrespective of any such Service suspension due to Customer’s delinquency.
9. NON-PRODUCTION USAGE
From time to time, to the extent applicable, Customer may use the Service for evaluation, demonstration, testing or other purposes where such use is outside a Production Tenant. By using the Service on such a non-production basis, Customer accepts the Service on an “as is” basis and acknowledges Totaltrac provides no express or implied warranties, indemnities or security commitments, and Totaltrac will have no liability, in connection with such use.
10. THIRD PARTY INTERACTIONS
To the extent use of the Service requires use of any third party products or services (e.g., Oracle Java, Adobe Acrobat, Salesforce CRM, Amazon Web Services and/or a Web browser), such products and services may require Customer to agree to separate terms. Similarly, in connection with using the Service, Customer may enter into correspondence with, purchase products and/or services from, and/or participate in promotions of third parties. Any such third party activities, products and services, and any terms associated therewith, are solely between Customer and the relevant third parties. Totaltrac does not support, or endorse or make any representations or warranties regarding, any such third party products or services, and in no event will Totaltrac have any liability whatsoever in connection therewith.
11. PROFESSIONAL SERVICES
If Customer wishes to purchase any training, implementation or other professional services from Totaltrac relating to the Service (“Professional Services”), the Parties will mutually execute one or more separate SOW containing the relevant terms and conditions. Totaltrac Professional Services are separate and apart from the Service, and neither Party’s obligations in connection with the Service are dependent in any way on any Professional Services. Except to the extent expressly set forth to the contrary in any applicable SOW, the following provisions will apply to all SOW:
a. As between Customer and Totaltrac, Customer will retain all ownership rights in and to all copyrightable works, deliverables, designs, inventions, know-how, software, techniques, trade secrets, work product and other materials created by or for Customer without any contribution by Totaltrac and provided to Totaltrac under the SOW. Customer grants Totaltrac a non-exclusive, non-transferable, worldwide, royalty-free license to reproduce, perform, display, distribute, create derivative works of, and otherwise use such Customer-owned materials in connection with providing the Service during the Term of this Agreement and otherwise performing its obligations under this Agreement;
b. As between Customer and Totaltrac, Totaltrac will retain all ownership rights in and to all copyrightable works, deliverables, designs, inventions, know-how, software, techniques, trade secrets, work product and other materials created by or for Totaltrac (either alone or jointly with Customer or others) and provided to Customer under the SOW, and any derivative works thereof, excluding any incorporated Customer Confidential Information (collectively, “Totaltrac PS Materials”); and
c. Subject to the terms of this Agreement, Totaltrac grants Customer a non-exclusive, non-transferable, worldwide, royalty-free license to reproduce, perform, display, create derivative works of, and otherwise use internally the Totaltrac PS Materials in connection with the Service during the Term of this Agreement.
Nothing in this Agreement will prohibit, restrict or limit (i) Totaltrac from performing similar Professional Services for any third party, or (ii) Customer from hiring any third party to perform similar Professional Services (though Customer is not permitted to give any direct competitor of Totaltrac access to the Service or any Totaltrac PS Materials without Totaltrac’s prior written consent).
12. WARRANTIES & DISCLAIMERS
12.1 Mutual Warranties. Each Party represents and warrants to the other that it has the legal power and authority to enter into this Agreement, and that this Agreement has been duly authorized, executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms.
12.2 Additional Totaltrac Commitments. Totaltrac further represents and warrants that:
a. It will use commercially reasonable technical means to screen for and detect disabling devices, viruses, trojan horses, trap doors, back doors, Easter eggs, time bombs, cancelbots and other computer programming routines designed to damage, detrimentally interfere with, surreptitiously intercept or expropriate any other software or data;
b. The Service will perform in accordance with the relevant product information provided at under normal use and circumstances; and
c. It will make commercially reasonable efforts to notify Customer, at least thirty (30) days in advance via Totaltrac’s Normal Communication Channels, of any scheduled changes Totaltrac believes are likely to have a material, adverse impact on Customer’s use of the Service (“Material Changes”). (As a multi-Tenant SaaS vendor, Totaltrac reserves the right to make enhancements and other changes to the Service, including occasional deprecation and removal of certain features and functionality.)
