THESE TERMS AND THE RULES CONSTITUTE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU, OR THE COMPANY ON WHOSE BEHALF YOU ARE USING THE SERVICE ("YOU") AND Team Narwhal, LLC AND ITS AFFILIATES ("TRAKQR"), AND SUPERSEDE ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, RELATING TO THE SUBJECT MATTER OF THIS THESE TERMS AND THE RULES. In the event of any conflicts between the provisions of these Terms and the provisions of the Rules, the provisions of these Terms shall prevail.
RIGHT TO USE AND RESTRICTIONS
1.1 Right to Use.
Subject to these Terms, TRAKQR hereby grants to You a personal, revocable, non-exclusive, non-sublicensable, non-transferable, right to use the Service, solely for: (i) a limited "Free" account subject to usage limits (section 1.2 a) but not bound by any service level (section 1.3), and (ii) in the event that you will decide to upgrade to a paid plan, you are hereby requested to insert your credit card number before your scheduled billing date, following which you will become a paying customer for that period which shall end on the termination of these Terms according to the terms hereof (the "Term").
1.2 Service Limitations.
A "Code" is a unique QR endpoint.
A "Scan" is one unique page load to a code's assigned url.
An "SMS Alert" is a single notification of a Scan via Short Message Service to a United States Mobile telephone. All SMS Alerts will cost an additional 2 cents.
An "Instant Scan Notification" is a single notification of a Scan via Electronic Mail to an email address.
A "Month" is a period of time starting at the first second of one calendar month and ending at the last second of that calendar month.
All plans available are bound by certian limitations. These are:
(a) The "Free" plan may contain up to 3 Codes and may be process up to 25 Scans per Month. Each Scan is allowed one Instant Scan Notification but no SMS Alerts.
(b) The "Personal" plan may contain up to 5 Codes and may process up to 500 Scans per Month. Each Scan is allowed one Instant Scan Notification and one SMS Alert.
(c) The "Business" plan may contain up to 50 Codes and may process up to 1200 Scans per Month. Each Scan is allowed one Instant Scan Notification and one SMS Alert.
(d) The "Unlimited" plan may contain up to 1000000 Codes and may process up to 1000000 Scans per Month. Each Scan is allowed one Instant Scan Notification and one SMS Alert.
1.3 Service Level.
TRAKQR will use reasonable efforts to ensure that the Service is monitored and managed to a committed level of monthly availability in excess of ninety-nine point nine percent (99.9%) of the time. Uptime calculations exclude maintenance times, outages that are caused by You or your equipment, natural disasters or the availability of TRAKQR's infrastructure providers. TRAKQR will make reasonable efforts to schedule down time only between the hours of Saturday 02:00 AM US Central Time to be completed by Sunday 08:00 PM US Central Time. TRAKQR will use commercially reasonable efforts to provide seven (7) day notice prior to any maintenance down time.
1.4 General Restrictions.
The Service and the underlying inventions, ideas and concepts, are the valuable intellectual property of TRAKQR and You agree not to, directly or indirectly, (a) access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, (b) license, sublicense, sell, resell, transfer, assign, distribute or otherwise make the Service available in any manner to any third party, or for the benefit of any third party, or otherwise use or allow others to use the Service, (c) modify or make derivative works based upon the Service, (d) copy, reverse translate, decompile, disassemble or otherwise reverse engineer the Service by any means whatsoever, (e) develop methods to enable unauthorized parties to use the Service, or to develop any other product containing any of the concepts and ideas contained in the Service, (f) remove, deface, obscure or otherwise modify any copyright or other proprietary notices included on or in the Service, (g) send, store, or link to infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (h) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (i) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (j) work around any technical limitations in the Service, or use any tool to enable features or functionalities that are otherwise disabled in the Service, or (k) enter an account that you are not listed as one of its registered users. You shall promptly notify TRAKQR of any actual or suspected violation of the terms of this Section, and of any actual or suspected infringement or unauthorized use of the Service, that You become aware of, and shall assist TRAKQR in its efforts to remedy, prevent or prosecute such infringement or unauthorized use.
