1. ATTENTION! THE FOLLOWING TERMS AND CONDITIONS WILL BE LEGALLY BINDING ON CUSTOMER UPON EXECUTION OF THE TRACKABOUT STANDARD SUBSCRIPTION SERVICES AGREEMENT (SSA). CUSTOMER SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICES BEFORE EXECUTING THE SSA.
2. Terms of Service. Customer acknowledges and agrees to the following Terms of Service, which together with the terms of the TrackAbout SSA entered into between Customer and TrackAbout, shall govern Customer's access and use of the Services (the "Agreement"). Capitalized terms not otherwise defined herein shall have the meaning given to them in Section 9 below. In addition, Customer agrees that unless explicitly stated otherwise, any new features that augment or enhance the Services, and/or any new Services subsequently purchased by the Customer will be subject to this Agreement.
2.1. Customer Must Have Internet Access. DSL, cable or another high speed Internet connection is required for proper transmission of the Services. Customer is responsible for procuring and maintaining the network connections that connect the Customer network to the Services, including, but not limited to, "browser" software that supports protocol used by TrackAbout and to follow logon procedures for Services that support such protocols. Customer agrees that TrackAbout will not be responsible for wireless networking capabilities that Customer may deploy in allowing hand-held barcode or RFID scanners to communicate with a TrackAbout provided internet connection. TrackAbout is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such software or for any compromise of data transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned or operated by TrackAbout. TrackAbout assumes no responsibility for the reliability or performance of any connections as described in this Section.
2.2. Customer Must Use Approved Hardware and ID Tags. The Services rely upon accurate communication of asset identification information contained on the ID Tags and read by the Hardware. Both the ID Tags and the Hardware must be approved for use with the Services in order to assure that information is correctly transmitted for use by the Services.
2.3. Accuracy of Customer's Contact Information. Customer shall provide accurate, current and complete information on Customer's legal business name, address, primary contact email address and phone number, and maintain and promptly update this information if it should change.
2.4. Users: Passwords, Access, And Notification. Customer shall authorize access to and assign unique passwords and user names to authorized Users of the Services. User logins are for designated Users and cannot be shared or used by more than one User, but any User login may be reassigned to another User as needed. Customer will be responsible for the confidentiality and use of User's passwords and user names. Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Services or under Customer's account. TrackAbout will act as though any Electronic Communications it receives under Customer's passwords, user name, and/or account number will have been sent by Customer. Customer agrees to immediately notify TrackAbout if Customer becomes aware of any loss or theft or unauthorized use of any of Customer's passwords, user names, and/or account number.
2.5. Customer's Lawful Conduct. The Services allows Customer to send Electronic Communications directly to TrackAbout and to third parties. Customer shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Services, including without limitation those related to privacy, electronic communications and anti-spam legislation. Customer shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Services and obtain any permits, licenses and authorizations required for such compliance. Without limiting the foregoing, (i) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Customer shall not permit Users to access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located. Customer will not send any Electronic Communication from the Services that is unlawful, harassing, libelous, defamatory or threatening. Except as permitted by this Agreement, no part of the Services may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the Services by any means other than through the interfaces that are provided by TrackAbout. Customer shall not do any "mirroring" or "framing" of any part of the Services, or create Internet links to the Services which include log-in information, user names, passwords, and/or secure cookies. Customer will not in any way express or imply that any opinions contained in Customer's Electronic Communications are endorsed by TrackAbout. Neither Customer, nor someone acting on Customer's behalf, will use the Services to target for solicitation any TrackAbout customers for purposes of providing any competitive product. Customer shall ensure that any use of the Services by Customer's Users is in accordance with the terms and conditions of this Agreement.