If Totaltrac breaches any warranties in this Section 12.2, Customer’s exclusive remedy and Totaltrac’s sole obligation will be for Totaltrac to make commercially reasonable efforts to correct the non-conformity or, if Totaltrac is unable to correct the non-conformity within sixty (60) days after receipt of Customer’s written notice, for Customer to terminate the applicable Order Form(s) and receive a refund, on a pro rata basis, of any Service Edition Fees prepaid under such Order Form(s) that are unused as of the termination effective date.
12.3 Warranty Disclaimers. EXCEPT TO THE EXTENT EXPRESSLY STATED IN THIS AGREEMENT: (A) TOTALTRAC AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED (IN FACT OR BY OPERATION OF LAW), REGARDING THE SERVICE, PROFESSIONAL SERVICES, OR ANY MATTER WHATSOEVER; AND (B) TOTALTRAC AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICE OR ANY PROFESSIONAL SERVICES ARE OR WILL BE ERROR-FREE, MEET CUSTOMER’S REQUIREMENTS, OR BE TIMELY OR SECURE. TOTALTRAC AND ITS LICENSORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICE AND ANY PROFESSIONAL SERVICES, AND CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON TO ANY THIRD PARTY ANY REPRESENTATION OR WARRANTY BY TOTALTRAC.
THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET OR ELECTRONIC COMMUNICATIONS. TOTALTRAC IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE, LOSS OR LIABILITY RESULTING FROM SUCH PROBLEMS NOT CAUSED BY TOTALTRAC.
Customer agrees that ITS SUBSCRIPTION TO THE SERVICE AND FEES DUE OR PAID UNDER THIS AGREEMENT ARE neither contingent on the delivery of any future functionality or features, nor BASED on any oral or written comments regarding ANY future functionality or features.
13.1 By Totaltrac. Totaltrac will defend Customer, its Affiliates, officers, directors and employees from and against any claims asserted by a third party based on an allegation that use of the Service in accordance with this Agreement and the applicable Order Form(s) infringes a copyright in any country or a patent of the U.S.A., a member state of the European Union, Canada or Australia (collectively, “Claims”). Totaltrac will also indemnify Customer and its Affiliates, officers, directors and employees by paying all damages, costs and expenses (including reasonable legal fees and costs) finally awarded by a court of competent jurisdiction, or agreed in a written settlement agreement signed by Totaltrac, arising out of such Claims.
If (a) any aspect of the Service is found by a court or, in Totaltrac’s reasonable opinion is likely to be found by a court, to infringe upon a third party Intellectual Property Right, or (b) the continued use of the Service is enjoined, Totaltrac will promptly and at its own expense: (i) obtain for Customer the right to continue using the Service in accordance with this Agreement and the applicable Order Form(s); (ii) modify the item(s) in question to no longer be infringing; or (iii) replace such item(s) with a non-infringing functional equivalent. If, after all commercially reasonable efforts, Totaltrac determines in good faith that options (i), (ii) and (iii) are not feasible, Totaltrac will remove the infringing item(s) from the Service and refund to Customer on a pro rata basis any Fees paid by Customer for such infringing element(s) that are unused as of the removal date.
Totaltrac will have no obligation or liability for any Claim under this section to the extent arising from: (x) the combination, operation or use of the Service with any product, device, software or service not supplied by Totaltrac to the extent the combination creates the infringement; (y) the unauthorized alteration or modification by Customer of the Service, or (z) Totaltrac’s compliance with Customer’s designs, specifications, requests, or instructions in providing Professional Services to the extent the Claim is based on such compliance.
13.2 By Customer. Customer will defend Totaltrac, its Affiliates, officers, directors and employees from and against any claims asserted by a third party based on a breach by Customer of Section 4 (Customer Responsibilities) of this Agreement. Customer will also indemnify Totaltrac and its Affiliates, officers, directors and employees by paying all damages, costs and expenses (including reasonable legal fees and costs) finally awarded by a court of competent jurisdiction, or agreed in a written settlement agreement signed by Customer, arising out of the third party claims described in this section.