1.4A Infrastructure Providers.
As the Service is provided through an infrastructure provider which use of its service is subject to certain restrictions that are available at the websites listed in Schedule A attached hereto ("Infrastructure Providers Terms of Service"). By accepting these Terms, You undertake to strictly comply with the terms and condition of the Infrastructure Providers' Terms of Service. In the event of any inconsistencies or conflicting provisions between the provisions of the Infrastructure Providers Terms of Service and the provisions of these Terms, the provisions of the Infrastructure Providers Terms of Service shall prevail.
1.5 Privacy; Security; Back up.
TRAKQR privacy and security policies may be viewed at the Site, as may be updated by TRAKQR from time to time. TRAKQR uses commercially reasonable efforts to back up the Service and your data. However, TRAKQR does not warrant that the Service or your data shall be secure or available, subject to the Limited Warranty set forth below.
TRAKQR does not own any data, information or material that You submit to the Service in the course of using the Service ("Customer Data"), and shall not use Customer Data except as required to provide the Services and as otherwise stated in the Rules. You hereby grant TRAKQR the right to share any of your Customer Data with: (i) the account owner or its authorized representative, and (ii) such other users that have registered for the same account. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and TRAKQR shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. However, TRAKQR shall have no obligation to make available or maintain any Customer Data for any material breach by You of these Terms or the Rules, including without limitation Your failure to pay applicable payments. In transferring Your Customer Data to and from the Service, you are responsible for complying with all applicable import, re-import, export, and re-export control laws and regulations. Failure to comply with these requirements may result in the immediate termination of your rights under these Terms.
FEES; PAYMENT; NON-PAYMENT
You shall pay to TRAKQR a non-refundable non-cancelable payment in accordance with the fees, charges, and billing terms stated in the Site as in effect at the time a fee or charge is due and payable. TRAKQR reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior notice posted on the Site. Unless otherwise stated, all fees are quoted in U.S. Dollars. All fees payable by You are exclusive of all taxes, where applicable, including value added taxes and withholding taxes, where applicable. You shall pay all taxes and duties (including applicable value added and/or withholding taxes at the prevailing rate on the date of invoice) associated with these Terms, excluding taxes on TRAKQR’s net income.
TRAKQR reserves the right to seek reimbursement from You, if it receives a charge-back from any credit card issuer or with respect to any other payment method, for any reason, by any lawful means.
You agree to provide TRAKQR with complete and accurate billing and contact information. This information includes account owner's name (your legal company name or full name if You are not an entity), e-mail address, and name of an authorized billing contact and credit card information. You agree to update it in writing promptly upon any change to this information. If the contact information you have provided is false or fraudulent, or if your account becomes delinquent, TRAKQR reserves the right to terminate your access to the Service in addition to any other legal remedies.
If You believe your bill is incorrect, You must contact us in writing within fourteen (14) days of the performa invoice containing the amount in question to be eligible to receive an adjustment or credit.
Late payments are subject to all reasonable expenses of collection. If You or TRAKQR initiates termination of these Terms, You will be obligated to pay the balance due on your account computed in accordance with this Section. You agree that TRAKQR may charge such unpaid fees to your credit card or otherwise bill You for such unpaid fees. TRAKQR reserves the right to impose a reconnection fee in the event You are suspended and thereafter request access to the Service.
TITLE AND INTELLECTUAL PROPERTY
Except for the right to use expressly granted herein, all right, title, and interest in and to the Service or any copyrights, patents, trademarks, trade secrets and other intellectual property rights embodied therein or used in connection therewith shall remain with TRAKQR and its licensors. TRAKQR reserves all rights in the Service not expressly granted to You in these Terms. TRAKQR shall own all modifications and derivative works of the Service, whether made by TRAKQR, You or any third party, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Service. You shall not take (and shall not allow any third party to take) any action inconsistent with TRAKQR's ownership and interests as set forth above, or assist any third party in doing the same, and You will report to TRAKQR promptly in writing any instance of suspected infringement of any intellectual property related to the Service and give TRAKQR reasonable assistance in investigating and prosecuting the infringing acts.