2.6. Third Party Websites, Products and Services. TrackAbout may offer certain Third Party
Hardware, ID Tags and other products for sale under Estimate/Order Forms. Any purchase of such Third
Party Hardware or ID Tags by Customer shall be subject to the terms specified in such Estimate/Order
Forms. In addition, TrackAbout or certain third party providers may offer links to other websites, resources,
Third Party Applications or Services, including implementation, customization and other consulting Services
related to customers' use of the Services. TrackAbout does not warrant any such Third Party Applications
or Services except as set forth in the Estimate/Order Form, whether or not such Third Party Applications
are designated by TrackAbout as "certified," "approved", "recommended" or otherwise, or the Services are
provided by a third party that is a member of a TrackAbout partner program. Any purchase by Customer of
any Third Party Application is solely between Customer and the applicable third party provider.
TrackAbout is not responsible for the availability or the quality, accuracy, integrity, fitness, safety, reliability, legality, or any other aspect of such Third Party Applications or Services that Customer may purchase or connect to through the Services, or any descriptions, promises or other information related to the foregoing. If Customer installs or enables Third Party Applications or Services for use with the Services, Customer agrees that TrackAbout may allow such third party providers to access Customer Data as required for the interoperation of such Third Party Applications with the Services, and any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider. TrackAbout shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by third party providers. No purchase of such Third Party Applications or Services is required to use the Services.
2.7. Transmission of Data. Customer understands that the technical processing and transmission of Customer's Electronic Communications is fundamentally necessary to Customer's use of the Services. Customer expressly consents to TrackAbout's interception and storage of Electronic Communications and/or Customer Data, and Customer acknowledges and understands that Customer's Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by TrackAbout or Customer. Customer acknowledges and understands that changes to Customer's Electronic Communications may occur (including but not limited to encryption and compression) in order to conform and adapt such data to the technical requirements of connecting networks or devices. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Customer agrees that TrackAbout is not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by TrackAbout, including, but not limited to, the Internet and Customer's local network.
2.8. TrackAbout Support. As part of the Services, TrackAbout will provide Customer with online information and reasonable telephone assistance to Customer in its use of the Services. TrackAbout also offers optional higher level support and "for-fee" training, professional Services consultation, and other specialized support services. Customer acknowledges that TrackAbout has extensive experience helping Customers improve utilization and realization of benefits of the Services, and that not following the advice of TrackAbout and/or not engaging TrackAbout or other TrackAbout authorized implementation partner in the provision of Professional Services may substantially limit Customer's ability to successfully utilize the Services or to enjoy the power and potential of the service.
2.9. Security/Data Integrity. TrackAbout shall maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data. In the event of a breach of this provision, TrackAbout will use commercially reasonable efforts to correct the Customer's Data or restore the Customer's Data as quickly as possible.
2.10. Confidential Information. For purposes of this Agreement, "Confidential Information" means
the terms of this Agreement including the pricing and other terms reflected in all Estimates, Customer Data,
TrackAbout technology, knowhow and technical information, product designs, business and marketing
plans and business processes, and all confidential and proprietary information of a party ("Disclosing Party")
disclosed to the other party ("Receiving Party"), whether orally or in writing, that is clearly identified in writing
or verbally at the time of disclosure as confidential. Confidential Information shall not include information
which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become
known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or
(4) the Receiving Party becomes aware of from a third party not bound by non-disclosure obligations to the
Disclosing Party and with the lawful right to disclose such information to the Receiving Party.
Receiving Party agrees: (a) to keep confidential all Confidential Information disclosed to it by the Disclosing Party; (b) not to use or disclose the Confidential Information of the Disclosing Party except to the extent necessary to perform its obligations or exercise rights under this Agreement, except with the Disclosing Party's prior written consent; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and to make Confidential Information available to authorized persons only on a "need to know" basis. Either party may disclose Confidential Information on a need to know basis to its contractors and Services providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their Services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is permitted by law or order of a court or other governmental authority or regulation.
2.11. Customer Data. As between TrackAbout and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer. Customer acknowledges and agrees that in connection with Services, TrackAbout, as part of its standard Services offering, makes backup copies of the Customer Data in Customer's account and stores and maintains such data for a period of time consistent with TrackAbout standard business processes.