13.3 Requirements for Indemnification.
Each Party’s respective defense and indemnity obligations under Sections 13.1 and 13.2 are contingent upon the indemnified Party: (a) promptly giving notice of the third party claim to the defending/indemnifying Party once the claim is known; (b) giving the defending/indemnifying Party sole control of the defense and settlement of the claim and not compromising or settling the claim without the defending/indemnifying Party’s approval (though the defending/indemnifying Party must not settle such claim unless the settlement unconditionally releases the other Party of all liability and does not adversely affect the other Party’s business or service in a material manner); and (c) providing appropriate information and reasonable cooperation to the defending/indemnifying Party in connection with the claim.
THE FOREGOING ARE THE DEFENDING/INDEMNIFYING PARTY’S SOLE OBLIGATIONS, AND THE INDEMNIFIED PARTY’S EXCLUSIVE REMEDIES WITH RESPECT TO INDEMNIFICATION AND THE MATTERS ADDRESSED IN THIS SECTION 13.
14. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
14.1 EXCEPT FOR SUMS DUE TOTALTRAC UNDER APPLICABLE ORDER FORMS AND SOW, AND EXCEPT WITH RESPECT TO CUSTOMER’S OBLIGATIONS AND CUSTOMER’S LIABILITY UNDER SECTIONS 4.2 (USE RESTRICTIONS), 4.3 (CUSTOMER PCI RESPONSIBILITIES) AND 13 (INDEMNIFICATION), NEITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT WILL EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY;
14.2 EXCEPT WITH RESPECT TO CUSTOMER’S OBLIGATIONS AND CUSTOMER’S LIABILITY UNDER SECTIONS 4.2 (USE RESTRICTIONS), 4.3 (CUSTOMER PCI RESPONSIBILITIES) AND 13 (INDEMNIFICATION), IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES OR LICENSORS BE LIABLE OR OTHERWISE OBLIGATED TO THE OTHER PARTY OR ANYONE ELSE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS PREVIOUSLY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND
14.3 THE TERMS OF THIS SECTION 14 APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT (INCLUDING, BUT NOT LIMITED TO, BREACH OF WARRANTY), TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
THE PROVISIONS OF THIS SECTION 14 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND TOTALTRAC, AND THE FEES CHARGED FOR THE SERVICE REFLECT THIS ALLOCATION OF RISKS AND THESE LIMITATIONS OF LIABILITY.
15.1 Definition. As used in this Agreement, “Confidential Information” means information and materials provided by the disclosing Party (“Discloser”) to the Party receiving such information or materials (“Recipient”) that (a) are identified as confidential at the time of disclosure, or (b) a reasonable person in the relevant industries should understand to be confidential based on the nature of the information and materials and all other relevant factors. For the avoidance of doubt, Customer’s Confidential Information includes, without limitation, the Customer Data and Customer’s non-public business plans, and Totaltrac’s Confidential Information includes, without limitation, all pricing terms offered to Customer under any Order Form, Totaltrac’s non-public business plans, all non-public aspects of the Totaltrac Technology, and the results of any evaluation of the Service performed by or on behalf of Customer for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
15.2 Purpose. Recipient must not use any of Discloser’s Confidential Information for any purpose other than carrying out Recipient’s obligations or exercising its rights under this Agreement (the “Purpose”). For the avoidance of doubt, use of Confidential Information in an aggregated and anonymized manner that does not include personally identifiable information and/or personal information is not prohibited.
15.3 Permitted Disclosures and Obligations. Recipient also must not disclose to any third party any Confidential Information, other than to Recipient’s Affiliates, contractors and consultants who (a) need to know such information in order to fulfill the Purpose, and (b) are bound by confidentiality obligations substantially similar to Recipient’s under this Agreement (each Party is fully responsible for its respective Affiliates’, contractors’ and consultants’ compliance with this Agreement). Recipient must treat all Discloser Confidential Information with the same degree of care Recipient gives to its own Confidential Information, but not less than reasonable care. Further, neither Party may disclose publicly the existence or nature of any negotiations, discussions or consultations in progress between the Parties without the prior written consent of the other Party. Recipient and its Affiliates, contractors and consultants who receive Confidential Information hereunder must: (i) not use any such Confidential Information to compete with Discloser or in any other way except as reasonably necessary for the Purpose; (ii) not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects received from Discloser under this Agreement that embody Confidential Information; (iii) promptly notify Discloser of any unauthorized use or disclosure of its Confidential Information of which Recipient becomes aware; and (iv) reasonably assist Discloser in remedying any such unauthorized use or disclosure.