LIMITED WARRANTY AND DISCLAIMER OF ALL OTHER WARRANTIES
THE SERVICE IS PROVIDED TO YOU STRICTLY ON AN "AS IS" “WITH ALL FAULTS” AND "AS AVAILABLE" BASIS, except that TRAKQR warrants that the Service will perform in accordance with the terms of Section 1.3 above.
ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY TRAKQR AND ITS LICENSORS.
WHILE TRAKQR MAKES REASONABLE EFFORTS TO ENSURE THAT THE SITE AND THE SERVICE WILL FUNCTION AS CLAIMED, TRAKQR AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR WITH RESPECT TO ANY USE THAT IS NOT IN STRICT COMPLIANCE WITH THESE TERMS, THE RULES OR ANY DOCUMENTATION WE MAKE AVAILABLE TO YOU VIA THE SITE OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, TRAKQR AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE ACCESS TO OR USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, OR WILL NOT BE LOST, DAMAGED OR CORRUPTED, (D) ERRORS OR DEFECTS WILL BE CORRECTED, PATCHES OR WORKAROUNDS WILL BE PROVIDED, OR TRAKQR WILL DETECT EVERY BUG IN THE SERVICE, (E) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (F) THIRD PARTY DISRUPTIONS AND SECURITY BREACHES OF THE SERVICE WILL BE PREVENTED.
LIMITATION OF LIABILITY
TRAKQR’s aggregate liability arising out of or related to these Terms, the use of or inability to access or use the Service will be limited, to the fullest extent possible under applicable law, to an amount equal to the amount paid by You for the Service during the three (3) month period immediately preceding the event giving rise to such claim. In no event will TRAKQR, its affiliates, subsidiaries, or licensors be liable for, except insofar as it is not possible to exclude liability under applicable law, (a) the use of, or inability to use the Service, (b) your inability to access the Service or its proper operation due to any malfunctioning network or the availability of TRAKQR's infrastructure providers, (c) your hardware or software failure, (d) inadequate security on your part, specifically in protecting your any usernames, passwords, registration data and physical access to your hardware, networks and systems, (e) a failure on your part to comply with applicable legal and regulatory obligations including the payment of any tax in respect of your use of the Services, (f) any third party act, in particular remote intrusion or viruses, (g) your breach of these Terms, (h) for costs of procurement of substitute services, (i) for any special, consequential, incidental, indirect, punitive or exemplary damages (including without limitation for loss of profit), or (j) for interruption of use or loss or corruption of data; in each case whether or not TRAKQR has been advised of the possibility of such damage or loss, however caused and on any theory of liability, arising out of or related to these Terms, the use of or inability to use the Service.
7.1 The Service constitutes valuable proprietary information of TRAKQR and its licensors and that unauthorized dissemination or disclosure of the Service or any part thereof could cause TRAKQR irreparable harm. “Confidential Information” means any proprietary information, including trade secrets and other information, which is disclosed by TRAKQR or its affiliates (including without limitation information of affiliates and third parties), whether tangible or intangible, including but not limited to the terms and conditions of these Terms and any information relating to the Service and included in the Service, except any portion thereof which is now available or later becomes available to the public without breach of these Terms, is lawfully obtained from a third party or parties who are under no obligation of confidentiality to TRAKQR, or is known to You prior to such disclosure as evidenced by your written records.