2.12. TrackAbout Intellectual Property Rights. Customer agrees that all rights, title and interest in and to all intellectual property rights in the Services are owned exclusively by TrackAbout or its licensors. Except as provided in this Agreement, the license granted to Customer does not convey any rights in the Services, express or implied, or ownership in the Services or any intellectual property rights thereto. In addition, TrackAbout shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including users, relating to the operation of the Services unless expressly stated otherwise. Any rights not expressly granted herein are reserved by TrackAbout. TrackAbout services marks, logos and product and service names are marks of TrackAbout or (the "TrackAbout Marks"). Customer agrees not to display or use the TrackAbout Marks in any manner without TrackAbout's express prior written permission. The trademarks, logos and service marks of Third Party Application providers ("Marks") are the property of such third parties. Customer is not permitted to use these Marks without the prior written consent of such third party which may own the Mark.
3.1. Warranty of Functionality. TrackAbout warrants that the Services (i) will achieve in all material respects the functionality described in written information provided to the Customer applicable to the products/services purchased by Customer, and (ii) such functionality will not be materially decreased during the Term. Customer's sole and exclusive remedy for TrackAbout's breach of this warranty shall be that TrackAbout shall be required to use commercially reasonable efforts to modify the Services to achieve in all material respects the functionality described and if TrackAbout is unable to restore such functionality, Customer shall be entitled to terminate the Agreement and receive a pro-rata refund of the Annual Maintenance fees (but not the Access Fees) paid for under the Agreement for its use of the Services for the terminated portion of the Term. TrackAbout shall have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem, and such notice must be sent to email@example.com. The warranties set forth in this Section 3.1 are made to and for the benefit of Customer only. Such warranties shall only apply if the applicable Services have been utilized in accordance with written information provided to Customer, this Agreement and applicable law.
3.2. No Virus Warranty. TrackAbout warrants that the Services will be free of viruses, Trojan horses, worms, spyware, or other such malicious code ("Malicious Code"), except for any Malicious Code contained in Customer-uploaded attachments or otherwise originating from Customer.
3.3. Hardware and ID Tag Warranties. TrackAbout will .pass through. any warranty offered by the manufacturers of Hardware and ID Tags to the extent provided therein. Customer agrees that they have primary responsibility for Hardware or ID Tag warranty problems even if TrackAbout attempts in good faith to assist customer in solving that associated warranty problem.
4. Disclaimer of Warranties. EXCEPT AS STATED IN SECTION 3 ABOVE, TRACKABOUT DOES NOT REPRESENT THAT CUSTOMER'S USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICES AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICES AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER'S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 3 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY TRACKABOUT. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON INFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER'S PURPOSES.
5. Limitations of Liability. CUSTOMER AGREES THAT THE CONSIDERATION WHICH
TRACKABOUT IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR
ASSUMPTION BY TRACKABOUT OF THE RISK OF CUSTOMER'S INCIDENTAL OR CONSEQUENTIAL
DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR LOST PROFITS OR
REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL OR EXEMPLARY
DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM
BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE
OF ACTION AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Except with regard to amounts due under this Agreement, and a party's breach of Section 2.11 (Confidential Information), the maximum liability of either party to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of the Services, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, negligence, tort, or otherwise, shall in no case exceed the equivalent of 12 months in subscription fees applicable at the time of the event. In the event of a breach of Section 2.10 (Confidential Information) of this Terms of Services, the maximum liability of either party shall be an amount equal to two (2) times the equivalent of 12 months of subscription fees applicable at the time of the event. The essential purpose of this provision is to limit the potential liability of the parties arising from this Agreement. The parties acknowledge that the limitations set forth in this Section are integral to the amount of fees charged in connection with the license of the Services and that, were TrackAbout to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher.
THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY'S INDEMNITY OBLIGATIONS SET FORTH IN SECTION 11 BELOW. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer.