15.4 Exclusions. Recipient’s obligations under Section 15 will not apply to any Discloser Confidential Information that Recipient can prove: (a) is or becomes part of in the public domain through no fault of Recipient; (b) is rightfully in Recipient’s possession free of any confidentiality obligation; (c) was independently developed by Recipient without use of any Discloser Confidential Information; or (d) is communicated by Discloser to an unaffiliated third party free of any confidentiality obligation. A disclosure by Recipient of any Confidential Information (i) in response to a valid order or other legal process issued by a court or other governmental body having jurisdiction, (ii) as otherwise required by law, or (iii) necessary to establish the rights of either Party under this Agreement will not be a breach of this Agreement if, to the extent legally permitted, Recipient gives Discloser prompt notice and reasonable cooperation so Discloser may seek to prevent or limit such disclosure.
15.5 Ownership and Destruction of Confidential Information. As between Discloser and Recipient, all Discloser Confidential Information is the property of Discloser, and no license or other rights are granted or implied hereby. All materials provided to Recipient by Discloser, whether or not they contain or disclose Confidential Information, are Discloser’s property. Promptly after any request by Discloser, Recipient will (a) destroy or return to Discloser all Confidential Information and materials in Recipient’s possession or control, and (b) upon written request by Discloser, confirm such return/destruction in writing; provided, however, that the Recipient may retain electronic copies of any computer records or electronic files containing any Discloser Confidential Information that have been created pursuant to Recipient’s standard, commercially reasonable archiving and backup practices, as long as Recipient continues to comply with this Agreement with respect to such electronic backup copies for so long as such Confidential Information is retained.
15.6 Export. Exchange of Confidential Information under this Agreement is subject to all applicable export laws and regulations. Except to the extent permitted by a separate written agreement, the Parties will not disclose any information requiring an authorization to be exported. Each Party also specifically agrees to comply with all applicable laws, regulations, orders and sanctions relating to prohibitions or limitations on relationships or transactions with prohibited countries or individuals (e.g., those administered by the U.S. Commerce or Treasury Departments).
15.7 Confidentiality Period. Recipient’s obligations with respect to Discloser’s Confidential Information under Section 15 will remain in effect for the term of this Agreement and for three (3) years after any expiration or termination of this Agreement.
16.1 Governing Law. This Agreement is governed by Pennsylvania law and controlling United States federal law, without regard to conflicts of law provisions of any jurisdiction. Any disputes, actions, claims or causes of action arising out of or relating to this Agreement or the Service will be subject to the exclusive jurisdiction of the state and federal courts located in Philadelphia, Pennsylvania, USA. The Service is a service, not a good, and is not subject to the Uniform Commercial Code, the Uniform Computer Information Transactions Act, or the United Nations Convention on the International Sale of Goods.
16.2 Assignment. Neither Party may assign, sublicense or otherwise transfer (by operation of law or otherwise) this Agreement, or any of a Party’s rights or obligations under this Agreement, to any third party without the other Party’s prior written consent, which consent must not be unreasonably withheld, delayed or conditioned; provided, however, that upon written notice to the other Party, either Party may assign or otherwise transfer this Agreement, along with all associated Order Forms and SOW (and all its rights and obligations thereunder), (a) to a successor-in-interest in connection with a merger, acquisition, reorganization, a sale of most or all of its assets, or other change of control, or (b) to its Affiliate. In the event of such a permitted transfer by Customer, the rights granted under this Agreement shall continue to be subject to the same usage limitations that applied under applicable Order Forms prior to the transfer (e.g., any transaction volume terms and limitations to particular Customer legal entities, business units, projects, brands, products and/or services set forth therein). Any purported assignment or other transfer in violation of this section is void. Subject to the terms of this section, this Agreement will bind and inure to the benefit of the Parties and their respective permitted successors and transferees.