7.2 During and after the term of these Terms You shall hold in strict confidence any and all Confidential Information, shall limit access to the Confidential Information to those of your employees and consultants who need to have access to such information or material for purpose of your use of the Service under these Terms and who are obligated to maintain confidentiality sufficient to protect TRAKQR’s rights in the Confidential Information, shall protect the confidentiality of the Confidential Information with the same degree of care as for its own information of like importance, but at least use reasonable care and shall not use the Confidential Information except for exercising its rights hereunder.
7.3 During and after the term of these Terms TRAKQR shall hold in strict confidence any and all Customer Data, and shall use Customer Data only for purpose of providing the Service, and shall protect the confidentiality of the Customer Data with the same degree of care as for TRAKQR's own information of like importance, but at least use reasonable care. TRAKQR may delete the Customer Data at the end of the Trial Period or during the Term after one (1) business day of termination of the right to use granted by TRAKQR pursuant to these Terms or such longer period as may be determined by TRAKQR.
You shall at your expense, indemnify and hold TRAKQR, its officers, directors, agents and employees harmless from and against any action, claim, suit or proceeding and shall pay all costs, liabilities, damages and reasonable attorney fees to the extent arise from or in connection with (i) your use of the Service, or any other use, misuse, or unauthorized use of the Service through your username and password; or (ii) the Customer Data provided by or on Your behalf. TRAKQR shall provide You with written notice of the claim, permit You to control the defense, settlement, adjustment or compromise of any such claim, and reasonably cooperate with You in the defense and any related settlement action. TRAKQR reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by You.
TERM AND TERMINATION
The Term of these Terms may be terminated by TRAKQR (i) upon written notice to You due to a breach of these Terms by You which was not cured within three (3) days of TRAKQR's notice; or (ii) upon seven (7) days written notice to You, for any or no reason, in which case we shall refund a proportion of the amount paid by you for the Service which relates to the remaining term of these Terms, if any.
The Term of these Terms may be terminated by You at any time by deleting your account, pursuant to which You will cease to be a paying customer.
STATUTE OF LIMITATIONS
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
You understand and agree that TRAKQR may display your name, or the Company's name on whose behalf you are using the Service, at the Site, as part of TRAKQR customers' list.
The remedies under these Terms shall be cumulative and not alternative and the election of one remedy shall not preclude pursuit of other remedies unless expressly provided in these Terms. You agree to comply with all export and re-export restrictions and regulations, including all US export laws and regulations, and to not transfer, or encourage, assist, or authorize the use or transfer of the Service to a prohibited country, or otherwise in violation of any applicable restrictions or regulations. You may not assign your rights or obligations under these Terms without the prior written consent of TRAKQR. TRAKQR may assign any of its rights and obligations hereunder. TRAKQR reserves the right to modify the terms of these Terms from time to time, effective upon posting of an updated version of these Terms on the Service. You are responsible for regularly reviewing these Terms. Continued use of the Service after any such changes shall constitute your consent to such changes. If any provision set forth in these Terms is determined by any court of competent jurisdiction to be unenforceable, invalid or illegal, such provision shall be interpreted to have the broadest application as shall be enforceable, valid and legal, provided, however that if such provision cannot be interpreted to be enforceable, valid or legal to any extent, such provision shall be severed. The invalidity, illegality or unenforceability of any particular provision of these Terms shall not affect the other provisions hereof, which shall continue in full force and effect. No failure or delay in exercising any right hereunder by TRAKQR shall operate as a waiver thereof, nor will any partial exercise of any right hereunder preclude further exercise. These Terms will be governed by and interpreted under the laws of the State of Arkansas, without regard to its choice of law provisions. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in Arkansas. Notwithstanding the foregoing, TRAKQR shall be entitled to seek injunctive or declaratory relief in any court of competent jurisdiction. The section titles in this Agreement are solely used for the convenience and have no legal or contractual significance.
IF YOU HAVE QUESTIONS REGARDING THESE TERMS OR WISH TO OBTAIN ADDITIONAL INFORMATION, PLEASE SEND AN E-MAIL TO firstname.lastname@example.org