6.1. Infringement. TrackAbout will indemnify, defend and hold Customer harmless from and against
any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees)
of a third party (collectively, "Losses") incurred arising out of or in connection with a claim, suit, action, or
proceeding brought by any third party against Customer alleging that the use of the Services as permitted
hereunder infringes any copyright, trademark, or misappropriation of a trade secret of a third party, provided
that Customer (a) promptly gives TrackAbout notice of the claim, suit, action, or proceeding; (b) gives
TrackAbout sole control of the defense and related settlement negotiations; and (c) provides TrackAbout
with all reasonably available information and assistance necessary to perform TrackAbout's obligations
under this paragraph.
Excluded from the above indemnification obligations are claims to the extent arising from (a) use of the Services in violation of this Agreement or applicable law, (b) use of the Services after TrackAbout notifies Customer to discontinue use because of an infringement claim, or (c) modifications to the Services made other than by TrackAbout.
If the Services is held to infringe, TrackAbout will, at its own expense, in its sole discretion use commercially reasonable efforts either (a) to procure a license that will protect Customer against such claim without cost to Customer; (b) to replace the Services with a non-infringing Services, or (c) if (a) and (b) are not commercially feasible, terminate the Agreement and refund to the Customer a pro-rata refund of the Subscription Fees paid for under the Agreement for the terminated portion of the Term. The rights and remedies granted Customer under this Section 6.1 state TrackAbout's entire liability, and Customer's exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party, whether arising under statutory or common law or otherwise.
6.2. Disclosure of Customer Data. TrackAbout will indemnify, defend and hold Customer harmless from and against any Losses resulting from
a claim, suit, action, or proceeding brought by any third party against Customer that arises out of or results
directly from TrackAbout's gross negligence or willful misconduct in preventing unauthorized access to
confidential Customer Data, as determined by a court of competent jurisdiction in connection with a claim by
a third party alleging a breach of confidentiality.
When TrackAbout is at fault but such fault does not rise to the level of gross negligence or willful misconduct, TrackAbout will indemnify Customer up to an amount equal to two (2) times the equivalent of 12 months of Subscription Fees applicable at the time of the event, from and against any Losses incurred by Customer with respect to any third party claim, suit, action, or proceeding arising out of or relating to TrackAbout's breach of Section 2.10 (Confidential Information) of this Terms of Services.
TrackAbout's indemnification obligations under this Section 6.2 are expressly premised upon Customer (a) promptly giving TrackAbout notice of any such third party claim, suit, action, or proceeding; (b) giving TrackAbout sole control of the defense and related settlement negotiations; and (c) promptly providing TrackAbout with all reasonably available information and assistance necessary to perform TrackAbout's obligations under this Section 6.2. Provided that TrackAbout complies with this Section 6.2, Customer shall be entitled as its sole and exclusive remedy to terminate the Agreement and receive a pro-rata refund of the subscription fees paid for under the Agreement for the terminated portion of the Term.
6.3. Customer's Indemnity. Customer shall indemnify, defend, and hold TrackAbout harmless from and against any and all Losses resulting from a claim, suit, action, or proceeding brought by any third party against TrackAbout that arises out of or results from a claim by a third-party (i) alleging that the Customer Data or any trademarks or Services marks other than TrackAbout Marks, or any use thereof, infringes the intellectual property rights or other rights, or has caused harm to a third party, or (ii) arising out of Customer's breach of Section 2.4 (Customer's Lawful Conduct) or 2.10 (Confidential Information) above, provided that TrackAbout (a) promptly provides Customer notice of the claim, suit, action, or proceeding; (b) gives Customer sole control of the defense and related settlement negotiations; and (c) provides Customer with all reasonably available information and assistance necessary to perform Customer's obligations under this paragraph.
6.4. Survival. The indemnification obligations contained in this Section 6 shall survive termination of this Agreement for one year.
7.1. Suspension for Delinquent Account. TrackAbout reserves the right to suspend Customer's and any Customer Affiliates' access to and/or use of the Services for any accounts (i) for which any payment is due but unpaid but only after TrackAbout has provided Customer two (2) delinquency notices, and at least sixty (60) days have passed since the transmission of the first notice ("Delinquent Account Status"), or (ii) for which Customer has not paid for the renewal term and has not notified TrackAbout of its desire to renew the Services by the End Date of the then current term. The suspension is for the entire account and Customer understands that such suspension would therefore include Affiliate sub-accounts. Customer agrees that TrackAbout shall not be liable to Customer or to any Customer Affiliate or other third party for any suspension of the Services pursuant to this Section 7.1.