Notwithstanding anything to the contrary in this section, in the event of any permitted transfer by Customer under this section to a direct competitor of Totaltrac, Totaltrac will have the right to terminate this Agreement (including all associated Order Forms and SOW) for cause under Section 6.5. In the event of such a termination, Totaltrac will promptly refund to Customer, on a pro rata basis, all Fees prepaid by Customer under all Order Forms and SOW then in effect that are unused as of the termination effective date.
16.3 Force Majeure. If either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (other than payment obligations) due to any cause beyond its reasonable control, e.g., war, riots, labor unrest, fire, earthquake, flood, hurricane, other natural disasters and acts of God, Internet service failures or delays, and denial of service attacks (collectively, “Force Majeure”), the affected Party’s performance will be excused for the resulting period of delay or inability to perform.
16.4 Marketing. Totaltrac will only identify the Customer as a Totaltrac customer on Totaltrac’s website and/or marketing materials upon receipt of written permission by the Customer.
16.5 Independent Contractors. The Parties are independent contracting parties. Neither Party has, or will hold itself out as having, any right or authority to incur any obligation on behalf of the other Party. The Parties’ relationship in connection with this Agreement will not be construed as a joint venture, partnership, franchise, employment, or agency relationship, or as imposing any liability upon either Party that otherwise might result from such a relationship.
16.6 Notices. All legal notices (e.g., notice of termination of this Agreement or an Order Form based on an alleged material breach) required under this Agreement must be delivered to the other Party in writing (a) in person, (b) by nationally recognized overnight delivery service, or (c) by certified U.S. mail (requiring signature) to the other Party’s corporate headquarters, Attention: Legal Department. With respect to all other notices, Customer may email Totaltrac at , and Totaltrac may email Customer’s billing contact identified on the applicable Order Form(s) or SOW. Either Party may change its notice address by giving written notice to the other Party.
16.7 Anti-Corruption. Customer acknowledges it has not received or been offered any illegal or otherwise improper bribe, kickback, payment, gift or other thing of value by any Totaltrac employee, representative or agent in connection with this Agreement. Customer will use reasonable efforts to promptly notify Totaltrac at if Customer becomes aware of any circumstances that are contrary to this acknowledgment.
16.8 Government Users. If Customer is a U.S. government entity, or this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that the Service constitutes software and documentation provided as “Commercial Items” under 48 C.F.R. 2.101 and developed solely at private expense, and are being licensed made accessible to U.S. government Users as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
16.9 Execution. This Agreement may be signed electronically and in counterparts, in which case each signed copy will be deemed an original as though both signatures appeared on the same document.
16.10 Entire Agreement. This Agreement, together with any applicable Order Forms and SOW (including any other terms referenced in any of those documents), comprises the entire agreement between Customer and Totaltrac regarding the subject matter of this Agreement, supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding such subject matter, and may only be modified by a document signed by authorized representatives of both Parties.
As used in this Agreement:
“Affiliate” means a company, corporation, individual, partnership or other legal entity that directly or indirectly controls, is controlled by, or is under common control with a Party to this Agreement. For purposes of this definition, “control” means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;
“Tenant” means a single, discrete operational environment within Totaltrac’s SaaS environment in which Customer may use the Service. “Non-Production Tenant” means a Tenant the use of which is restricted to processing non-production data solely for evaluation and/or testing. “Production Tenant” means a Tenant that Customer is permitted to use to process live Customer Data for production use in accordance with the applicable Order Form;
“Content” means the audio and visual information, documentation, software, products and services contained in or made available via the Service, other than Customer Data and Customer Confidential Information;
“Customer Data” means any data, information or material received by the Service from Customer or Customer’s Users in the course of accessing or using the Service;
“Intellectual Property Rights” means rights under any copyright, patent, trademark, trade secret and other intellectual property laws worldwide;
“Normal Communication Channels” means the online channels through which Totaltrac normally communicates important information to its customers, e.g., Totaltrac’s online Knowledge Center and community site, and/or the email address(es) provided by Customer. (Customer must opt-into Totaltrac’s online community site to receive certain important information regarding such changes and to take other required action relating to use of the Service.);
“Privacy Laws” means all European Union member country and U.S. laws and regulations regarding data privacy and transmission of personal data that apply to Totaltrac’s provision of the Service to Customer (e.g., storing and processing Customer Data), including, without limitation, Articles 25(1) and 26(1) of EU Directive 95/46/EC of 24 October 1995;
“Service” means the Totaltrac® SaaS service for subscription relationship management, accessible via and/or another Web site or IP address designated by Totaltrac, which Totaltrac provides to Customer under an Order Form, as further described at ?cid=EDI-0001. “Service” also includes all its components, and all Content and Totaltrac Technology;
“SOW” means Statement(s) of Work, Work Authorization(s) or other contract(s) under which Totaltrac provides its Professional Services, if any;
“User(s)” means Customer’s customers, employees, representatives, consultants, contractors and agents who have been authorized by Customer to use the Service; and
“Totaltrac Technology” means all of Totaltrac’s and its licensors’ proprietary technology that Totaltrac makes available to Customer as part of or in connection with the Service (including, without limitation, any and all software, hardware, products, processes, APIs, algorithms, user interfaces, trade secrets, know-how, techniques, designs and other tangible or intangible technical material or information).
(SUPPORT AND SERVICE LEVEL AGREEMENT)
This is Exhibit A to Totaltrac’s Master Subscription Agreement (the “Agreement”). Capitalized terms not defined herein have the meaning indicated in the Agreement and its associated Order Form(s).
I. SUPPORT CONTACTS, TOTALTRAC COMMUNITY & CUSTOMIZATIONS:
A. For support of all Edition levels, Customer will appoint up to three (3) designated support contact persons knowledgeable regarding the Service for purposes of contacting Totaltrac’s support team about technical support issues with the Service, including reporting such issues via Totaltrac’s designated support portal / channel.
B. Customer must opt-into Totaltrac’s online community site to receive certain important information regarding updates and other changes to the Service, and to take other required action relating to support and use of the Service.
C. The commitments under this exhibit do not apply to customizations, enhancements or other non-standard modifications to the Service requested or made by Customer.
II. SUPPORT FOR TOTALTRAC NON-PRODUCTION TENANTS (FOR ALL CUSTOMERS AND ALL EDITIONS):
A. RESPONSE TIMES: For all support issues relating to Totaltrac Non-Production Tenants, Totaltrac will make a commercially reasonable effort to respond promptly (via Totaltrac’s Normal Support Channels, defined below) to all tickets submitted through Totaltrac’s designated support portal / channel, in any event within two (2) Business Days after receipt. If Totaltrac fails to meet this response time commitment, Customer’s exclusive remedy and Totaltrac’s sole obligation will be: (a) for Totaltrac to make commercially reasonable efforts to respond promptly after Customer notifies Totaltrac that it failed to meet this response time commitment; and (b) if Totaltrac fails to meet this response time commitment five (5) times during a 3-month period, for Customer to terminate the applicable Order Form and receive a refund, on a pro rata basis, of any Fees paid for the Non-Production Tenant(s) that are unused as of the termination effective date.
”Business Day” means Monday through Friday, based on the time zone of Customer’s primary place of business.
“Totaltrac’s Normal Support Channels” means Totaltrac’s online support portal, Totaltrac’s online community site, the “Support” page located at , and emails sent to the contact duly designated by Customer.