7.2. Suspension for Ongoing Harm. Customer agrees that TrackAbout may, with reasonably contemporaneous telephonic notice to Customer, suspend Customer's access to the Services if TrackAbout reasonably concludes that Customer's Services are being used to engage in denial of services attacks, spamming, or any other illegal activity, and/or use of Customer's Services is causing immediate, material and ongoing harm to TrackAbout or others. In the extraordinary event that TrackAbout suspends Customer's access to the Services, TrackAbout will use commercially reasonable efforts to limit the suspension to the offending portion of the Services and resolve the issues causing the suspension of Services. Customer agrees that TrackAbout shall not be liable to Customer nor to any third party for any suspension of the Services under such circumstances as described in this Section 7.2.
7.3. Termination for Cause, Expiration. Either party may immediately terminate this Agreement
and all Estimates/Order Forms issued hereunder in the event the other party commits a material breach
of any provision of this Agreement which is not cured within thirty (30) days of written notice from the non-
Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and shall be sent to the General Counsel of the alleged breaching party at the address listed in the heading of this Agreement (or such other address that may be provided pursuant to this Agreement) ("Notice"). Upon termination or expiration of this Agreement, Customer shall have no rights to continue use of the Services. If this Agreement is terminated by Customer for any reason other than a termination expressly permitted by this Agreement, Customer agrees that TrackAbout shall be entitled to all of the fees due under this Agreement for the entire Term. If this Agreement is terminated as a result of a breach on TrackAbout's part, TrackAbout shall refund the pro rata portion of any subscription fee paid by Customer for the terminated portion of the Term.
7.4. Handling of Customer Data In The Event Of Termination. Customer agrees that following termination of Customer's account and/or use of the Services, TrackAbout may immediately deactivate Customer's account and that following a reasonable period of not less than 90 days shall be entitled to delete Customer's account from TrackAbout's "live" site. During this 90 day period and upon Customer's request, TrackAbout will grant Customer limited access to the Services for several days for the sole purpose of permitting Customer to retrieve Customer Data, provided that Customer has paid in full all good faith undisputed amounts owed to TrackAbout. Thereafter and for the period set forth in Section 2.11, upon Customer's written request, TrackAbout will retrieve Customer Data on backup media from archives at Customer's expense at the then applicable TrackAbout hourly rate for such Professional Services. Customer further agrees that TrackAbout shall not be liable to Customer nor to any third party for any termination of Customer access to the Services or deletion of Customer Data, provided that TrackAbout is in compliance with the terms of this Section 7.4.
8. Modification; Discontinuation of Services.
8.1 To the Services. TrackAbout may make modifications to the Services or particular components of the Services from time to time and will use commercially reasonable efforts to notify Customer of any material modifications. TrackAbout reserves the right to discontinue offering the Services at the conclusion of Customer's then current Term. TrackAbout shall not be liable to Customer nor to any third party for any modification of the Services as described in this Section 8.1.
8.2 To Applicable Terms. If TrackAbout makes a material change to any applicable URL Terms, then TrackAbout will notify Customer by either sending an email to the notification email address or to the Customer's address of record. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify TrackAbout via firstname.lastname@example.org within thirty days after receiving notice of the change. If Customer notifies TrackAbout as required, then Customer will remain governed by the URL Terms in effect immediately prior to the change until the end of the then, current term for the affected Services. If the affected Services are renewed, it will be renewed under TrackAbout's then current URL Terms.
9. Services Level Commitment
9.1 TrackAbout Commitment. TrackAbout commits to provide 99% uptime with respect to Services during each month of the Term, excluding regularly scheduled maintenance times. If in any month this uptime commitment is not met by TrackAbout and Customer was negatively impacted (i.e.,attempted to log into or access the Service and failed due to the unscheduled downtime of the Service), TrackAbout shall provide, as the sole and exclusive remedy, a service credit equal to one month's Subscription Fee for the use of the Services upon successful proof that the downtime was not the result of network transmission issues.