B. SERVICE LEVELS & SERVICE CREDITS: No Service Level or Service Credit commitments apply to Non-Production Tenants.
III. SUPPORT FOR PRODUCTION TENANTS (FOR ALL CUSTOMERS AND ALL EDITIONS):
A. RESPONSE TIMES: For all support issues relating to Totaltrac Production Tenants, Totaltrac will make a commercially reasonable effort to respond promptly (via Totaltrac’s Normal Support Channels) to all tickets submitted through Totaltrac’s designated support portal / channel, in any event within two (2) Business Days after receipt. If Totaltrac fails to meet this response time commitment, Customer’s exclusive remedy and Totaltrac’s sole obligation will be: (a) for Totaltrac to make commercially reasonable efforts to respond promptly after Customer notifies Totaltrac that it failed to meet this response time commitment; and (b) if Totaltrac fails to meet this response time commitment three (3) times during a 3-month period, for Customer to terminate the applicable Order Form and receive a refund, on a pro rata basis, of any Fees paid for the Production Tenant(s) that are unused as of the termination effective date; and
B. SERVICE LEVELS & SERVICE CREDITS:
1. Uptime Commitment
The Quarterly Uptime Percentage for the Service will be ninety-nine and nine-tenths percent (99.9%) (the “Uptime Commitment”). Subject to the exclusions described in Subsection IV-B-2 below, “Quarterly Uptime Percentage” is calculated by subtracting from 100% the percentage of 1-minute periods during any quarterly billing cycle (i.e., 3 calendar months) in which Customer’s Production Tenant(s) is(are) Unavailable out of the total number of minutes in that quarterly billing cycle. “Unavailable” and “Unavailability” mean that, in any 1-minute period, all connection requests received by Customer’s Production Tenant(s) failed to process (each a “Failed Connection”); provided, however, that no Failed Connection will be counted as a part of more than one such 1-minute period (e.g. a Failed Connection will not be counted for the period 12:00:00-12:00:59 and the period 12:00:30-12:01:29). The Quarterly Uptime Percentage will be measured based on the industry standard monitoring tools Totaltrac uses.
2. Exclusions from Quarterly Uptime Percentage
Notwithstanding anything to the contrary in this exhibit, any Service Unavailability issues resulting from any of the following will be excluded from calculation of Quarterly Uptime Percentage:
2.1 Regularly scheduled maintenance of the Service that does not exceed six (6) hours per 3-month period and is communicated by Totaltrac at least twenty-four (24) hours in advance via Totaltrac’s Normal Support Channels. (Totaltrac typically schedules such regularly scheduled maintenance once per month.);
2.2 any failures of the Totaltrac Standard and Custom Reporting Services;
2.3 any issues with a third party service to which Customer subscribes;
2.4 any problems not caused by Totaltrac that result from (a) computing or networking hardware, (b) other equipment or software under Customer’s control, (c) the Internet, or (d) other issues with electronic communications;
2.5 Totaltrac’s suspension or termination of the Service in accordance with the Agreement and/or its associated Order Form;
2.6 software that has been subject to unauthorized modification by Customer;
2.7 negligent or intentional misuse of the Service by Customer; or
2.8 “Beta” or “limited availability” products, features and functions identified as such by Totaltrac.
3. Service Credits
If Totaltrac does not meet the Uptime Commitment with respect to any particular calendar quarter (i.e., the Quarterly Uptime Percentage was below 99.9%), and Customer is negatively impacted thereby, then as Customer’s sole and exclusive remedy, and only upon Customer’s written request in accordance with Section 4 below:
Totaltrac will provide to Customer, for each calendar month in such quarter during which the Monthly Uptime Percentage was below 99.9% a service credit (“Service Credit(s)”) equal to the Service Edition Fees paid by Customer for the Service during that month under all affected Order Forms then in effect (but excluding any Professional Services fees).
For purposes of the preceding sentence, “Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of 1-minute periods during any billing cycle for a calendar month during which Customer’s Production Tenant(s) is(are) Unavailable out of the total number of minutes in that monthly billing cycle. The Monthly Uptime Percentage will be measured based on the industry standard monitoring tools Totaltrac uses.
4. Service Credit Process
To receive a Service Credit, Customer must submit a request by sending an email to . To be eligible, the credit request must: (a) include the dates and times of each Unavailability incident that Customer claims to have experienced, along with sufficient details to enable Totaltrac to verify the information; and (b) be received by Totaltrac within thirty (30) Business Days after the last Failed Connection that is part of Customer’s Service Credit claim. If Customer is past due with respect to any payment obligation, or otherwise in material breach of any contractual obligation to Totaltrac, Customer is not eligible for any Service Credits. Service Credits will be issued to Customer within sixty (60) days after Totaltrac confirms that Customer qualifies for the Service Credit under this section.