9.2 Scheduled and Unscheduled Maintenance. Regularly scheduled maintenance time
does not count as downtime. Maintenance time is regularly scheduled if it is communicated in
accordance with the notice section set forth below at least two full business days in advance of the
maintenance time. Regularly scheduled maintenance time typically is communicated at least a week
in advance, scheduled to occur at night on the weekend, and takes less than 10-15 hours each
quarter. TrackAbout hereby provides notice that every Sunday night 9:00pm . 12:00am Eastern Time
is reserved for routine scheduled maintenance for use as needed.
TrackAbout in its sole discretion may take the Service down for unscheduled maintenance and in that event will attempt to notify customer in advance in accordance with the Notice section set forth below. Such unscheduled maintenance will be counted against the uptime guarantee.
9.3 Updates/Notice. This Service Level Commitment may be amended by TrackAbout in its discretion but only after providing thirty days advance notice. Notices will be sufficient if provided to a user designated as an administrator of your TrackAbout account either: (a) as a note on the screen presented immediately after completion of the log in authentication credentials at the log in screen, or (b) by email to the primary email address for Customer's account.
"Access Fee" means the one-time fee charged by TrackAbout for initial access to the Services. A portion of the Access Fee may include, depending on the service, the cost of implementation.
"Affiliates" means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with Customer, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of Customer.
"Customer Data" means all electronic data, asset data or ID Tag information submitted by Customer to the Services through the Hardware using Electronic Communications.
"Electronic Communications" means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted to or through the Services.
"Estimate/Order Form" means a TrackAbout estimate, renewal notification or order form executed by Customer and accepted by TrackAbout which specifies the Services, including the Access Fees, Subscription Fees or Professional Services fees to be provided by TrackAbout, and any Hardware fees, subject to the terms of this Agreement.
"Hardware" means any barcode scanner, radio frequency identification device (RFID) or telemetry device and related accessories used in reading the discrete tracking numbers on assets which are being tracked using the Services.
"ID Tags" means barcode, radio frequency identification (RFID) or other uniquely identifiable tags that are affixed to assets and that can be read by the Hardware and serves as the update for tracking the status and movement of assets in that Customer's database.
"Professional Services" means labor time incurred on behalf of a Customer and any other associated costs of providing that service including travel and out-of-pocket expenses. In certain circumstances Professional Services and Support Services may be included in the Subscription Fees.
"Services" means TrackAbout's online tracking rental software and associated add-on modules that are purchased by Customer from TrackAbout in the Estimate/Order Form and any subsequent Estimate/Order Form, from time to time, for associated modules that may be added-on at a future date.
"Subscription Fees" shall mean the periodic payment (whether by monthly, quarterly or annual billing) that covers the ongoing operation of the Services including maintenance of Customer Data and the technology infrastructure on which such information is processed and stored. Subscription Fees do not include Access Fees and Professional Services fees.
"Support Services" means those Professional Services that are provided through phone, e-mail, correspondence or other means. Support Services may be included in Subscription Fees or may be separately billed as Professional Services by TrackAbout in accordance with its pricing standards at the time an Estimate/Order Form is executed.
"TECSYS" means TECSYS, Inc. a supply chain management software provider that has integrated its software solutions with the Services.
"Third Party Applications" means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Services, and are identified as third party applications, including TECSYS or other ERP applications that use TrackAbout asset tracking information.
"Users" means individuals who are authorized by Customer to use the Services, for whom access to the Services has been granted, and who have been supplied user identifications and passwords by Customer (or by TrackAbout at Customer's request). Users may include, but are not limited to, Customers, Customer's Customers and their Affiliates' employees, consultants, contractors and agents.
"URL Terms" means the terms with which Customer must comply and as evidenced by this written Agreement, and any subsequent updates to the Terms of Service which will be posted at corp.trackabout.com/tos